M.C. Bhucho Mandi vs Gurcharan Singh

Sat Pal, J.—This petition has been directed against the order dated 25th January, 1997, passed by Civil Judge, Bathinda. By this order, the learned Civil Judge, Bathinda. By this order, the learned Civil Judge has held that the counter-claim of Rs. 50,000/-made by defendant/respondent is only a claim of adjustment and no court fee is required on a plea of adjustment.

Notice of this petition was issued to the respondent. Mrs. Jarnail Kaur appeared on behalf of the respondent on 11th November, 1997 and on her request, the case was adjourned to 15.12.1997. On 15th December, 1997, none appeared on behalf of the respondent and the case was adjourned to 27th January, 1998. On 27th January, 1998, the case was adjourned for today but none has appeared on behalf of the respondent though the case has been called out second time after a pass over was given. In view of this facts, I proceed to dispose of this petition.

Mr. Garg, learned counsel appearing on behalf of the petitioner, submits that in the present case, the petitioner-Municipal Council had filed a suit for recovery of Rs. 5,000/- against the defendant/respondent and the defendant/respondent claimed a sum of Rs. 50,000/- as damages. He further submits that since the amount claimed by the defendant/respondent is more that the amount for which the suit for recovery has been filed, the amount claimed by the defendant cannot be treated as adjustment but on the contrary it will be treated an amount of counter-claim. In support of his submission, the learned counsel has placed reliance on a judgment of this court in Munshi Ram and Others v. Radha Krishan (deceased) and Others, 1975 PLR 151.

After hearing the learned counsel for the petitioner and having perused the impugned order, I am of the opinion that the impugned order cannot be sustained. As held by this court in the case of Munshi Ram (supra), when the defendant claims in a suit an amount excess over the amount claimed by plaintiff, the claim of the defendant has to be considered as counter-claim. The observation in the aforesaid case was based on a decision of the Kerala High Court reported in P.A. Asma Beevi Vs. Commissioner, Municipal Council, Ernakulam and Another, . I fully agree with the observations of this Court in the above-mentioned case.

In view of the above discussion, the petition is allowed and the impugned order dated 25th January, 1997 passed by the learned Civil Judge (Junior Division) is set aside. Consequently, it is held that the claim of the defendant shall be treated as counter-claim and the respondent/defendant shall be required to pay ad valorem court fee in terms of the law laid down by this court in the case of Munshi Ram (supra).

With this order, the petition stands disposed of. A copy of the order be given Dasti on usual payment.