Kappini Goundar vs K. Kuppuswamy

Gokulakrishnan, J.—Second Defendant is the Petitioner herein.

The Respondent herein filed Original Suit No. 113 of 1969. on the file of the Sub-Court, Coimbatore, for partition of the suit properties into

two equal shares and for delivery of possession of one such share to him and recovery of past mesne profits of Rs. 4,769 till date of plaint and

future mesne profits at Rs. 2,140 and Rs. 517 for the A and B schedule properties; and for costs. A preliminary decree for partition was passed as

early as 15th September 1973. The alternative portion of the preliminary decree is as follows:

(1) That the suit properties be divided into two equal shares and Defendants do deliver possession of one such share to the Plaintiff.

(2) And that question of mesne profits, costs, improvements and any amount, due to each party be reserved for the final decree proceedings.

The preliminary decree was passed on the joint endorsement made by the parties to the following effect:

without prejudice to the rights and claims a preliminary decree may be passed regarding partition of the suit properties and question of mesne

profits, costs improvements and any amount due to each party may be reserved for the final decree proceedings.

It is also admitted by both the parties herein that a final decree has been passed in respect of the immovable properties and possession has also

been handed over to the respective parties.

Interlocutory Application No. 32 of 1977 was filed by the second Defendant, who is the Petitioner herein, praying for issue of directions to the

Commissioners to record evidence for ascertainment of future mesne profits, and also to record evidence not only on the questions of future mesne

profits but also on the question of improvements and any other amount due to each party as reserved in Clause (2). The Respondent herein

opposed the application stating that the Petitioner could as well file on independent suit to recover his dues for improvements and that he could not

seek to issue fresh direction to the Commissioner to enquire into the improvements and costs of the alleged improvements and prayed for the

dismissal of the application. The learned Subordinate Judge, Coimbatore, in his order referring to the final decree proceedings in Interlocutory

Application No. 146 of 1974, observed that in the final decree there is a provision to the effect that if the Plaintiff files a petition for mesne profits

under Order XX Rule 12, CPC against Defendants 2 to 4, the Defendants could put forward is that petition the claim for improvements if any as

set-off against the claim of mesne profits claimed by the Plaintiff, that as per the final decree, in Interlocutory Application No. 146 of 1974

Defendants 2 to 4 were entitled to put forward a claim for improvements in the same application wherein the Plaintiff has claimed mesne profits,

and that the Commissioner was to be directed to ascertain the improvements said to have been effected on the properties by the second

Defendant. After so observing, the learned Subordinate Judge directed the second Defendant to submit a list of the improvements in respect of

which the claim has been made by him and also directed him to pay a remuneration of Rs. 75 to the Commissioner for ascertaining the same. He

observed that in respect of the improvements, the second Defendant was willing to pay the Court-fee on the determination of the value of the

improvements and directed him to pay the same. Finally, in the concluding portion of his order, the learned Subordinate Judge has ordered that the

second Defendant will submit a list of his claim for improvements before the Court with copy to the Plaintiff within two weeks from the date of the

order, that the second Defendant will also deposit the Commissioner fee of Rs. 75 in Court within two weeks from the date of the order, that the

Commissioner will hold the enquiry as directed earlier in the Commission warrant and that the second Defendant will also deposit the court-fee for

the improvements which he has valued at Rs. 12,500 within two weeks from the date of the order.

Aggrieved by the order directing him to pay court-fee on the tentative valuation of the improvements at Rs. 12,500 the second Defendant has

filed the present revision.

Mr. K. Sarvabhauman, the learned Counsel, appearing for the Petitioner, submitted that the Court-fee can be paid only after the Commissioner

ascertained the value of improvements effected on the properties and not on the tentative assessment made by the Petitioner.

