McNair, J.:— This is an appeal from a judgment and decree passed by this Court in its Ordinary Original Civil Jurisdiction by Mr. Justice Das.

2. The suit was for arrears of rent from September, 1941 to June, 1942, the monthly rent was Rs. 370 and the sum claimed was Rs. 3,700. By mistake it has been stated in the plaint to be Rs. 4,700 but nothing turns on this error. The Defendant paid into Court Rs. 3,700 admitting liability for a sum of Rs. 3,650 and denying liability for the remaining Rs. 50. The suit was placed immediately below the undefended causes and was decreed by the learned trial Judge who refused to accede to the plea of the learned Counsel appearing for the Defendant that the Defendant should be entitled to an abatement of rent on account of the Plaintiff's encroachment on a portion of the demised premises. In his written statement the Defendant admitted that he had not paid rent for, the period during which rent was claimed. In paragraph 4 facts are set out on which the Defendant sought to rely, namely that the landlord had partitioned off a portion of the demised premises and that the tenant had protested against this encroachment and had claimed either removal of the partition or an abatement of rent. The Defendant assessed a fair abatement as being at the rate of Rs. 5 a month. Correspondence ensued and it appeared at one time that an amicable arrangement might be come to whereby the Plaintiff would retain the portion on which he is said to have encroached and would build a bath room for the tenant on another portion of the premises. Unfortunately no compromise of this nature was eventually arrived at, and a fresh controversy arose regarding protective measures under the scheme of Air Raid Precautions.

3. The learned trial Judge has held that the Defendant, who paid into Court the full amount of the claim with a denial of liability as to a portion thereof, is not entitled to set up or have agitated in this suit the question as to the abatement of rent. It is pointed out that although there are averments in the written statement regarding encroachment and the claim to abatement of rent, in fact these averments do not amount to a plea of a set-off, and it is further pointed out that the written statement cannot have intended to raise a set off inasmuch as it was never stamped as such.

4. The effect of payment into Court with a denial of liability has been discussed by Lindley, M.R, in the case of Coote v. Ford(1). At p. 104 of the Report in referring to the rule the Master of the Rolls says,

“The rule says in effect, ‘If you, the Plaintiff, like to take the money out in satisfaction, all proceedings in the action, so far as it relates to the matter in respect of which the money has been paid in, are at an end—you are not to flight it out: if you like to take the money in satisfaction of all damages, then the action is stopped so far as regards these damages.’ One sees the sense of that from the Plaintiff's point of view, and also from the Defendant's point of view. The Defendant says, ‘I am not going to admit your right but it is not worth fighting so far as the damages are concerned, and I shall pay one shilling into court, and get rid of it so far.’”

5. The effect is the same in the present case. The Defendant pays into Court the amount of the claim although he denies that a portion of that amount is due. The result is, so far as the claim is concerned, that the Defendant says in effect, “I am not going to fight this question of rent although I do not admit that you are entitled to the full amount.” It is perhaps unfortunate that under the Rules of this Court and the Code of Civil Procedure no counter claim is permissible.

6. In the case of Coote v. Ford already referred to the learned Judge has pointed out that although the claim for damages was at an end when payment was made into Court denying liability, yet that claim for an injunction could not be got rid of by a payment into Court.

“If the action”, says the Master off the Rolls, “claims an injunction as well as damages, the Defendant cannot, by payment into court, get rid of it so far as the induction is concerned. You can only treat a payment into court as in respect of that in which it can be properly paid in, the claim for damages.”

7. It appears to me that in this case also the payment into Court can only be taken as a payment in respect of the claim for rent. The question whether there has been trespass or whether there should be an abatement by reason of any action of the landlord is not a matter into which the Court can go in this suit, but it does not mean that the Defendant is still without a remedy on that point in this Court.

8. The other question which has been raised on behalf of the Appellant is the decision of the learned Judge that the Defendant should pay the costs up to the time of the deposit of the money in Court. Mr. B.C Ghose has referred us to Ch. 24, Rule 47 (b) of the Original Side Rules of this Court which, in a case of this nature where there has been a payment into Court and the Plaintiff has accepted the amount paid in in full satisfaction of his claim, provides,

“in directing by whom the costs of each party are to be paid in regard to such claim, the court shall consider which of the parties is most to blame for the litigation with respect to the claim or the particular cause or causes of action”.

9. The learned trial Judge has referred to the facts and there is nothing so far as we can see to justify any suggestion that he has not taken into consideration which of the parties is most to blame for the litigation. He has pointed out that if the Defendant intended to fight the case then the procedure which he had adopted was not the correct procedure.

10. In my view the judgment and the decree appealed from are right and this appeal is dismissed with costs.

Gentle, J.:— The Defendant has been a tenant of Nos. 37, 38 and 39, Ezra Street, Calcutta, for about 40 years, the rental of the portion he occupied is Rs. 370 a month. This rent was not paid between September, 1941 and June, 1942. The landlord, the Plaintiffs, instituted a suit in respect of arrears of rent and the claim was, simpliciter, for Rs. 3,700, (by a clerical error stated to be Rs. 4,700), in respect of ten month's rent at the above rate.

