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1975 DIGILAW 255 (MAD)

A. Vadivelu v. A. Munuswami

1975-04-03

N.S.RAMASWAMI

body1975
Judgement JUDGMENT:- The question in this S.R. Number is as to the correct forum for the appeal filed by the defendant in the suit. I have heard the arguments of the learned counsel for the appellant and those of Mr. G.R. Lakshmanan, appointed as an amicus curiae, and I am thankful to Mr. Lakshmanan for bringing to my notice the several decisions which have a bearing on the question to be decided. 2. The suit arose out of a dispute between the parties in the implementation of an agreement for sale. The plaintiff was the intending purchaser and the defendant, the seller. The plaintiff filed the suit claiming a sum of Rs. 9000 as damages on the averment that the defendant had committed breach of contract. The defendant contended in his written statement that the breach was committed only by the plaintiff and not by him and that therefore the plaintiff should be non-suited. Further he made a counter-claim of a sum of Rs. 4000 odd made up of Rupees 1500 as damages and Rs. 2500 odd as unpaid purchase money. The Court below held that it was the defendant who committed breach of contract. It further held that the plaintiff was entitled to damages, but restricted the quantum to the sum of Rs. 6000. On the above finding, the defendant's claim for damages of Rs. 1500 by way of counter-claim naturally stood negatived. As far as the remaining part of the counter-claim namely, regarding the unpaid purchase money, the court below said that the defendant was entitled to only a sum of Rs. 700 odd from the plaintiff. Now the defendant has filed this appeal in this court whose value is given as Rs. 8600. 3. The Office returned the appeal memo stating that the value of the suit being only Rs. 9000, under Section 15 of the City Civil Court Act, the appeal lay to the Principal Judge, City Civil Court, and not to this Court. The learned counsel for the appellant did not agree and therefore the matter has been placed before court. 4. The Office returned the appeal memo stating that the value of the suit being only Rs. 9000, under Section 15 of the City Civil Court Act, the appeal lay to the Principal Judge, City Civil Court, and not to this Court. The learned counsel for the appellant did not agree and therefore the matter has been placed before court. 4. The contention of the learned counsel for the appellant is that as per Section 15 of the City Civil Court Act, the value of the subject-matter of the suit determines the forum and in the present case the value of the subject-matter of the suit must be taken to be not only the sum of Rs. 9000 claimed by the plaintiff but also the sum of Rs. 4000 odd claimed by the defendant by way of counter-claim. Thus according to him the value of the subject-matter of the suit is over Rs. 13000. If the contention of the learned counsel in this regard is right, then the appeal should lie to this court, for the relevant section in the City Civil Court Act says that where the value of the subject-matter of the suit exceeds Rs. 10,000, the appeal shall be to this court. 5. After hearing the learned counsel and Mr. Lakshmanan (amicus curiae), I am satisfied that the value of the subject-matter contemplated in Section 15 of the City Civil Court Act cannot possibly take in the value of the counter claim made in the written statement. Only the value given by the plaintiff in respect of his claim in the plaint is the value of the subject-matter of the suit. The counter-claim is really an independent claim. Though on equitable principles the defendant is not driven to a separate suit but allowed to make his claim in the suit filed by the plaintiff. That the counter-claim is in the nature of an independent suit as has been recognised in several decisions. In Laxmidas v. Nanabhai AIR 1964 SC 11 , what happened is this. In a suit by the plaintiff, the defendant made a counter-claim. The trial court converted the counter-claim into a separate cross suit. The Supreme Court held that the procedure adopted by the trial court was proper. This is on the basis that the counter-claim is an independent action. 6. In a suit by the plaintiff, the defendant made a counter-claim. The trial court converted the counter-claim into a separate cross suit. The Supreme Court held that the procedure adopted by the trial court was proper. This is on the basis that the counter-claim is an independent action. 