ORDER:- This revision petition arises out of an order passed by the learned Subordinate Judge of Salem directing the 5th defendant in the suit, O.S. No. 64 of 1963 to pay a sum of Rs. 750 as Court-fee. The plaintiff filed a suit for partition and separate possession of his share in the suit properties. Defendants 1 to 4 who are members of the family are sailing together. The first defendant had executed a sale deed in favour of the 5th defendant which is attacked on the ground that it is not an out and out sale but was executed merely to serve as security for a loan transaction. The 5th defendant, alienee, besides contending that the sale deed executed in his favour by the first defendant is a genuine transaction, claimed a sum of Rs. 10,000 by way of moneys spent by him bona fide in the improvement of the suit property, and that if the sale deed should be held to be not binding upon the plaintiff and defendants 2 to 4 the amount spent by the 5th defendant for improvements, should be held to be binding upon the members of the family. The question for decision is whether the claim of the 5th defendant is liable to payment of Court-fee as a written statement pleading a set-off or a counter-claim under section 8 of the Madras Court-fees Act of 1955, hereinafter referred to as the Act. The learned Subordinate Judge while holding that the 5th defendant is liable to pay Court-fee under section 8 of the Act has relied upon and followed a recent unreported decision of Venkatadri, J., in C.R.P. No. 1216 of 1960. Hence this revision petition. It must be mentioned at the outset that the only provision having a bearing on the above question is section 8 of the Act. If the pleas raised by the defendant do not amount to a plea of set-off or a counter-claim there is no other provision by which he could be called upon to pay Court-fee. In other words the State should bring the case within the four corners of the section. Vide Joga Rao v. Venkata Rao1. If the pleas raised by the defendant do not amount to a plea of set-off or a counter-claim there is no other provision by which he could be called upon to pay Court-fee. In other words the State should bring the case within the four corners of the section. Vide Joga Rao v. Venkata Rao1. It should also be borne in mind that a right to make a counterclaim is a statutory one and a counter claim is not admissible in a case which is admittedly not within Order 8, rule 6, Civil Procedure Code. Vide Laximidas v. Nanabhai2, for the legal incidents of a plea in the nature of a counter-claim. Unless the rules of procedure of the particular Court or Courts provide for counter-claims the defendant has no unqualified right to set up a plea which is essentially in the nature of a counter-claim. The plea of the 5th defendant is obviously not a plea of set-off. It is only money claims that may give rise to a plea of set-off. The right to set-off is the right to plead a debt or a money claim due from the plaintiff in deduction or extinction of the plaintiff’s claim. It was unknown to Common law and the right of a set-off was later recognised by statutes and apart from the rights at law conferred by statute the defendant is also permitted to raise a plea of equitable set-off but whether it is a legal or equitable set-off such a plea could exist only where both the plaintiff’s and the defendant’s claims are for recovery of money, Vide Halsbury’s Laws of England, Simonds’ Edition, Vol. 34, page 396, paras. 673 and 674. The essential condition, namely, a suit being one for recovery of money, is not satisfied in the instant case and therefore obviously no plea of set-off can arise. The question therefore arises whether the written statement should be construed as giving rise to a plea of counter-claim. Like set-off, a counter-claim is available to a defendant only when the rules of procedure of the Courts in which the plaintiff brings his action allow a counter-claim to be set up. In certain important aspects a plea of counter-claim is different and distinguishable from a set-off in its application and in its effect. While set-off is limited to money claims there is no such limitation in the case of counter-claims. In certain important aspects a plea of counter-claim is different and distinguishable from a set-off in its application and in its effect. While set-off is limited to money claims there is no such limitation in the case of counter-claims. Any claim in respect of which the defendant could bring an independent separate action against the plaintiff can form the subject-matter of a plea of counter-claim, provided such a plea can be conveniently tried with the plaintiff’s claim. Counter-claims can be made in a suit for injunction, specific performance or, for a declaration. The main basic difference between a plea of set-off and that of a counter-claim is that in the former case it is a ground of defence, a shield and not a sword which when established affords an effective answer to the plaintiff’s claim