ORDER Shiv Dayal, J. This revision is directed against an order passed by the Civil Judge, First Class, Rajgarh, directing the Defendant State to pay ad valorem court-fee on the whole amount of 'set-off'. The Respondent's suit is that a certain building contract at Biaora was given to him by the former Government of Madhya Bharat. He was entitled to a final payment of Rs. 25,403.69 but on March 31, 1959, he was paid only Rs. 20,000, while the balance of Rs. 5,403.69 remained unpaid in spite of notice. The Defendant State of Madhya Pradesh denied that anything was due as payable to the Plaintiff. Under the heading 'additional pleas' it was explained in the written statement that while the building contract was in progress, the Plaintiff contractor used to submit running bills which were tentative and payments were made to him for the sake of his convenience; final bill was to be submitted and final payment was to be made when the work was completed. According to the final bill the contractor was taken as entitled to Rs. 25,403.69 but as a revised estimate had been submitted to the Superintending Engineer and some delay was likely to occur in getting his approval, a tentative payment of Rs. 20,000, as advance, was made to the Plaintiff, leaving a blance of Rs. 5,403.69. But when the revised estimate was received from the Superintending Engineer it was found that a total amount of Rs. 10,241 on account of 'lime lead' which had been included in the running bills and the final bill was disallowed. On deducting this amount it was found that nothing remained payable to the Plaintiff; on the contrary, the State was entitled to recover from the Plaintiff a sum of Rs. 4,837.31 which was overpaid. The Defendant State prayed for leave of the Court for bringing a separate suit for the recovery of that amount, because it did not want to press its claim in this suit "by way of set-off". The trial Judge held that this was not a fit case for granting permission to the Defendant State as prayed by it and that it was liable to pay court-fee on the "whole amount of set-off", i, e. Rs. 10,241. The trial Judge held that this was not a fit case for granting permission to the Defendant State as prayed by it and that it was liable to pay court-fee on the "whole amount of set-off", i, e. Rs. 10,241. I have been addressed at length by the Learned Counsel for both sides and a number of authorities have been cited to point out the distinction between "counter-claim" and "set-off" and that between "adjustment" and "set-off". I have stated above the pith and substance of the defence. It seems clear to me that all concerned got themselves confounded in the labyrinth of the terms "set-off", 'counter-claim' and 'adjustment', and the distinction between them. On closely analysing the case set-up in the written statement, essentially the defence is that before the return of the revised bill by the Superintending Engineer, the department had found Re. 25,403.69 nP. to be the amount payable to the Plaintiff on account of his final bill. The department proceeded to pay it off in full, but as the revised bill was awaited, provisional payment of Rs. 20,000 was made while the rest of the amount was kept in deposit. But when the revised estimate came back from the Superintending Engineer, who had rejected the contractor's claim on account of lime lead, the department on a recalculation determined that a total amount of Rs. 10,241 had been wrongly included in the running and final bills of the contractor because of the inclusion of the item of "lime lead". To put it precisely, the Defendant's case is that a total sum of Rs. 10,241 was "not due" to the contractor inasmuch as the final bill could be passed only to the extent of Rupees 15,162.69 and not Rs. 25,403.69. The consequence of this was that if the department had withheld any amount in excess of Rs. 10,241 it would have been deducted and the balance paid to the Plaintiff. But since the only sum lying with it for payment to the Plaintiff is Rs. 5,403.69, a sum of Rs. 4,837.31 has become recoverable from the Plaintiff and the sum of Rs. 5,403.69 has ceased to be payable. Therefore, the Plaintiff is not entitled to a decree for that amount; while the State is entitled to recover Rs. 4,837.37 which had been paid in excess of the money really due. 5,403.69, a sum of Rs. 4,837.31 has become recoverable from the Plaintiff and the sum of Rs. 5,403.69 has ceased to be payable. Therefore, the Plaintiff is not entitled to a decree for that amount; while the State is entitled to recover Rs. 4,837.37 which had been paid in excess of the money really due. This is not a case of set-off nor is this a case of adjustment nor of counter-claim, so far as the sum of Rs. 5, 403.69 is concerned. It is a pure and simple traversal by the Defendant that the sum is due to the Plaintiff. No court-fee is necessary on such a denial. As regards the sum of Rs. 4,837.38, which according to the Defendant, is recoverable from the Plaintiff, if the amount had not already been paid to the Plaintiff the same plea of "not due" would have been available for this part also. Since the amount had been paid and it became subsequently recoverable, the Defendant had two remedies-either to bring a separate suit against the Plaintiff or to make a set-off by way of counter-claim in the Plaintiff's suit. But here no decree has been claimed by the Defendant State and, as such, there is no set off by way of counter claim. In ultimate analysis so far as the sum of Rs. 4,837.31 is concerned, it is only a 'narration of facts' in the written statement to appraise the Court of the entire situation and the entire case of the Defendant. It was unnecessary for the Defendant to have sought any leave of the trial Judge for institution of a separate suit. It must also be observed that to plead set-off or to make a counter-claim is entirely for the Defendant and the Court cannot compel him to do so. When there is no set-off by way of counter-claim no question of payment of court-fee by the Defendant arose here. For reasons mentioned, this revision is allowed and the order passed by the trial Judge on September 30, 1959 is set aside. The Defendant State shall be entitled to prove its case as set out in the written statement without being obliged to pay any court-fee. No decree, however, can be passed in this suit in favour of the Defendant for Re 4,837.31 or any other sum unless a specific prayer is made and court-fee is paid thereon. The Defendant State shall be entitled to prove its case as set out in the written statement without being obliged to pay any court-fee. No decree, however, can be passed in this suit in favour of the Defendant for Re 4,837.31 or any other sum unless a specific prayer is made and court-fee is paid thereon. Since the Defendant is also responsible for the confusion created in the Court below and in the revision petition presented to this Court, it is disentitled to costs. Parties shall, therefore bear their own costs in this revision. Petition allowed