Mr. K. Sarvabhauman also stated that the present claim has been made on the basic of Clause (2) of the preliminary decree and that there is no

question of any counter-claim or set-off arising in this matter to direct the Petitioner or to pay any court-fee. He further submitted that the Petitioner

is always willing, and in law bound, to pay the court-fee as seen as the value of the improvements is determined by the Commissioner and that the

court-fee will be paid-on the, value, so determined by the Commissioner.

Mr. K. Raghunathan, the learned Counsel appearing for the Respondent-Plaintiff, submitted that the final decree has provided that, if the Plaintiff

files a petition for mesne profits against Defendants 2 to 4, they can put forward in that petition the claim for improvements, if any as set-off against

the claim of mesne profits claimed by the Plaintiff and that therefore the present claim made by the Petitioner is in the nature of set-off and Court-

fee has to be paid on the valuation given by the Petitioner himself. The learned Counsel would rely on Section 8 of the Tamil Nadu Court-fees and

Suits Valuation Act, 1955, which states:

A written statement pleading a set-off or counter-claim shall be chargeable with fee in the same manner as a plaint and state that the Petitioner is

liable to pay the Court-fee on the valuation given by him.

In Apparswami v. P.S. Ramanatheswara (1961) 2 M.L.J. 34. Ramachandra Ayyar J., (as he then was) distinguished the decision rendered by

Jagadisan J., in Alamelu Ammal v. Thayarammal 73 L.W. 665. and held that a claim by a Defendant in a suit for possession of property for getting

cost of the improvements affected by him as a condition precedent for the decree for possession, is neither a claim for set-off not one by way of

counter-claim and that Section 8 of the Madras Court-fee and Suits Valuation Act cannot apply to such claims. In the course of his judgment,

Ramachandra Ayyar J., (as he then was) observed:

The Defendant cannot execute that decree and obtain payment of the amount adjudged as and for improvements. If the Plaintiff does not choses to

execute the decree the Defendant would have no right at all to recover what he spent for improvements by executing the decree. It is therefore

clear that Section 8 will not apply to the claim for improvements made by the Petitioner.

Ramamurti J., following the above said decision of Ramachandra Ayyar J., held in Subramania v. Shanmugham (1966) 1 M.L.J. 200 : ILR (1966)

Mad. 302, as follows:

Section 8 is the only provision in the Madras Court-fees and Suits Valuation Act, 1955, under which a party can be called upon to pay Court-fees

on a set-off or counterclaim. If the plea raised by a Defendant cannot in law amount to a plea of set-off as a counter-claim, there is no other

provision in the Court-fees Act under which a party can be called upon to pay court-fee on his written statement.

A right to make a counter-claim is not an unqualified one, but is a statutory one admissible only in cases falling under Rule 6 of Order 8 of the

Code of Civil Procedure. While set-off is limited to money claims there is no such limitation in the case of counter-claim. While a set-off is

essentially a ground of defence, a right of counter-claim could arise only if the Defendant could have a right to bring an independent action in

respect of the same. It is not really a defence to the Plaintiff''s claim, but is an independent claim by the Defendant against the Plaintiff, though in

certain cases, the rules of procedure might permit the Defendant to raise it in a suit by the Plaintiff. Every defence will not constitute a counter-claim

and a person whose right is not enforceable by on action cannot enforce it by a counter-claim. A plea or claim for the value of improvements by

the alienee in a suit for partition and possession is not a counter-claim Even if the Defendant succeeds in his claim it would be merely an attachment

of a condition to the decree for possession. Such a claim cannot be either by way of a set-off or by way of a counter-claim Even if the claim for

cost of improvements is allowed the Defendant cannot set it off against the decree for possession. It cannot be a counter-claim since no decree as

such could be passed in. favour of the Defendant, but, if the Plaintiff succeeds, a conditional decree will be passed in his favour

Uthandarama Pillai v. Arumugham Pillai 86 L.W. 676 is a decision of a Division Bench to which I was a party, over-ruled the decision in

Alamelu Ammal v. Thayarammal 73 L.W. 665, rendered by Jagadisan J. and approved the decision in Apparswami v P.S. Ramanatheswara