6. In Saraswathiswami v. Sivaramamurthi AIR 1949 Mad 630, the question arose in a different form. The plaintiff filed the suit on the Original Side of this court. The defendant made a counter-claim. But the cause of action for the counter-claim had not arisen within the jurisdiction of this court. This court held that the counter-claim cannot be entertained in this court. This decision has been followed by the Andhra Pradesh High Court in Imam Peer v. Khadija Bi, AIR 1965 Andh Pra 18. 7. In Jamnadas v. Beharilal AIR 1941 Nag 258, the counter-claim made by the defendant was of small nature. It was held that the defendant had to make his claim only in a small cause suit separately and that cannot be entertained by the court which was trying the plaintiff's suit. 8. In Moideen Baba v. Chettiar Firm AIR 1934 Rang 160, the plaintiff in whose suit the defendant had made a counter-claim withdrew his suit; but it was held that in spite of such withdrawal of the suit by the plaintiff, the counter-claim was sustainable. 9. All these decisions proceed on the footing that the counter-claim by a defendant, though in the written statement, is in the nature of an independent suit. As I said, only on equitable grounds the defendant is allowed to put forward his claim, though it is really an independent one, in the suit filed by the plaintiff. 10. Even if the appeal in this case related to the entire plaint claim and that in the counter-claim, the value of the appeal exceeding Rs. 10,000, the forum would be only the court of Principal Judge, City Civil Court and not this Court, for the criterion is the value of the subject-matter of the suit and not that of the appeal. (Vide Putta Kannayya Chetti v. Rudrabhatla Venkatanarasayya 32 Mad LJ 221 = (AIR 1918 Mad 998 (2) (FB) 11. The learned counsel invited my attention to Sec.53 of the Court-fees Act; but that has no relevance to the point to be decided. (Vide Putta Kannayya Chetti v. Rudrabhatla Venkatanarasayya 32 Mad LJ 221 = (AIR 1918 Mad 998 (2) (FB) 11. The learned counsel invited my attention to Sec.53 of the Court-fees Act; but that has no relevance to the point to be decided. All that that section says is that in a suit as to whose value for the purpose of determining the jurisdiction of Courts, specific provision is not otherwise made, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same. From this provision it cannot be contended that the plaintiff has paid court fee on the sum of Rs. 9000, claimed by him and the defendant has paid court-fee on the sum of Rs. 4000 claimed by him and that therefore the value of the subject-matter of the suit itself is more than Rupees 10000. From what I said earlier, it is quite obvious that the counter-claim is an independent action and the value of the same cannot be mixed up with the value of the subject-matter of the suit. 12. The learned counsel also referred to Order 20 Rule 19 C. P. C. There sub-rule (2) says that any decree passed in a suit in which a set off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed. This is pointed out to show that there is no similar provision in respect of counter-claim and that therefore the value of the subject-matter of the suit for the purpose of the value of the appeal must be taken to be not only the value of the claim made by the plaintiff but also that of the claim made in the counter-claim. But the learned counsel forgets that there is a specific provision with regard to set-off under Order 8, C.P. C. As the Code makes specific provision for making a set-off in the written statement, there is also specific provision with regard to the valuation under Order 20 Rule 19 C. P. C. Admittedly, the Code does not make any provision with regard to making of a counter-claim in written statement. Therefore, the absence of a provision regarding the counter-claim similar to the one contained in O.20 R.19 C. P. C., which relates to set-off, is no ground to hold that the value of the counter-claim should also be clubbed with that of the plaint claim in arriving at the value of the 'subject-matter of the suit.' 13. The learned counsel also referred observation of Ramamurti J. in Subramania Chettiar v. Shanmugham 1966-1 Mad LJ 200 at p. 202 = ( AIR 1967 Mad 300 at p. 301), wherein the learned Judge draws the distinction between set-off and counter-claim. It is pointed out that set-off is a defence and counter-claim is not really a defence to the plaintiff's claim but is a weapon of offence. This really strengthens the view that I am taking, namely, that the counter-claim is really an independent claim and the value of the counter-claim cannot be clubbed with that of the plaint claim in arriving at the value of the subject-matter of the suit. I hold that the appeal lies to the principal Judge, City Civil Court, Madras, and not to this court. The appeal memo and the connected papers are to be returned (for presentation to the proper court) on 15th April 1975 forenoon.