either in whole or in part whereas a counter-claim is not really a defence to the plaintiff’s claim but is weapon of offence, enabling the defendant to enforce his right or claim against the plaintiff as effectively as art independent action of his own. Where the claim of the plaintiff is for recovery of money the plea of the defendant, to the extent to which it operates as an extinguishment of the plaintiff’s claim, is in the nature of a set-off, while in respect of the balance claimed by the defendant it partakes of the character of a counterclaim. In this connection reference may be made to the following statement of the law in Vol. 34, Halsbury, page 411, para. 720: “Subject-matter of counter-claim: A counter claim can in general, be brought in respect of any claim that could be the subject of an independent action. It is not confined to money claims, or to causes of section of the same matters as the original action; and, except where a person other than the plaintiff is also made a defendant to it, it need not relate to or be connected with the original subject to the cause or matter. A claim founded on tort may be opposed to one founded on contract and in an action in rem the defendant may set up a counter-claim in personam. A claim founded on tort may be opposed to one founded on contract and in an action in rem the defendant may set up a counter-claim in personam. The defendant by his counter-claim may ask for any form of relief, for example, a declaration a vesting order or relief against forfeiture, an injunction, a receiver, specific performance, a revocation of a patent, an account, payment of money claim, or damages.” It is necessary to note that a plea can form the subject-matter of a counter-claim only if in respect of that claim the defendant could bring an independent action against the plaintiff. In other words, if the defendant could not have filed an action for the enforcement of the particular right against the plaintiff in an action of his own, the accident of the plaintiff filing some suit against the defendant cannot enable the latter to agitate his right in the form of a counter-claim. The sine qua non of the plea of a counter-claim is that the defendant should have an independent right to agitate the same in an action of his own. If the above main incidents or features of a counter-claim are borne in mind it will be clear beyond doubt that a plea for the value of improvements by the alienee in a suit for partition is not a counter-claim. Order 8, rule 6, Civil Procedure Code, corresponds to Order 19, rule 3 of the English Rules of the Supreme Court and in the White Book the Annual Practice, Vol. I, the law is stated in these terms at page 452: “To what extent a counter-claim is an independent action : A counter-claim is substantially a cross action; not merely a defence to the plaintiff’s claim. It must be of such a nature that the Court would have jurisdiction to entertain it as a separate action (Bow Maclachan & Co. v. The Camosun1; Williams v. Agius2. ‘A counter-claim is to be treated for all purposes for which justice requires it to be so treated, as an independent action ‘(Per Bowen, L.J., in Amon v. Bobbett.3” I may first refer to the Bench decision of the Allahabad High Court in Abdul Majid v. Chief Inspector of Stamps4. v. The Camosun1; Williams v. Agius2. ‘A counter-claim is to be treated for all purposes for which justice requires it to be so treated, as an independent action ‘(Per Bowen, L.J., in Amon v. Bobbett.3” I may first refer to the Bench decision of the Allahabad High Court in Abdul Majid v. Chief Inspector of Stamps4. In that case in a suit for pre-emption the defendants pleaded that they had spent certain amounts in making improvements to the property sought to be pre-empted and that the plaintiff’s claim should not be decreed without making the plaintiffs liable for the amount so spent by the defendants. It was held that the plea raised by the defendants did not constitute a counter-claim and therefore no Court-fees were payable under the Court-fees Act, Central Act of 1870, Schedule I, Article I. It was observed that the defendants could not have brought a separate suit against the plaintiff claiming the value of the improvements and the claim therefore, could only be put forward as a defence to the suit and can hardly be called a counter-claim. The Bench followed the ratio of an earlier decision in Haidari Begam v. Gulzar Bano5. That case dealt with a suit for recovery of property in the possession of a Muslim lady who, while resisting the suit for possession contended that she could not be dispossessed without payment to her of a sum of Rs. 80,000 towards the amount of dower due. The trial Court passed an unconditional decree for possession holding that the claim for dower could not be made a condition precedent to the decree for possession. The defendant appealed and the question arose whether the defendant should pay Court-fee in appeal on the sum of Rs. 80,000 or