A claim for restitution of benefits received under a contract which is sought to be rescinded on the ground of fraud or misrepresentation is not a set-off and no court-fee is leviable on such a claim.

1. This rule was obtained by the defendant Pramada Prasad Mukherjee against an order of the Subordinate Judge of Dhanbad dated 21-8-1952, refusing, in the first place, certain amendments which were sought to be made in the written statement, and directing, in the second place, court-fee to be assessed on certain items which the petitioner claimed by way of restitution.

2. The opposite party brought the suit on the allegation that on 28-6-1948, there was a Managing Agency Agreement which the parties entered into for a period, of seven years in respect of a colliery known as Ramkrishna Colliery located at. Mouza Pataibari. It was alleged in the plaint that the petitioner took a salami of Rs. 20000 and also a security deposit of Rs. 30000 from the opposite party. There was a further claim that the opposite party had paid the price of 120 tons of coal and the price of water tank amounting to Rs. 20020. The total claim of the opposite party was, therefore, a sum of Rs. 55000. The main allegation in the plaint was that the Managing Agency Agreement was obtained as a result of misrepresentation and fraud practised upon the opposite party. The opposite party prayed for rescission of the contract on the ground that the Agreement was not binding on the parties and for recovery of the sum of Rs. 55000. The main ground of defence was that the Agreement was not vitiated either on account of fraud or on account of misrepresentation. The case of the petitioner was that the Mouza Fatalbari contained valuable seams of coal and, in fact, the opposite party had raised 5398 tons of coal valued at Rs. 75572. It was said that the opposite party were not in a satisfactory financial position and that was the reason why they had to abandon the colliery.

There was a further plea taken by the petitioner that if the court should hold that the Agreement was vitiated on account of fraud and misrepresen-tation, the petitioner was entitled to restitution and the opposite party were bound to restore such benefits they have received under the contract. The petitioner, therefore, claimed that the opposite party should refund the price of 5398 tons of coal that they have raised.

Written statement was filed on 17-3-1952, The petitioner filed an application on 20-8-1952, asking the court to allow an amendment to the written statement. In this application the petitioner made claims as regards eight items. The learned Subordinate Judge allowed the written statement to be amended only so far as items 1 and 4 are concerned and rejected the prayer of the petitioner as regards the other six items,

3. There are two matters argued in this case; In the first place, counsel for the petitioner argues that there is no justification why the Subordinate Judge should disallow the claim of the petitioner to amend the written statement as regards six items. The reason given by the Subordinate judge for disallowing the prayer of the petitioner is that "no such case was made in the written statement before." These items relate to the claim of the petitioner with respect to the price of materials supplied to the opposite party, damage to the building, cost of remedying violation under the Indian Mines Act, cleaning debris in the quarry and loss of income due to circumstance that the opposite party had taken away boiler parts.

Counsel for the petitioner contends that items 1 and 2 were matters which arise directly out of the contract to which the parties entered into As regards the other six items, counsel maintains that the petitioner ought not to be driven to a separate suit for seeking relief. Counsel said that these items arise out of the same transaction, and it was essential that amendment on these items should be allowed and the petitioner ought not to be required to file a separate suit. The issues in this case appear to have been framed on 20-3-1952, and the preliminary issues, namely, issues 7 and 8, have been decided, but it does not appear that the case has yet act