Lakshmikutti Ammal v. Velayudhan Asari — 1965 DIGILAW 125 (KER)

Judgment :- 1. In this revision, Mr. C.S. Rajan, learned counsel for the defendant-petitioner, attacks the findings recorded by the learned Munsiff, Trivandrum on issue (ii) in O. S. No. 341 of 1964. 2. The plaintiffs have instituted the suit in question for a declaration of their title to the suit properties as well as for recovery of possession together with mesne profits from the defendants. 3. According to the plaintiffs, the plaint A and B schedule properties belonged to the father of the plaintiffs and they had been mortgaged in favour of a third person. It is the further case that the equity of redemption in B schedule items alone was sold by the father to the predecessor-in-interest of the defendants for a sum of Rs. 1,300. According to them the condition was that a sum of Rs. 968-9-0, from and out of this sale consideration was reserved with the defendants for redeeming the properties outstanding on mortgage namely plaint A and B schedule properties from third persons and after recovery of possession of the same, A schedule items have to be surrendered to the plaintiffs. Inasmuch as the defendants after redeeming both the sets of items have not surrendered possession of the plaint A schedule items, the suit is instituted for the reliefs mentioned earlier. The defendants have raised several contentions, but this Court is now concerned only with the question as to whether the petitioners should pay court fees in respect of certain claims made in the written-statement particularly referred to in Para.17 thereof. 4. In Para.17 of the written-statement, they have stated that in respect of A schedule properties, a sum of Rs. 1,354.55 is due to them for improvements effected on the property which is payable by the plaintiffs. They have also stated that apart from this amount, they have incurred litigation expenses for the purpose of redeeming A and B schedule properties which again they are entitled to get from the plaintiffs. They have made, in their claim, in the sub-paragraph, that over and above this amount, they have also to get a sum of Rs 1,038.30 representing the amount that they have paid as value of improvements in respect of B schedule properties when they redeemed the same from the mortgagees. 5. They have made, in their claim, in the sub-paragraph, that over and above this amount, they have also to get a sum of Rs 1,038.30 representing the amount that they have paid as value of improvements in respect of B schedule properties when they redeemed the same from the mortgagees. 5. Issue No. (ii) appears to relate to the question as to whether the claim made in Para.17 regarding the various amounts referred to above does not amount to a counter-claim so as to attract the provisions of S.8 of the Court Fees Act and justify the levy of court fees before the claim of the defendants is adjudicated by the court. 6. The learned Munsiff has taken a view in the order under attack that this claim must be considered to be independent of the contract on the basis of which the suit is instituted and the claim is more in the nature of a claim for damages. Then the learned Munsiff more positively says that the said claim really amounts to a counter-claim and that as such the defendants are liable to pay the court fee on the amount and the court has also stated that if the court fees are not paid, that claim will not be considered in this suit. There is no gainsaying the fact that under S.8 of the Court Fees Act, if the claim in question amounts' to a claim of set-off or counter-claim contained in a written-statement, it shall be chargeable with fee in the same manner as a plaint. 7. But according to Mr. C. S. Rajan, it cannot certainly be considered to be a claim as and by way of a set-off which is really dealt with under Order VIII, R.6 CPC. Order VIII, R.6 relates to particulars of set-off to be given in the written-statement. But sub-rule (1) of R.6 starts by saying that such a plea of set-off must be in a suit for the recovery of money and in such a suit the defendant can claim to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff. 8. But sub-rule (1) of R.6 starts by saying that such a plea of set-off must be in a suit for the recovery of money and in such a suit the defendant can claim to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff. 8. In this case the learned counsel points out that the suit instituted by the plaintiff is a suit for recovery of possession of properties on the basis of title and in pursuance of the contract pleaded by them though no doubt there is also a claim for mesne profits. But in no sense, the learned counsel points out, can this suit be considered to be a suit for recovery of money. The learned counsel also pointed out certain provisions contained in the Kerala Court Fees and Suits Valuation Act, namely S.22, dealing with suits for money, and S.30, dealing with suits for recovery of possession of immoveable property, and S.44, dealing with suits for recovery of mesne profits. Therefore, the learned counsel points out that unless the claim in the suit can come within the ambit of S.22 of the Court Fees Act read with sub-rule (1) of R.6 of Order VIII CPC., the claim made by the defendants cannot be considered to be a plea of set-off. 9. According to the learned counsel, the claim made by his clients is not also a counter-claim as it is only taken as a defence to an action instituted by the plaintiffs. The learned counsel pointed out that in order to constitute a counter-claim, the essential ingredients have been laid down by decisions of courts. 