11. In the written statement the Defendant alleges that non-payment of the rent is justified by reason of an alleged encroachment by the landlords on a portion of the letting, the value of the portion upon which the encroachment is alleged being Rs. 5 per month. The written statement continues that the Defendant through his solicitor offered to accept arbitration by the Plaintiff's solicitor, and in March, 1942, tendered the amount of the rent due up to that date less the sum of Rs. 5 per month in satisfaction of the sum then payable which tender was refused. The written statement continues that the Defendant had paid into Court the total sum claimed, Rs. 3,700, admitting liability to the extent of Rs. 3,650 and denying liability in respect of the balance of Rs. 50.

12. The learned Judge from whom the present appeal is preferred by the Defendant, Mr. Justice Das, directed a decree in respect of the full amount and also gave further directions in regard to costs.

13. On behalf of the Appellant it is contended that the payment into Court of Rs. 50 with a denial of liability has in effect been treated as a payment with admission of liability, since the learned Judge refused to allow the contention raised in the written statement, that the landlords had encroached upon the tenant's holding, to be agitated and it was further contended that such matters and the claim, as it was called, in respect of Rs. 5 monthly is a set off and as such the Defendant was entitled to have a decision of the Court upon it.

14. Firstly, in my view the written statement does not raise a set off at all; incidentally, I can find no reference to a set off or that the learned Judge ignored the presence of the set off in the grounds of the appeal. But even so, assuming it is a set off, in my view that is a defence and nothing more.

15. When a Plaintiff prefers a claim and in respect of it the Defendant pays into Court a smaller sum than the Plaintiff seeks to recover and that payment is with an admission of liability, the Plaintiff can withdraw the money paid into Court and proceed with the suit for the balance; if, on the other hand, such payment into Court is made with a denial of liability, the Plaintiff must do one of two things; either he can proceed with the suit in the hope of obtaining something more, or he can take out of Court the money paid in with a denial of liability. If he takes the latter course then he must be deemed to accept the sum in full discharge of his claim. In that event the suit cannot be proceeded with and apart from any special consideration the Plaintiff is entitled to his costs up to the date of payment into Court. The fact that the Defendant pays money into Court with a denial of liability does not entitle him in the event of the Plaintiff deciding to take it in full satisfaction to enforce a trial of any defence which he may raise in his written statement. The Plaintiff having accepted the sum in full satisfaction, all questions of any defence to the claim have disappeared.

16. In support of the contention, which I have mentioned above, the learned Counsel on behalf of the Defendant Appellant referred to Coote v. Ford. In that case a landowner Claimed (1) damages for trespass and (2) an injunction. The Defendant denied the trespass and nevertheless paid a sum into Court denying liability and also he filed a counter-claim asserting a right to pass over the land of the Plaintiff. The Plaintiff having taken out of Court the money paid in by the Defendant in full satisfaction of the claim for trespass sought to have struck out the Defendant's counter-claim on the ground that payment into Court with a denial of liability was in effect, an admission of liability, and, therefore, went to the root of and against the grounds upon which the counter-claim was preferred. This contention was rejected and also the view was expressed that accepting the money paid into Court, in respect of the trespass, would not prevent the Plaintiff from pursuing his claim for an injunction. In my view, this case is not in point in the present appeal. There was nothing before Mr. Justice Das save the claim simpliciter by the Plaintiff for rent due by the tenant to the landlord. It is not out of place to observe that the question of the encroachment which the Defendant alleges is not one which has been decided in the present suit or appeal, and if, in future, proceedings are brought by the Defendant in respect of it a plea of res judicata would not be open to the present Plaintiff. Any future proceedings must be within the decision of the Defendant himself and his advisers. I do wish to subscribe to, and to support, the observations of my Lord that it is unfortunate that in this Court there is no machinery by which a Defendant can prosecute a counter-claim when he is sued by a Plaintiff in a suit in this Court. In my view the decision of Mr. Justice Das that the Defendant could no longer pursue any defence raised in the written statement was correct.

17. I wish to make one observation regarding the costs. Learned Counsel for the Appellant has pointed out the wordings of Rule 47 (b), Ch. 24 of the Rules of this Court with respect to payment into Court and that after a payment has been made the question of costs then arises and the Court shall consider which of the parties is most to blame for the litigation with respect to the claim or the particular cause or causes of action.

18. I wish to add one further observation to what my Lord has already said regarding the direction of Mr. Justice Das in the present case. The claim is for Rs. 3,700 of which Es. 3,650 was admitted by the Defendant, and to obtain that sum the Plaintiff was forced to file the suit, which he did, against the Defendant. That being so, in my view it was the Appellant who was more to blame in respect of the litigation.

19. I agree that this appeal should be dismissed with costs.

Solicitors: S.K Ganguli & Co. for the Appellants R.K Dey for the Respondent.

C.C