P L D 1962 (W (PLP)

The case was fixed for the payment of the court‑fee on the 21st of September 1961, on that day the defendants put in an application that they should be permitted to claim set‑off in forma pauperis. This application was opposed by the petitioner- respondent. The Administrative Civil Judge, dismissed that application by his order dated the 10th of October 1961. It is against this order that the present revision petition has been filed by the defendant‑petitioners.

2. The learned counsel for the respondent raised a preli minary objection that a revision against this order was not competent. The learned Administrative Civil Judge after dismissing the application for claiming set‑off in forma pauperis struck the plea of the defendants as regards the set‑off. Thus, the result of the order has been a final adjudication as far as the claim of the defendant‑petitioners to set‑off is concerned. This order is revisable as the lower Court had refused to exercise jurisdiction with which it was vested in deciding the matter which was in dispute before it. I would, therefore, hold that the' revision petition is competent.

3. The learned counsel for the defendant‑petitioners on merit challenged the order of the learned Administrative Civil Judge and he argued that the lower Court was wrong in relying on Coates v. The Secretary of State for India‑in‑Council (54 P R 1905), as the authority was not based on the present Civil Procedure Code. He further contended that the case before the Judges in the year 1905 did not relate to a claim of set‑off. It simply laid down that a defendant could not be permitted to defend a suit in forma pauperis. The learned counsel has cited Doogra Churn Doss v. Nttokally Dosse and others (5 Cal. 819), in which case the Court permitted the defendant in exercise of its discretion to defend a case in forma pauperis. Hukam Chand Boid v. Kamalanand Singh (33 Cal. 927) and Nanda Kishore Singh v. Ram Golam Sahu (40 Cal. 955), have also been cited by the learned counsel and it has been urged that the Civil Procedure Code not being exhaustive there was always an inherent jurisdiction in the Court to pass orders as are necessary in the interest of justice. As there was no specific provision in the Code prohibiting the plea of set‑off being raised in forma pauperis the Court should exercise its inherent jurisdiction and permit the defendant to do that. The learned counsel has further relied on Order VIII, rule 6 and argued that the defendant when he claims a set‑off is in the position of a plaintiff, on such a plea of set‑off the plaintiff is required to put in a written statement, and the defendant is permitted to put in his replication. This would show that a defendant claiming a set‑off is virtually a plaintiff so far as the amount claimed by him as set‑off is concerned. Elucidating this point the learned counsel has further urged that the defendant instead of claiming a set‑off in the suit filed against him could very easily have filed a suit for the recovery of the amount which he claimed as a set‑off in defence and in that case the Court could not have refused him to prosecute his claim as a plaintiff in forma pauperis. It has been further urged by the learned counsel that In column 1 of Schedule I, Court Fees Act, plaint (written statement pleading a set‑off or counter‑claim) or memorandum of appeal (not other wise provided for in this Act) (or of cross‑objection presented to any Civil or Revenue Court except those mentioned in section 3) are chargeable ad valorem court‑fees as mentioned In column 3 of the Schedule. It has been urged that the written statement pleading a set‑off or counter‑claim were bracketed to indicate that such a written statement was in the nature of a plaint for purposes of court‑fee and It is, therefore, argued that since such a written statement being in the nature of a plaint the defendant should be permitted to claim set‑off in forma pauperis just as under Order XXXIII, rule 1, a plaintiff is permitted to pursue his claim in forma pauperis.

4. The learned counsel for the respondent on the authority of Coates v. The Secretary of State for India‑in‑Council, and In re: U. Ananthakrishna Baliga (1943 Mad. 177) has argued that the matter of the conduct of the proceedings in forma pauperis has been specifically covered by means of the Statute and consequently the Court had no inherent power to permit a defendant to defend the suit in forma pauperis even if the defence was in the form of a set‑off. In the short judgment of 54 P R 1905, the ratio is that the subject of the defence was governed by Statute and as there was no provision for a defendant to defend the suits in forma pauperis such a course could not be permitted. In re : U. Ananthakrishan Baliga, the question was considered in connection with the review petitions which were filed by the respondent against four ex parte appellate judgments against him. The petitioner prayed for permission to prosecute his review petitions in forma pauperis. The permission was refused. The argument adopted was that the provisions of Order XXXIII and Order XLIV only permitted the conduct of a suit or an appeal in forma pauperis. Consequently, it was the plaintiff or an appellant alone who was entitled to prosecute his case or the appeal in forma pauperis. It was further remarked that there was no discretion in the Court to permit the review petitions being prosecuted in forma pauperis as the Statute did not contain any such provision. Order XXXIII, rule 1, lays down as follows: ‑ "Subject to the following provisions, any suit may be instituted by a pauper. Explanation.‑A person is a `pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject‑matter of the suit." The relevant portion of Order XLIV, rule 1, lays down that any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an appli cation accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable. Section 4 of the Court‑fees Act prohibits the filing, exhibiting or recording in of any document of any kind specified in the First or Second Schedule to the Act unless the fee prescribed for such a document was paid. A written statement pleading a set‑off is such a document. It would, therefore, be clear that such a written statement cannot be accepted unless the fee prescribed is paid. The provisions relating to the proceedings which can be conducted in the forma pauperis have been clearly mentioned in the Statute. They cannot be extended by any analogy on the basis of what has been remarked in Order VIII, rule

6. Order VIII, rule 6, simply lays down the time at which a set‑off can be claimed. It lays down as follows: ‑ "(1) Where in a suit for the recovery of money the defendant claims to set‑off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set‑off. (2) The written statement shall have the same effect as a plaint in a cross‑suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set‑off but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set‑off." The mere fact that it has been described that a person claiming a set‑off will have the same character as a plaintiff in a suit, would not mean that his written statement could be treated as a plaint and he could be regarded as a plaintiff making a claim. There is no doubt that 54 P R 1905 was decided before the present Civil Procedure Code came into operation, but the ratio decidendi of that authority would hold good even now, because it has been laid down that when there is specific provision relating to a matter in a Statute the Court cannot exercise its discretion to extend the operation of such a provision. Although the question of a written statement claiming set‑off was not directly in issue In re: U. Ananthakrishna Baliga, but the question was incidentally considered in that case and the remarks in that judgment which were given by Mr. Justice Abdur Rehman (Retired Judge of the Supreme Court) when his Lordship was a Judge of the Madras High Court, are very pertinent and lend support to the view that has been taken by the Administrative Civil Judge. I, therefore, find no force in this petition which is dismissed with costs. The case will be sent back to the lower Court for decision on merits. K. M. A. Petition dismissed,