10. In this connection Mr. C.S. Rajan, referred me to the Division Bench judgment of the learned Chief Justice and Mr. Justice Desai of the Allahabad High Court reported in Abdul Majid v. Abdul Rashid AIR. 1950 All 201. The learned Chief Justice at page 202 discussing the ingredients of a counter-claim states that the essence of a counter-claim is that the defendant should have a cause of action against the plaintiff and the counter-claim is in the nature of a cross action; and not merely a defence to the plaintiff's claim. 1950 All 201. The learned Chief Justice at page 202 discussing the ingredients of a counter-claim states that the essence of a counter-claim is that the defendant should have a cause of action against the plaintiff and the counter-claim is in the nature of a cross action; and not merely a defence to the plaintiff's claim. The learned Chief Justice refers to several English decisions on that point and ultimately holds that a counterclaim must be of such a nature that the court would have jurisdiction to entertain it as a separate action that may be brought by the defendant concerned. 11. In this case the learned counsel pointed out that it is not open to his client to continue in possession of the property and institute a separate suit for recovery of the sums mentioned in Para.17 of the written-statement. The learned counsel also referred me to the decision of Mr. Justice Ramachandra Iyer, as he then was, of the Madras High Court reported in Apparswami v. Sri P.S. Ramanatheeswara AIR. 1961 Mad. 527. The learned judge had to consider an analogous provision contained in the Madras Court Fees and Suits Valuation Act, viz., S.8, which corresponds to S.8 of the Kerala Act. In the case before the learned judge, it will be seen that in a suit filed by a plaintiff for declaration of title to the property and for possession and recovery with mesne profits, the defendant, apart from contesting the title of the plaintiff, set up a plea that he has effected improvements in the sum of Rs. 1,500 on the property. He prayed that before a decree for possession can be passed in favour of the plaintiff, the defendant should be compensated in this sum of Rs. 1,500. The trial court called upon the defendant to pay court fee under S.8 of the Madras Court Fees Act treating this claim for Rs. 1,500 representing the value of improvements, as a counter-claim. That order of the trial court was challenged before the learned judge and the learned judge set aside the order of the trial court. It is the view of the learned judge that the claim for value of improvements, set up by the defendant in a suit for recovery of possession with mesne profits cannot be considered to be either a plea of set-off or even as a counter-claim. It is the view of the learned judge that the claim for value of improvements, set up by the defendant in a suit for recovery of possession with mesne profits cannot be considered to be either a plea of set-off or even as a counter-claim. The learned judge points out that even if the cost of improvements is allowed in favour of the defendant, he will not be entitled to set it off against the decree for possession that may be passed in favour of the plaintiff. The learned judge also is of the view that it cannot be treated as a counter-claim because no decree can be passed in favour of the defendant who claims the value of improvements; and even if the plaintiff succeeds in his claim and the defendant also succeeds in establishing his claim for value of improvements, only a conditional decree will be passed in favour of the plaintiff to recover possession of the property on payment of the value of improvements. 12. But the point to be noted is that the learned judge later on emphasises that even under those circumstances, the defendant cannot execute the decree independently and obtain payment of the amount adjudged as and for the value of improvements claimed by him and that if the plaintiff does not choose to execute the decree, the defendant will have no right to take any action on the basis of the decree. 13. I am in respectful agreement with the test adopted by the learned judges of the Allahabad High Court and also by Mr. Justice Ramachandra Iyer of the Madras High Court in the decisions referred to above. I may also add that the decision of the Allahabad High Court has been adopted and followed by a learned Single Judge of the Rajasthan High Court in the decision reported in Jaidayal v. Gajadhar AIR. 1956 Raj. 155. Therefore, based upon all these decisions, the learned counsel pointed out that the order of the lower court treating the claim contained in Para.17 of the written-statement as a counter-claim is erroneous. 14. The learned Government Pleader as well as Mr. S.A. Nagendran, learned counsel for the plaintiffs-respondents, no doubt supported the views expressed by the lower court. The learned Government Pleader and Mr. S.A. Nagendran placed reliance upon a decision of the Madras High Court of Mr. 14. The learned Government Pleader as well as Mr. S.A. Nagendran, learned counsel for the plaintiffs-respondents, no doubt supported the views expressed by the lower court. The learned Government Pleader and Mr. S.A. Nagendran placed reliance upon a decision of the Madras High Court of Mr. Justice Jagadisan reported in Ramakrishna v. Ranganayakulu AIR. 1962 Mad. 354. No doubt in that decision it will be seen that in a suit filed for redemption of a mortgage, the defendant pleaded that the plaintiff should not be allowed to redeem the Otti without paying the improvements effected by him. That formed the subject of an issue and the lower court held that the said plea amounts to a counter-claim and is chargeable with court fees under the Madras Court Fees Act, S.B. The order was challenged before the learned Judge. But the learned judge was not prepared to interfere with the order. If I may say so with great respect, there is not much of a discussion as to how exactly the learned judge has ultimately come to the conclusion that the claim in that case should be treated as a counter claim. In fact, this decision was referred to before Mr. Justice Ramachandra Iyer in Apparswami v. Sri. P.S. Ramanatheeswara AIR. 1961 Mad. 527 but the learned judge was not prepared to adopt that decision. 