Baidyanath Dutta vs Kanhailal Marwari and Another

James, J.—The plaintiff in this litigation was a shop-keeper who was a tenant of the defendant. From time to time the defendant took advances of money or required cloth on credit from the plaintiff and on one occasion the plaintiff paid the municipal tax for the house which the defendant had ordinarily to pay. There was an understanding that the debts of the defendant were to be set-off against the rent payable to the defendant as the rent fell due; but the defendant ignoring these advances instituted a suit for arrears of rent against the plaintiff. It would have been open to the plaintiff under Order 8, Rule 6 to make his claim by way of a set-off in the rent suit, paying court-fee on the written statement; but he preferred to institute a separate cross-suit.

The rent suit was decreed as also the plaintiff''s suit; and the defendant, the plaintiff''s landlord, has come in second appeal against the decree which is concerned with his debt to the plaintiff.

Mr. Chatterji on behalf of the defendant-appellant suggests that the learned Subordinate Judge attached too much weight to entries in the plaintiff''s book of account. Before the learned Subordinate Judge it was urged that the book was not genuine because it was not produced before the Income Tax Officer; and indeed it would appear from a reply given, by the plaintiff under cross-examination that he did not produce his book before the Income Tax Officer; but there is some ambiguity and the point is not clear. In argument before the learned Subordinate Judge, the signature of the Income Tax Officer was pointed out on the questioned book actually at the page in which the items affecting the defendant were found.

However that may be, the learned Subordinate Judge came to the conclusion that the book was an account book kept in the ordinary course of business; and he considered that it did corroborate the oral testimony of the plaintiff, which proved that the money and goods in respect of which he claimed a decree had been paid to the plaintiff, and that the municipal tax had been paid on the plaintiff''s behalf. It is suggested that the book ought not to have been taken in evidence u/s 34, Evidence Act ; but the finding that the book was kept in the ordinary course of business, is a finding of fact which was within the province of the learned Subordinate Judge.

It is argued in the second place that the plaintiff had no cause of action because he ought to have pleaded these payments and advance by way of set-off in the suit for rent. It appears that he did in fact mention them in his written statement in that suit; but he had by that time instituted a separate suit and the two suits were not tried together, so that the question of the amount of set-off to which the tenant might be entitled was not actually in issue in the rent suit. Mr. Chatterji suggests that since it could have been pleaded and set off claimed as a defence in the rent suit, it could not be claimed in a separate suit, citing the analogy of a mortgage suit in which certain items which ought to have been brought into account were left aside and a suit was subsequently instituted in respect of them. In the present instance the two suits went on side by side; and Mr. Mazumdar on behalf of the respondent states before me that an application was-made that they might be tried together, but the application was not allowed. Order 8, Rule 6, provides that the written statement containing a claim to set off shall have the same effect as a plaint in a cross suit.

In the present instance the plaintiff adopted the method of preferring a plaint in a cross-suit which certainly cannot be regarded as illegal, since the two claims which were claims of money were not essentially of the same nature. If the defendant in return for these advances had granted receipts describing the advances as payments on account of rent, the matter might-have been different; but as it was, it appears that there was nothing but an understanding which might or might not be regarded as having the effect of a contract and the present plaintiff was not obliged on pain of losing his advances to claim a set-off in the rent suit.

There is no merit in this appeal which must be dismissed with costs.