' Province of the Punjab and its functionaries have filed the present revision petition calling into question the judgment and decree, dated 23-9-1990 passed by the Additional District Judge, Faisalabad whereby the judgment/decree, dated 2-5-1999 of the trial Court was upheld.
2. Nishat Model Middle School, Nishat Abad, Faisalabad was established by the respondent- Company. In 1972 Martial Law Regulation No,118 was promulgated and amongst other this school was also nationalized. The school was taken over under the provision of M.L.R. 118 by the Government of Punjab. On a dispute and controversy having arisen between the petitioner and respondent, a suit was filed by the Government of Punjab through Collector, Faisalabad. Through the suit a declaratory decree was sought to the effect that the school exists on a total area 13 Kanals and 18 Marlas bearing Square No,16, Killas Nos.20, 21 and 22 situated in Chak No,202/RB, Faisalabad and after its nationalization it vested with he Government of Punjab. As a consequential relief a decree for injunction was also prayed for.
3. The respondent contested the suit and contended that the actual area of the school premises was 5 Kanals and 14 Marlas and rest of the area which the Government had claimed through the suit was not part of the school premises. In the written statement filed by the respondent a counter-decree for declaration was also prayed for by the respondent on the basis of set- off/counterclaim and it was prayed that a declaratory decree in respect of remaining area to be awarded in favour of the respondent and that if there is any entry in the Revenue Record the same contrary to the claim of the respondent, may be declared as void and illegal and ineffective upon his right. From the pleadings of the parties as many as eight issues were settled. Both the parties led their oral as well as documentary evidence in support of their stand. The trial Court after, completing hearing of the parties, decreed the suit of the respondent to the extent of area under building appurtenants thereto, excess and approach to school and the suit of the plaintiff- petitioner was dismissed to the extent of the area reserved for quarters shown Exh.D.7.
4. The petitioner filed an appeal from the judgment and decree of the trial Court. The Appellate Court dismissed the appeal of the petitioner and awarded a decree in favour of the respondent on the basis of his counterclaim and the entries recorded in Jamabandies for the year 1984-85 were set aside as being illegal, void, unauthorized, against the facts and also ineffective as against the right of defendant/respondent.
5.
' Also the area of the school was held to be 5 Kanals and 14 Marlas.
6. Aggrieved from the judgment and decree of the Appellate Court as well as the trial Court the Government of Punjab has filed the present revision petition. The learned Assistant Advocate- General appearing on behalf of the petitioner argued that the area of the school was 13 Kanals and 18 Marlas and two Courts below have misread and misappreciated the evidence on record. It was further maintained that Exh.P.1 which was a copy of Register Haqdaran for the year 1984-85 clearly proved the area of the school but the Appellate Court under the garb of claim of set-off by the respondent struck down the entries of the Revenue Record. On the other hand the learned counsel appearing for the respondent-Company supported the judgment of the Appellate Court.
6. I have considered the arguments of learned counsel for the parties, examined the record and observed that both the Courts below have misdirected themselves in adjudication of the present case. The trial Court proceeded to decide the case on the basis of Exh.D.7 (site plan) and merely on the basis of that document proceeded to hold that open area which the Government claimed as a playground of the school was in fact an area earmarked for the construction of the quarters for the employees of the mills. In a similar manner the Appellate Court proceeded to modify the decree of the trial Court to the extent of area of the school and awarded a decree in favour of the respondent on the basis of a set-off/counterclaim. Although I have observed some serious misreading of the evidence but I am accepting the revision petition on another legal ground and remand the case to the trial Court, therefore, I feel it appropriate not to comment and discuss the misreading of the evidence by the two Courts below as it might cause prejudice to the parties.
7. The provisions for the claim of set-off by the defendant are contained in Order VIII, rule 6, C.P.C.
The provisions for setting up of a counterclaim are not available anywhere in the C.P.C. The provisions of Order VIII, rule 6, C.P.C. Clearly defines the nature of set-off and it is provided as a weapon of defence so as to balance the claim of the plaintiff and that too in a money suit.
Although the doctrine of equitable set-off permits the defendant on equitable consideration to raise a plea of set-off even in respect of unascertained some of money but the basic principle remains that it has to be a claim of money to balance the claim of the plaintiff. Claim of counter- declaratory decree under the garb of a counterclaim is not covered by a doctrine of equitable set- off. I, therefore, hold that a claim of set-off as contemplated under Order VIII, rule 6, C.P.C. And under the doctrine of equitable set-off is available to the defendant but claim of counter- declaratory decree by the defendant-respondent was not tenable in law. For reference case titled Syed Niamat Ali and others v. Dewan Jay Ramdas and others reported as PLD 1983 SC 5 is relevant.
The claim of set-off is allowed to be put up by the defendant in money suits. The Appellate Court did not consider the distinction between set-off and a counterclaim. Admittedly the claim of a counter-decree for declaration as prayed for by the respondent did not fall within the ambit of set- off, therefore, it could only be a counterclaim. Therefore, the legal question which requires consideration was whether a counter-decree as prayed for could be awarded in favour of the respondent. Assuming that a counter-decree as claimed by the defendant could be awarded then the plaintiffs-petitioners were required to be put to notice and a written statement in the form of replication by the plaintiffs/petitioners to the claim of defendant was required to be obtained by the trial Court. One of the grievances of the petitioner is that the Appellate Court awarded a counter-decree in favour of the respondent without having sanction of law behind it.
8. Considering the arguments of the petitioners, I hold that the trial Court was required to call for a replication by the petitioners if the counterclaim for the decree by the respondent was to be taken as an independent set off. Failure to call for a replication and failure to provide a proper opportunity on this score has caused prejudiced to the petitioners and it is a material irregularity. I, therefore, allow this revision petition, set aside the judgment and decree, dated 23-9-1990 passed by the First Appellate Court as well as the judgment/decree, dated 2-5-1989 of the trial Court. The case is remanded back to the trial Court. The plaintiffs-petitioners would be provided an opportunity by the trial Court to file a replication as a written statement to the counterclaim of the defendant-respondent.. Both the parties would be provided an opportunity to produce an additional evidence and the suit would be decided afresh by the trial Court within a period of four months. Both the parties are directed to appear before the Senior Civil Judge, Faisalabad on 30-11- 2001.