15. Mr. S.A. Nagendran, learned counsel for the plaintiffs, no doubt, referred me to certain observations contained in a decision of Wadia, J. in Lassoo and Sons v. Krishna AIR. 1932 Born. 617. But on going through that decision more carefully, it is seen that the claim arose in a suit for money in which case the claim made by the defendant will certainly come as a plea of set-off, under Order VIII, R.6 of the Code. If I may say so with great respect, the learned judge had really no occasion in that case to consider the exact ingredients of a counter-claim; and therefore the observations made by the learned judge that both a plea of set-off and counter-claim stand more or less on the same footing must be considered to be in the nature of an obiter dicta. Mr. S.A. Nagendran relied upon a Full Bench decision of the East Punjab High Court reported in Jessie George v. Shakuntala AIR. Mr. S.A. Nagendran relied upon a Full Bench decision of the East Punjab High Court reported in Jessie George v. Shakuntala AIR. 1950 E. P. 225 where the question of the applicability of the principle of equitable set-off has been considered. 16. The question of applying the principles of a legal set-off or an equitable set-off does not arise in this case because that question of nature of set-off will arise only if it is a suit for money as provided in Order VIII, R.6 CPC. In fact, the learned judges of the Full Bench of the East Punjab High Court were dealing with a claim for money made by the plaintiff and therefore they had to consider the question as to whether the principles of equitable set-off cannot be invoked in that case in respect of the claim made by the defendant. 17. I am not inclined to accept the reasoning of the learned Munsiff that all the claims made in Para.17 of the written statement are to be treated as a counter-claim in respect of which the defendant should pay court fees under S.8 of the Kerala Court Fees Act. I am prepared to divide the claim made in Para.17 under three heads namely, (i) The claim of rs.1,354.55 in respect of value of improvements stated to have been effected on the suit properties which is the subject of this litigation namely A schedule properties; (ii) The costs stated to have been incurred by the defendants for redeeming both sets of properties namely the plaint A and B schedules; and (iii) The sum of Rs. 1,038.30 stated to have been given by the defendants as value of improvements when redeeming the B schedule properties. 18. So far as the last item is concerned, in my view, the contention of the learned counsel for the petitioner that it does not amount to a counter-claim in the sense that his clients cannot bring a separate action for recovery of the same and that it can only be pleaded as a defence to an action cannot be accepted. Both the learned Government Pleader and Mr. S.A. Nagendran, learned counsel for the plaintiffs are well-founded in their contention that this claim for payment of Rs. Both the learned Government Pleader and Mr. S.A. Nagendran, learned counsel for the plaintiffs are well-founded in their contention that this claim for payment of Rs. 1,038.30 being the value of improvements paid regarding B schedule items, which do not form the subject of this litigation, can very well form the basis of an independent and separate suit by the defendants. 19. Therefore, it must be held that this claim namely the claim made by the defendants for being reimbursed in the sum of Rs. 1,038.30 will have to be treated as a counter-claim and the defendants will have to pay court fees under S.8 of the Court Fees Act. Similarly in respect of claim (ii) referred to above namely, costs stated to have been incurred by the defendants for redeeming A and B schedule properties, there again that claim can very well form the basis of a separate action by the defendants and that must be treated as a counter-claim for which the defendants will have to pay court fees. But so far as item (i) referred to above is concerned, namely the claim for being reimbursed in the sum of Rs. 1,354.55 stated to be the value of improvements effected on A schedule items, which are the subject of this litigation, that claim cannot be considered to amount to a plea either of set-off or counter-claim so as to make the petitioners liable to pay court fees. 20. Therefore, the order of the learned Munsiff will stand modified to this extent, namely that in respect of item (i) referred to above the petitioners are not bound to pay any court fees. The petitioners will give a fuller and better valuation of claim No. (ii), namely, the costs stated to have been incurred by them for redeeming the plaint A and B schedule properties within a time to be given by the lower court and on such valuation being given they will be called upon to pay court fees both in respect of items (ii) & (iii) preferred to above. 21. The order of the lower court will stand modified to the extent indicated above and in other respects the order of the lower court will stand. Parties will bear their own costs in this court.