( 1 ) THIS revision is from an interlocutory order passed by Shri V. S. Pyasi, 2nd additional District Judge, on a preliminary objection raised by the plaintiff.

( 2 ) THE learned trial Judge rejected the plaintiffs objection that (1) paragraphs 11, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24 and 28 be struck out as being unnecessary, irrelevant and frivolous, (2) likewise, paragraphs 2 and 27 of the written statement be also directed to be struck out.

( 3 ) THE plaintiff has been described as "singhai Karelal Kundanlal Trust, through managing trustee Balchand Malaiya"'. It is averred in the plaint that the trust has been carrying on business of Kachchi Adhat (Commission agency) from october 24, 1930. By resolution dated December 28, 1972, the trust committee has appointed Bal Chand Malaiya, managing trustee to institute the present suit.

( 4 ) THE defendants in their written statement disputed the plaintiffs competence to sue. They have given different reasons-It is said inter alia in paragraph 27 that the trust was cancelled by a registered deed dated March 31, 1959.

( 5 ) IN the plaintiff's application to strike out these pleadings certain facts to support the plaintiffs competence to sue have been alleged.

( 6 ) IT is abundantly clear that the dispute about the plaintiff's competence to sue has to be tried. It cannot be said that the defendants cannot challenge the plaintiff's competence to sue. It must, therefore, be said that the learned trial judge was right in rejecting that part of the plaintiff's application. To that extent this revision must be dismissed,

( 7 ) AS regards the second part of the plaintiffs application dated October 12, 1973, it is contended by the learned counsel for the petitioner that the question as to the refund of Sales-tax and the defendants' right of retention is a frivolous pleading, which is not available to the defendants. It is aimed at mere harassment of the plaintiff by unnecessarily protracting litigation. These paragraphs of the written statement must, therefore, be ordered to be struck out. Shri Verma learned counsel for the defendants tells me that the substance of those paragraphs is as follows: The plaintiff recovered from the defendants certain sums on account of Sales-tax which the plaintiff paid to tbe Sales-tax department. But now the plaintiff has claimed refund of the Sales-tax from the sales-tax Department If that Sales-tax is refunded by the Sales-tax department to the plaintiff, the defendants will be entitled to that amount. Moreover, the defendants may be made liable to pay Sales-tax. Therefore, the defendants are entitled to retain the amount claimed in the suit.

( 8 ) IT is clear from the plaint that the suit claim is in respect of two items. It is averred in the plaint that the defendant's firm purchased from cultivators in the plaintiffs Kachchi adhat (i) 31 bags of Masoor for Rs, 4748-74 on November 23, 1972 and (ii) 47 bags of Masoor for Rs. 6939. 63 on November 25, 1972. The plaintiff trust paid the amount on behalf of the defendants to the cultivators (vendors ). The defendants were liable to repay the amount within seven days. But they did not so repay in spite of repeated demands. Total of these two items is Rs. 11,688. 37 Ps. , on which the plaintiff has claimed interest Rs. 536,94 and in the result a decree for Rs. 12,225-31 Ps. Thus the suit is for reimbursement of the amount paid by the plaintiff on behalf of the defendants in respect of two specified transactions.

( 9 ) IN the impugned paragraphs of the written statements, see tor instance paragraph 15, the defendants have alleged that from the year 1963-64 to 1972-73, the plaintiff recovered from the defendants firm Rs. 18,617. 88 Ps. on account of Sales-tax, This follows other allegations, the substance of which has been stated above.

( 10 ) EVEN according to the defen-dants' allegation, the plaintiff has merely claimed refund of Sales-tax. One does not know whether that claim will be allowed or not; or when w

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