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Judgment
19 paragraphs · 389 wordsK. Veeraswami, C.J.—This civil revision petition comes before us on a reference by one of us, on the ground that there was conflict of
opinion on the question whether court-fee would be payable on the value of improvements effected by consent, which is claimed by the mortgagee
in a suit for redemption and possession.
Alamelu Ammal Vs. Thayarammal, held that such a claim for improvements was a counterclaim and would attract court-fee u/s 8 of the Madras
Court-fees and Suits Valuation Act. Apparswami Chettiar Vs. Sri Parvathavardhani Sametha Ramanatheeswara, differed from that view and
though that such a claim would not be a counter-claim and no court-fee would be payable, T.A.M. Subramania Chettiar Vs. K.M. Shanmugham
and Others, shared the view of Apparswami Chettiar Vs. Sri Parvathavardhani Sametha Ramanatheeswara, . A counter-claim is one based on an
independent cause of action which distinguishes 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 Vs. Abdul Rashid and Others, , the essense 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 mortgagor''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 dropped. That would unmistakably show that the
claim for improvements is not a counter-claim as is juridically understood.
It follows that Alamelu Ammal Vs. Thayarammal, does not represent the correct view. No court-fee is payable on the claim for improvements in
such a suit. The Civil Revision Petition is allowed, but with no costs.
Revision allowed.