1. This is an appeal from an order under Section 6-A, Court fees Act demanding court-fees from the defendant in the following circumstances.
2. The plaintiff filed a suit for pre-emption. The defendants in their written statement pleaded that they had spent a sum of Rs. 6,500 in making improvements to the property and the plaintiff's suit for pre-emption should not be decreed without making the plaintiff liable for that amount. The Chief Inspector of Stamps reported that the defendants had made a counterclaim and should be made to pay ad valorem court fees on the sum of Rs. 6,500 which, the defendants had alleged, had been spent by them towards the improvements to the property. The learned Civil Judge accepted the report of the Chief Inspector of Stamps and held that the defendants were liable to pay ad valorem court-fees on the sum of Rs. 6,500 on the ground that the defendants had made a counter claim. An appeal against this order has been Bled by the defendant) under Section 6-A, Court-fees Act.
3. Reliance is placed on behalf of the defendant on a decision of a learned Single Judge of this Court reported in Haidri Begam v. Gulzar Bano, 12 A. L. J. 481: (36 ALL. 322). In that case the plaintiff had claimed possession of certain properties and the defendant had pleaded that she was in possession of the same in lieu of her dower debt and the plaintiff could not, therefore, get possession over the property without paying Rs. 80,000 to the defendant. The question then arose whether the defendant was liable to pay court-fees on the sum of Rs. 80,000 and it was held by the learned Judge, on a reference by the Taxing Officer, that the defendant was not liable to pay court-fees on Rs. 80,000.
4. Reliance is placed on behalf of the Chief Inspector of Stamps on an unreported judgment of a learned Single Judge of this Court (Civil Revision No. 63 of 1944, Chief Inspector of Stamps v. Tirkka Singh) decided on 29th of July 1946 by Hon'ble Waliullah J. That was a suit by reversioners for possession over some property after the death of the widow. The widow had, in her life-time, transferred the property by gift to one Tirkha Singh who claimed that, while in possession of the property, he had in good faith spent considerable amount in protecting the title of Mt. Bhoori and the other collaterals. He alleged that the plaintiffs were not entitled to get possession of that property unless they paid that amount. The learned Judge was of the opinion that the claim put forward in the written statement was in the nature of a counter-claim. It is not necessary for us to discuss that judgment further as the facts of this case are clearly different.
5. It is admitted by the learned Junior Standing Counsel that the defendant could not have brought a suit for recovery of this sum of Rs. 6,500 and that if the plaintiff today decides to withdraw the case, the defendant's claim for Rs. 6,500 must fail. He has, however, urged that inasmuch as the money claimed arises out of a claim for improvement and not for the sale consideration, the claim for money spent on improvements must be deemed to be a counter, claim. The essence of a counter-claim is that the defendant should have a cause of action against the plaintiff and the counter-claim is in the nature of a cross action; and not merely a defence to the plaintiff's claim In Bow, McLachilan and Co. Ltd. v. The Ship 'OAMOSUN' and the Union Steamship Co. of British Columbia, Ltd., 1909 A. c. 597: (79 L. J. P.C. 17)and Williams Brothers v. Agius, Ltd, (1914) A. C. 610; (83 L. J. K. B. 715) it was held that a counterclaim must be of such nature that the Court would have jurisdiction to entertain it as a separate action. Again in Amon v. Bobbett, (1889) 22 Q. B. D. 543: (58 L. J. Q. B. 219), it Was held by Bowen L. J. that:
'A counter-claim is, therefore, to be treated, for all purposes foe which justice requires it to be so treated, as an independent action.'
The learned Junior Standing Counsel has to admit that it cannot be urged that the defendant has a cause of action against the plaintiff, or that a separate action could be maintained on the basis thereof. This claim could only be put forward as a defence to the suit and in that view of the matter it can hardly be called a counter-claim.
6. We think that the decision of the lower Court is wrong and, therefore, we set it aside and declare that no court-fees are payable on the written statement. The appellant is entitled to his costs from the Chief Inspector of Stamps.