A claim of adjustment and satisfaction pleaded by the defendants is in the nature of a plea of payment and not in the nature of either legal or equitable set-off.

Raj Kishore Prasad, J.

1. This rule was obtained by the defendants, against an order dated 1-2-1955, of the Munsif of Giridih, directing court-fee to be paid on Rs. 1,295/- under Schedule 1, Art. 1 of Court-fees Act, which the petitioners claimed in their written statement as adjusted and satisfied towards the rent of the disputed house.

2. The opposite party brought a suit for house rent, at the rate of Rs. 35/- per month, from October, 1950, to August. 1953 for a total sum of Rs. 1,445/-. The petitioners filed their written statement, and in paragraphs 8-10 of their written statement they pleaded adjustment and satisfaction of Rs. 1,2957- towards the house rent from 1-10-1950 to 31-10-1053. The rase of the petitioners was that they were not willing to continue in the house, because it was a bit out of repair.

The opposite party asked them to continue, and -said, that as they had no money with them at that time to construct a pucca roof and floor the petitioners should invest money for that purpose from their own pocket, and the entire cost thus incurred would be adjusted in the rent month by month, and as long as the entire cost Incurred by the petitioners was not adjusted, the rent would not be realized, and would continue to be adjusted in the account of the plaintiffs. According to this agreement the petitioners spent money, and the full details of the expenses incurred were entered in the bahi khata maintained by the petitioners, on the approval of the plaintiffs, as their current account, and the rent had been deposited in this current account of the plaintiffs as agreed to between the parties. The further case of the petitioners was that on 17-7-1953 the plaintiffs stood in need of money, and, therefore, they took Rs. 200 in cash, as advance, from the defendants.

Their case in paragraph 10 of the written statement is that after accounting the cost incurred towards the construction of the house, and the cash advanced came to Rs. 1,347/2/- which was due to the petitioners from the plaintiffs, and out of this Rs. 1,295/- representing the rent from 1-10-1350 to 31-10-1953 was adjusted and satisfied, and Rs. 527-2/- remained due to the defendants from the plaintiffs.

3. The learned Munsif took the view that as the defendants made certain improvements, and advanced certain money, they could maintain a cross suit in respect thereof, and, therefore they were to pay the court-fee on the amount they claimed as adjusted and satisfied towards the rent as it was in the nature of a set-off within the meaning of Schedule 1, Art. 1 of the Court-fees Act. In that view of the matter he directed the defendants to pay the court-fee within 15 days, failing which this part of the defence was to be struck off. Against this order, the petitioners have come up in revision before this Court.

4. In support of the rule Mr. Sudhir Chandra Ghose has argued that the claim of the petitioners in the written statement was in the nature of defence, or confession and avoidance, and not in the nature of a counter claim, or a set-off, and, therefore, no court-fee was leviable on the sum claimed by them as having been adjusted and satisfied.

5. Mr. Mojibur Rahman, appearing for the opposite party, has conceded that the test in such a case is if a cross suit can be filed in respect of the amount claimed by the defendants and if they can bring a separate suit in respect of this amount then certainly they are liable to pay court-fee, because, the claim in such a case would! be in the nature of legal, or, equitable set-off, and Schedule 1, Article 1 of the Court-fees Act would apply to such a case. He has, therefore, attempted to show that the claim of the defendants was such that a separate suit could be instituted in respect thereof, and, as such, court-fee was leviable on the amount claimed by the defendants.

6. Mr. Ghose, in support of his contention that the claim was in the nature of an adjustment or a plea of payment, and not in the nature of a s