(1) This revision petition arises out of an order passed by the learned Subordinate Judge, Salem, directing the 5th defendant in the suit. O. S. 64 of 1963 to pay a sum of Rs. 750 as court-fee. The plaintiff filed a suit for partition and separate possession of the share in the suit properties. Defendants 1 to 4 who are members of the family are sailing together. The first defendant had executed a sale deed in favour on the 5th defendant which is attacked on the ground that it is not an out and our sale, but was executed merely to serve as security for a loan transaction. The fifth defendant, alienee, besides contending that the sale deed executed in his favour by the first defendant is a genuine transaction, claimed a sum of Rs. 10,000 by way of moneys spent by him bona fide in the improvements of the suit property, and that if the sale deed should be held to be binding upon the plaintiff and defendants 2 to 4 the amount spent by the fifth defendant for improvements should be held to be binding upon the members of the family. The question for decision is whether the claim of the fifth defendant is liable to payment of court-fee as a written statement pleading a set off or a counter claim under S. 8 of the Madras Court-fees Act, 1955, hereinafter referred to as the Act. The learned Subordinate Judge while holding that the fifth defendant is liable to pay court-fee under S. 8 of the Act, has relied upon and followed a recent unreported decision of Venkaradri J. in C. R. P. 1216 of 1960 (Mad). Hence this revision petition.
(2) It must be mentioned at the outset that the only provision having a bearing on the above question is S. 8 of the Act and if the pleas by the defendant do not amount to a plea of set off or a counter-claim there is no other provision by which he could be called upon to pay court-fee. In other words, the State should bring the case within the four corners of the section. Vide Jogarao v. Venkatarao, AIR 1949 Mad 471. It should also be borne in mind that a right to make a counter claim is a statutory one and a counter claim is not admissible in a case which is admittedly not within Or. VIII, rule 6 C.P.C. Vide Laxmidas v. Nanabhai : 2SCR567 for the legal indicates of the nature of a counter claim. Unless the rules of procedure of the particular court of courts provide for counter claims, the defendant has no unqualified right to set up a plea which is essentially in the nature of a counter claim.
(3) The plea of the 5th defendant is obviously not a plea of set off. It is only money claim that may give rise to a plea of set off. The right to set off is the right to plead a debt or a money claim due from the plaintiff in deduction or extinction of the plaintiff's claim. It was unknown to common law and the right of a set off was later recognised by statutes and apart from the rights at law conferred by statute the defendant is also permitted to raise a plea of equitable set off but whether it is a legal or equitable set off such a plea could exist only where both the plaintiff's and the defendant's claims are for recovery of money. Vide 34 Halsbury's Laws of England, Simonds Edn., page 396 paras 673 and 674. The essential condition, namely, a suit being one for recovery of money, is not satisfied in the instant case, and therefore, obviously no plea of set off can arise.
(4) The question, therefore, arises whether the written statement could be construed as giving rise to a plea of counter claim. Like set-off, a counter claim is available to a defendant only when the procedure of the courts in which the plaintiff brings his action allow a counter claim to be set up. In certain inportant aspects a plea of counter claim is different and distinguishable from a set off in its application and in its effect. While set off is limited to money claims there is so such limitation in the case of counter claims. Any claim in respect of which the defendant could bring an independent separate action against the plaintiff can form the subject matter of a plea of counter claim, provided such a plea can be conveniently tried with the plaintiff's claim. Counter claims can be made in a suit for injunction, specific performance or for a declaration. The main basic difference between a plea of set off and that of a counter claim is that in the former case it is a ground of defence, a shield and not a sword which when established affords an effective answer to the plaintiff's claim either in whole or in part whereas a counter claim is not really a defence to the plaintiff's claim but is a weapon of defence, enabling the defendant to enforce his right or claim against the plaintiff as effectively as an independent action of his own. There the claim of the plaintiff is for recovery of money the plea of the defendant, to the extent to which it operates as an extinguishment of the plaintiff's claim, is in the nature of a set off, while in respect of the balance claimed by the defendant it partakes of the character of a counter claim. In this connection reference may be made to the following statement of the law in 34 Halsbury page 411 para 720:--
'Subject matter of counter claim: A counter claim can in general be brought in respect of any claim that could be the subject of an independent action. It is not confined to money claims, or to causes of action of the same nature as the original action; and except where a person other than the plaintiff is also made a defendant to it, it need not relate to or be connected with the original subject of the cause or matter. A claim founded or tort may be opposed to one founded on contract and in an action in ream the defendant may set up a counter claim in personam. The defendant by his counter claim may ask for any form of relief, for example, a declaration a vesting order or relief against forfeiture, an injunction, a receiver, specific performance, a revocation of a patent, an account, payment of money claim, or damages'.
