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Apparswami Chettiar Vs. Sri Parvathavardhani Sametha Ramanatheeswara - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1404 of 1959
Judge
Reported inAIR1961Mad527
ActsCourt-fees Act, 1870 - Schedule - Article 1; Madras Court Fees and Suits Valuation Act, 1955 - Sections 8
AppellantApparswami Chettiar
RespondentSri Parvathavardhani Sametha Ramanatheeswara
Appellant AdvocateG. Ramanujam, Adv. for ;Govt. Pleader;P.V. Subramanyam, Adv.
Respondent AdvocateK. Raman, Adv.
Cases ReferredAlamelu Ammal v. Thayarammal
Excerpt:
- .....as a condition of the decree for possession is neither a claim for set-off nor one by way of counter claim. mr. ramanujam, who appeared for the government pleader, sought to contend that the claim would come within the term 'counter claim' in section 8 of the court-fees act. reliance was placed on the decision in alamelu ammal v. thayarammal, : air1961mad355 . that was a case where a mortgagor filed a suit for redemption. the defendant to the suit, namely, the mortgagee, contended that, in addition to the mortgage money, the plaintiff should pay the costs of improvements effected by him. jagadisan, j. held that the claim for improvements was a counter-claim and therefore court-fee should be paid on such a claim. i am however unable to see how the principle of that decision can.....
Judgment:
ORDER

Ramachandra Iyer, J.

1. This is a revision petition at the instance of the defendant in O. S. No. 297 of 1958 against an order directing payment of court-fee in regard to a claim for improvements made in the following circumstances. The respondent filed a suit for a declaration of its title to the suit property, for possession & recovery of mesne profits. The petitioner, in addition to contesting the title of the respondent, pleaded that he had effected improvements to the property to an extent of Rs. 1500/- and before a decree for possession could be passed, he should be compensated to the extent of that amount. The lower court has held that the petitioner should pay court-fee on than amount. It is plain that the claim of the defendant to be paid the cost of the improvement as a condition of the decree for possession is neither a claim for set-off nor one by way of counter claim. Mr. Ramanujam, who appeared for the Government Pleader, sought to contend that the claim would come within the term 'counter claim' in Section 8 of the Court-fees Act. Reliance was placed on the decision in Alamelu Ammal v. Thayarammal, : AIR1961Mad355 . That was a case where a mortgagor filed a Suit for redemption. The defendant to the suit, namely, the mortgagee, contended that, in addition to the mortgage money, the plaintiff should pay the costs of improvements effected by him. Jagadisan, J. held that the claim for improvements was a counter-claim and therefore court-fee should be paid on such a claim. I am however unable to see how the principle of that decision can apply to the present case. In my opinion, the claim of the petitioner cannot be said to be either one by way of set-off or by way of counter-claim. For example, it cannot be said that even if the cost 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 he entitled to delivery of possession on payment of the amount adjudged to the defendant. The defendant cannot execute that decree and obtain payment of the amount adjudged as and for improvements. If the plaintilf does not choose to execute the decree the defendant would have no right at all to recover what he spent for improvement by executing the decree. It is therefore clear that Section 8 will not apply to the claim for improvements made by the petitioner. The order of the lower court is therefore set aside. There will he no order as to costs.


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