(1961) 2 M.L.J. 34 and also the decision in Subramania v. Shamugham (1966) 1 M.L.J. 200 : ILR (1966) Mad. 302 and held:

A counter-claim is one based on an independent cause of action which distinguished it from a set-off which will generally arise as a part of the

transaction giving rise to the cause of action for the suit As pointed out by Abdul Majid v. Abdul Rashid AIR 1951 All. 201 the essence of a

counter-claim is that the Defendant should have a cause of action against the Plaintiff and should be in the nature of a cross-action against the

Plaintiff and not merely a defence to the Plaintiff''s claim. Where in a suit for redemption of a mortgage and for possession of the hypotheca the

mortgagee claims the value for the improvements which he had effected with the mortgager''s consent, the claim is dependent on the grant of the

decree for a redemption and possession In case the claim for improvements is to be allowed, the payment thereof would be made a condition

precedent for redemption and delivery of possession of the hypotheca. There can be no decree for the value of the improvements in such a case

independent of redemption and delivery of possession. If the suit for redemption is dismissed automatically the claim for value of improvements

also is dropped. That would unmistakably show that the claim for improvements is not a counter-claim as is juridically understood.

After so observing, we have held that no court-fee was payable on the claim for improvements in such a suit.

As already noticed, Section 8 of the Court-Fees and Suits Valuation Act contemplates that a written statement pleading a set off or counter

claim shall be chargeable with fee in the same manner as a plaint. No such set off or counter-claim was made by the second, Defendant in his

written statement in the suit. It is only the consent preliminary decree that has given the right to the second Defendant to agitate the question of cost

of improvements in the final decree, proceedings. Accordingly, the second Defendant came forward with Interlocutory Application No. 382 of

1977 for the purpose of directing the Commissioner appointed to go into the question of mesne profits, to also determine the question of

improvements effected on the suit properties. The final decree which according to the lower Court states that the Defendants can put forward the

claim for improvements, if any as set-off for the claim of mesne profits claimed by the Plaintiff, cannot, in my opinion, give any right or cause of

action to the Petitioner so as to demand from him court-fee before such amount is actually determined by the Commissioner. It is clear from the

facts of the case that no claim either by way of a counterclaim of a set-off, was put forth in the written statement by the Petitioner in order to attract

the provisions of Section 8 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955.

Both as per the decisions referred to above and also as per the provisions contained in Section 8 of the Act, the facts and circumstances of the

present case do not warrant the payment of court-fee by the Petitioner even before the Commissioner appointed for the purpose of ascertaining

the mesne profits, determines the value of improvements as per the petition in Interlocutory Application No. 382 of 1977. The Petitioner herein

states that he is always ready and willing to pay court-fees or the value that may be determined by the Commissioner towards the improvement

made by him. The value given by the second Defendants, who is the Petitioner herein, is only tentative and the same has to be decided and

determined by the Commissioner after going into the evidence that may be let in for the purpose. Though the Sub-Court correctly understood the

preliminary decree and directed the Commissioner to ascertain the cost of improvements said to have been effected on the properties in respect of

the claim put forward by the second Defendant, it has committed an error, in directing the second Defendant to deposit the court-fee for the

improvements which he has valued at Rs. 12,500 within two weeks from the date of this order. Inasmuch as the Petitioner is willing to deposit the

court-fees as soon as the Commissioner determines the value of improvements effected on the suit properties before a final decree is passed on the

same, there is no need now for the Petitioner to pay the court-fee as directed by the Court below.

In these circumstances, the civil revision petition is allowed with the result the direction given by the Court below to the second Defendant to

pay court-fee, is set aside, and the Commissioner will go into the question of improvements as put forward by the second Defendant, who is the

Petitioner and determine the cost of improvements. It is made clear that the court-fee will have to be paid by the Petitioner on the amount that will

be determined by the Commissioner before a final decree is passed. There will be no order as to costs.