(5) It is necessary to note that a plea can form the subject matter of a counter claim only if in respect of that claim the defendant could bring an independent action against the plaintiff. In other words, if the defendant could not have filed an action for the enforcement of the particular right against the plaintiff in an action of his own the accident of the plaintiff filing some suit against the defendant cannot enable the latter to agitate his right in the form of a counter claim. The sine qua non of the plea of a counter claim is that the defendant should have an independent right to agitate the same in an action of his own.
(6) If the above main incidents or features of a counter claim are borne in mind it will be clear beyond doubt that a plea for the value of improvements by the alliance in a suit for partition is not a counter claim.
(7) Or. VIII rule 6 C.P.C. corresponds to Or. XIX, rule 3 of the English Rules of the Supreme Court and in the While Book the Annual Practice Vol. I, the law is stated in these terms at page 452.
'To what extent a counter claim is an independent action: A counter claim is substantially a cross action; not merely a defence to the plaintiff's claim. It must be of such a nature that the court would have jurisdiction to entertain it as a separate action (Bow, Maclachan and Co. v. Ship Camosun, 1909 AC 597; Williams Brothers v. Agius Ltd., 1914 AC 510) 'A counter claims is to treated for all purposes for which justice requires it to be so treated, as an independent action' (per Bowen L. J. in Amon v. Bobbett, (1889) 22 QBD 548).'
I may refer to the Bench decision of the Allahabad High Court in Abdul Majid v. Abdul Rashid : AIR1950All201 . In the case in a suit for pre-emption the defendants pleaded that they had spent certain amounts in making improvements to the property sought to be pre-empted and that the plaintiff's claim should not be decreed without making the plaintiffs liable for the amount so spent by the defendants. It was held that the plea raised by the defendants did constitute a counter claim and therefore, no court-fees were payable under the Court-fees Act. Central Act of 1870, Sch, I, Art 1. It was observed that the defendants could not have brought a separate suit against the plaintiff claiming the value of the improvements and the claim, therefore, could only be put forward as a defence to the suit and can hardly be called a counter claim. The Bench followed the ratio of an earlier decision in Haidri Begum v. Guizar Bano, ILR 36 All 322: AIR 1914 All 273. That case dealt with a suit for possession of a Muslim lady, who, while resisting the suit for possession contended that she could not be dispossessed without payment to her of a sum of Rs. 80000, towards the amount of dower due. The trial Court passed an unconditional decree for possession holding that the claim for dower could not be made a condition precedent to the decree for possession. The defendant appealed and the question arose whether the defendant should pay court-fee in appeal on the sum of Rs. 80000 or the value of the property. It was held that the subject matter in dispute in the appeal is the value of the property and that the court fee paid thereon was sufficient. The matter was put thus by Tudball J., at page 325 (of ILR All): (at p. 275 of AIR):
'It is perfectly true that it is open to this court to grant a decree to the plaintiff conditional on payment of whatever may be found due to the defendant as her dower debt. But even in that case it will not be a decree which the defendant appellant would be able to put into execution, so as to enable her to recover her debt. It would be merely an attachment of a condition to the decree for possession. Of course it may also be that the court might dismiss the claim of the plaintiff in to or it might uphold the decree of the court below.'
The same view has been taken by a Bench of this court in Reference under Court-fees Act, ILR (1900) Mad 84, in which it was held that in a suit for ejectment the tenant's claim for improvements is not really the subject matter in dispute, but merely incidental to the decree for possession.
