A. Vadivelu vs A. Munuswamy

N.S. Ramaswami, J.—The question in this S.R. No. is as to correct forum for the appeal filed by the Defendant in the suit. I have heard the

arguments of the learned Counsel for the Appellant and those of Mr. G.R. Lakshmanan, appointed as an amicus curiae and I am thankful to Mr.

Lakshmanan for bringing to my notice the several decisions which have a bearing on the question to be decided.

The suit arose out of a dispute between the parties in the implementation of an agreement for sale. The Plaintiff was the intending purchaser and

the Defendant, the seller. The Plaintiff filed the suit claiming a sum of Rs. 9,000 as damages on the averment that the Defendant had committed

breach of contract. The Defendant contended in his written statement that the breach was committed only by the Plaintiff and not by him and that

therefore the Plaintiff should be non-suited. Further he made a counter-claim of a sum of Rs. 4,000 odd made up of Rs. 1,500 as damages and Rs.

2,500 odd as unpaid purchase money. The Court below held that it was the Defendant who committed breach of contract. It further held that the

Plaintiff was entitled to damages, but restricted the quantum to the sum of Rs. 6,000. On the above finding, the Defendant''s claim for damages of

Rs. 1,500 by way of counter-claim naturally stood negatived. As far as the remaining part of the counter-claim, namely, regarding the unpaid

purchase money, the Court below said that the Defendant was entitled to only a sum of Rs. 700 odd from the Plaintiff. Now the Defendant has

filed this appeal in this Court whose value is given as Rs. 8,600.

The Office returned the appeal memo stating that the value of the suit being only Rs. 9,000, u/s 15 of the City Civil Court Act, the appeal lay to

the Principal Judge, City Civil Court and not to this Court. The learned Counsel for the Appellant did not agree and therefore the matter has been

placed before Court.

The contention of the learned Counsel for the Appellant is that as per Section 15 of the City Civil Court Act, the value of the subject-matter of

the suit determines the forum and in the present case the value of the subject-matter of the suit must be taken to be not only the sum of Rs. 9,000

claimed by the Plaintiff but also the sum of Rs. 4,000. odd claimed by the Defendant by way of counter-claim. Thus according to him the value of

the subject-matter of the suit is over Rs. 13,000. If the contention of the learned Counsel in this regard is right, then the appeal should lie to this

Court, for the relevant section in the City Civil Court Act says that where the value of the subject-matter of the suit exceeds Rs. 10,000 the appeal

shall be to this Court.

After hearing the learned Counsel and Mr. Lakshmanan (amicus curiae), I am satisfied that the value of the subject-matter contemplated in

Section 15 of the City Civil Court Act cannot possibly take in the value of the counter-claim made in the written statement. Only the value given by

the Plaintiff in respect of his claim in the plaint is the value of the subject-matter of the suit. The counter-claim is really an independent claim, though

on equitable principles the Defendant is not driven to a separate suit but allowed to make his claim in the suit filed by the Plaintiff. That the counter-

claim is in the nature of an independent suit has been recognised in several decisions. In Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal

Kabarwala and Others, what happened is this. In a suit by the Plaintiff, the Defendant made a counter-claim. The trial Court converted the

counterclaim into a separate cross suit. The Supreme Court held that the procedure adopted by the trial Court was proper. This is on the basis that

the counter-claim is an independent action.

In Sri Vasudevandra Saraswathiswami Vs. Sridhara Sivarama Moorthy, the question arose in a different form. The Plaintiff filed the suit on the

original side of this Court.--The Defendant made a counter-claim. But the cause of action for the counter-claim had not arisen within the

jurisdiction of this ""Court. This Court held that the counter-claim cannot be entertained in this Court. This decision has been followed by the

Andhra Pradesh High Court in S. Imam Peer Khadri Nooredaria Vs. S. Khadija Bi and Others, .

In Jamnadass v. Behari Lal AIR 1941 Nag. 258 the counter-claim made by the Defendant was of small cause nature. It was held that the

Defendant had to make his claim only in a small cause suit separately and that cannot be entertained by the Court which was trying the Plaintiff''s

suit.

In Moideen Baba v. Chettyar Firm AIR 1934 Rang. 160 the Plaintiff in-whose suit the Defendant had made a counter-claim withdrew his suit;

but it was held that in spite of such withdrawal of the suit by the Plaintiff, the counter-claim was sustainable.

All these decisions proceed on the footing that the counter, claim made by a Defendant, though in the written statements, is in the nature of an

independent suit. As I said, only on equitable grounds the Defendant is allowed to put forward this claim, though it is really an independent one, in

the suit filed by the Plaintiff.

Even if the appeal in this case related to the entire plaint claim and that in the counter-claim, the value of the appeal exceeding Rs. 10,000 the

forum would be only the Court of Principal Judge, City Civil Court and not this Court, for the criterion is the value of the subject-matter of the suit

and not that of the appeal. Vide Putta Kannayya Chetti v. Rudrabhatla Venkaia Narasayya 32 M.L.J. 221.

The learned Counsel invited my attention to Section 53 of the Court-fees Act; but that has no relevance to the point to be decided. All that that

section says is that is a suit as to whose value for the purpose of determining the jurisdiction of Courts, specific provision is not otherwise made,

value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same. From this provision it cannot be

contended that the Plaintiff has paid Court-fee on the sum of Rs. 9,000 claimed by him and the Defendant has paid Court-fee on the sum of Rs.

4,000 claimed by him and that, therefore, the value of the subject-matter of the suit itself is more than Rs. 10,000. From what I said earlier, it is

quite obvious that the counter-claim is an independent action and the value of the same cannot be mixed up with the value of the subject-matter of

the suit.

The learned Counsel also referred to Order XX, Rule 19 of the Code of Civil Procedure. There Sub-rule (2) says that any decree passed in a

suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had

been claimed. This is pointed out to show that there is no similar provision in respect of counterclaims and that, therefore, the value of the subject-

matter of the suit for the purposes of the value of the appeal must be taken to be not only value of the claim made by the Plaintiff but also that of

the claim made in the counter-claim. But the learned Counsel forgets that there is a specific provision with regard to set-off under Order VIII,

Code of Civil Procedure. As the Code makes specific provision for making a set-off in the written statement, there is also specific provision with

regard to the valuation under Order XX, Rule 19, Code of Civil Procedure. Admittedly, the Code does not make any provision with regard to

making of a counterclaim in written statement. Therefore, the absence of a provision regarding the counter-claims, similar to the one contained in

Order XX, Rule 19, CPC which relates to set-off is no ground to hold that the value of the counter-claim should also be clubbed with that of the

plaint claim in arriving at the value of the subject-matter of the suit.

The learned Counsel also referred to the observation of Ramamurthi J., in Subramania Chettiar v. Shanmugham (1966) I M.L.J. 200 wherein

the learned Judge draws the distinction between set-off and counterclaim. It is pointed out that set-off is a defence and counterclaim is not really a

defence to the Plaintiff''s claim but is a weapon of offence. This really strengthens the view that I am taking, namely that the counter-claim is really

an independent claim and the value of the counter-claim cannot be clubbed with that of the plaint claim in arriving the value of the subject-matter of

the suit. I hold that the appeal lies to the Principal Judge, City Civil Court, Madras and not to this Court. This appeal memo and the connected

papers are to be returned for presentation to the proper Court on 15th April 1975 forenoon.