the value of the property. It was held that the subject-matter in dispute in the appeal was the value of the property and that the Court-fee paid thereon was sufficient. The matter was put thus by Tudball, J., at page 325: "It is perfectly true that it is open to this Court to grant a decree to the plaintiff conditional on payment of whatever may be found due to the defendant as her dower debt. But even in that case it will not be a decree which the defendant appellant would be able to put into execution, so as to enable her to recover her debt. But even in that case it will not be a decree which the defendant appellant would be able to put into execution, so as to enable her to recover her debt. It would be merely an attachment of a condition to the decree for possession. Of course it may also be that the Court might dismiss the claim of the plaintiff intoto or it might uphold the decree of the Court below." The same view has been taken by a Bench of this Court in Reference under Court-fees Act1, in which it was held that in a suit for ejectment the tenant’s claim for improvements is not really the subject-matter in dispute but merely incidental to the decree for possession. I may next refer to the Bench decision of the Patna High Court in Pradada Prasad v. Sagarmal2. In that case the plaintiffs brought a suit for a dclaration that a managing agency secured from them by the defendant was vitiated by misrepresentation and fraud. In addition to seeking the relief of rescission of the contract the plaintiffs also sought the recovery of a sum of Rs. 55,000, comprising the payment by them of the security deposit and salami. The defendant while resisting the suit on the merits raised the plea that as a condition for the grant of the relief of the rescission of the contract the plaintiffs should be made to restore such benefits which (the value of 5,398 tons of coal) they received under the contract in question. The learned Subordinate Judge directed the defendant to pay Court-fee under Schedule I, Article I, on the value of 5,398 tons of coal received by the plaintiffs from him. But on revision the’ High Court held that the plea of the defendant did not constitute either a plea of set-off or a counter-claim within the meaning of Schedule I, Article I, of the Central Court-fees Act. The learned Judges following the English cases held that in order that a plea can constitute a counter-claim it must be of such a nature that the Court would have jurisdiction to entertain it as a separate action. The learned Judges following the English cases held that in order that a plea can constitute a counter-claim it must be of such a nature that the Court would have jurisdiction to entertain it as a separate action. It is obvious that if the plaintiffs had not filed the suit seeking the relief of rescission of the contract the defendant could not have brought an independent action of his own for recovery of the value of the coal delivered by him to the plaintiffs. I may now refer to the decision of Ramachandra Iyer, J., (as he then was) in Apparswami v. Sri P. S. Ramanatheeswara3. In that case the plaintiff brought a suit for a declaration of title and for possession and the defendant contesting the same, amongst other things, raised the plea that as he had effected improvements to the property to an extent of Rs. 1,500 he should be compensated to that extent before a decree for possession is passed. The trial Court held that the defendant should pay Court-fee on that amount but this decision was reversed in revision. It was held that the claim of the defendant that there should only be a conditional decree is neither a claim for set-off nor one by way of a counter-claim. It is sufficient to refer to the following observations of the learned Judge at page 528: "In my opinion, the claim of the petitioner cannot be said to be either one by way of set-off or by way of counter-claim. For example, it cannot be said that even if the cost of improvements is allowed to the petitioner, he would be entitled to set it off against the decree for possession that may be passed in favour of the respondent. Nor can it be said that it is a counter claim for the simple reason that no decree could be passed in favour of the defendant who claims compensation for improvements. The only decree that will be passed in the suit if the plaintiff succeeds in his claim and the defendant also succeeds in his case as to improvements, will be a conditional one viz., that the plaint-tiff will be extitled to delivery of possession on payment of the amount adjudged to the defendant. The defendant cannot execute that decree and obtain payment of the amount adjudged as and for improvements. The defendant cannot execute that decree and obtain payment of the amount adjudged as and for improvements. If the plaintiff does not choose to execute the decree the defendant would have no right at all to recover the amount which 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."