(8) I may next refer to the Bench decision of the Patna High Court in Pramada Prasad v. Sagarmal : AIR1954Pat439 . In that case, the plaintiffs brought a suit for a declaration that a managing agency secured from them by the defendant was vitiated by misrepresentation and fraud. In addition to seeking the relief of rescission of the contract the plaintiffs also sought the recovery of a sum of Rs. 55000, comprising the payment by them of the security deposit and salami. The defendant while resisting the suit on the merits raised the plea that as a condition for the grant of the relief of the rescission of the contract the plaintiffs should be made to restore such benefits which (the value of 5398 tons of coal) they received under the contract in question. The learned Subordinate Judge directed the defendant to pay the court-fee under Sch. 1 Art. I on the value of 5396 tons of coal received by the plaintiffs from him. But on revision, the High Court held that the plea of the defendant did not constitute either a plea of set off or a counter claim within the meaning of Sch. 1 Art. I of the Central Court-fees Act. The learned Judges following the English cases held that in order that a plea can constitute a counter claim it must be of such a nature that the court would have jurisdiction to entertain it as a separate action. It is obvious that if the plaintiffs had not filed the suit seeking the relief of rescission of the contract, the defendant could not have brought an independent action of his own for recovery of his value of the coal delivered by him to the plaintiffs.
(9) I may now refer to the decision of Ramachandra Iyer J. (as he then was) in Apparswami v. P. S. Ramanatheswara : AIR1961Mad527 . In that case, the plaintiff brought a suit for a declaration of title and for possession and the defendant contesting the same, amongst other things, raised the plea that as he had effected improvements to the property to an extent of Rs. 1500 be should be compensated to that extent before a decree for possession is passed. The trial court held that the defendant should pay court-fee on that amount but this decision was reversed in revision. It was held that the claim of the defendant that there should only be a conditional decree is neither a claim for set off nor one by way of a counter claim. It is sufficient to refer to the following observations of the learned Judge at page 528:
'In my opinion, the claim of the petitioner cannot be said to be either one by way of setoff or by way of counter claim. For example, it cannot be said that even if the costs of improvements is allowed to the petitioner, he would be entitled to set it off against the decree for possession that may be passed in favour of the respondent. Nor can it be said that it is a counter claim for the simple reason that no decree could be passed in favour of the defendant who claims compensation for improvements. The only decree that will be passed in the suit if the plaintiff succeeds in his claim and the defendant also succeeds in his case as to improvements, will be a conditional one, viz., that the plaintiff will be entitled to delivery of possession on payment of the amount adjudged to defendant. The defendant can not execute that decree and obtain payment of the amount adjudged as and for improvements. If the plaintiff does not choose to execute the decree, the defendant would have no right at all to recover which he spent for improvements by executing the decree. It is therefore clear that Sec. 8 will not apply to the claim for improvements made by the petitioner.'
With great respect, I am unable to agree with the view that taken by Venkatadri J. in the unreported decision, C. R. P. 1216 of 1960 (Mad) on which reliance was placed by the learned Government Pleader. The attention of the learned Judge was not drawn to the cases referred to earlier. Further a perusal of the judgment shows that the matter was taken almost for granted and no serious argument appears to have been advanced by learned counsel appearing for the party touching this important aspect that a plea to constitute a counter claim must be such that it should have an independent existence and could form the subject matter of an independent action de hors the plaintiff's suit. The other decision relied upon by the learned Government Pleader, a decision of Jagadisan J. in Alamelu Ammal v. Thayarammal : AIR1961Mad355 dealt with a case of redemption which is governed by altogether different principles. The mortgagee's claim for moneys due to him either towards expenses incurred by him, improvements effected, or other necessary or binding outgoings could always be recovered by him in his suit for recovery of the mortgage amount, thus satisfying the requirement of the right of an independent action. To sum up, therefore, every defence will not constitute a counter claim. A person who has a right not enforceable by an action but in some other way cannot enforce that right by a counter claim. The Civil Procedure Code did not alter or intend to alter the rights of parties or wipe out the difference between ordinary pleas in defence and a counter claim.
(10) For these reasons, the revision is allowed, and the order of the learned Subordinate Judge is set aside. No costs.