Judgment :- 1. Second defendant is the petitioner herein. The respondent herein filed O.S. 113 of 1969 on the file of the Sub-Court, Coimbatore, for partition of the suit properties into two equal shares and for delivery of possession of one such share to him and recovery of past mesne profits of Rs. 4,769 till date of plaint and future mesne profits at Rs. 2,140 and Rs. 517 for the A and B schedule properties, and for costs. A preliminary decree for partition was passed as early as 15th September, 1973. The operative portion of the preliminary decree is as follows: “(1) That the suit properties be divided into two equal shares and defendants do deliver possession of one such share to the plaintiff, (2) and that question of mesne profits, costs, improvements and any amount due to each party be reserved for the final decree proceedings”, This preliminary decree was passed on the joint endorsement made by the parties to the following effect: “without prejudice to the rights and claims a preliminary decree may be passed regarding partition of the suit properties. And question of mesne profits, costs, improvements and any amount due to each party may be reserved for the final decree proceedings”. It is also admitted by both the parties herein that a final decree has been passed in respect of the immoveable properties and possession has also been handed over to the respective parties. 2. I. A. 362 of 1977 was filed by the second defendant, who is the petitioner herein, praying for issue of directions to the Commissioner to record evidence for ascertainment of future mesne profits and also to record evidence not only on the question of future mesne profits but also on the question of improvements and any other amount due to each party as reserved in clause (2). The respondent herein opposed the application stating that the petitioner could as well file an independent suit to recover his dues for improvements and that he could not seek to issue fresh direction to the Commissioner to enquire into the improvements and costs of the alleged improvements and prayed for the dismissal of the application. The respondent herein opposed the application stating that the petitioner could as well file an independent suit to recover his dues for improvements and that he could not seek to issue fresh direction to the Commissioner to enquire into the improvements and costs of the alleged improvements and prayed for the dismissal of the application. The learned Subordinate Judge, Coimbatore, in his order referring to the final decree proceedings in I. A. No. 146 of 1974, observed that in the final decree there is a provision to the effect that if the plaintiff files a petition for mesne profits under Or. 20 R. 12, C.P.C. against defendants 2 to 4, the defendants could put forward in that petition the claim for improvements, if any, as set-off against the claim of mesne profits claimed by the plaintiff, that as per the final decree, in I. A. No. 146 of 1974, defendants 2 to 4 were entitled to put forward claim for improvements in the same application wherein the plaintiff has claimed mesne profits and that the Commissioner was to be directed to ascertain the improvements said to have been effected on the properties, by the second defendant. After so observing, the learned Subordinate Judge directed the second defendant to submit a list of the improvements in respect of which the claim has been made by him and also directed him to pay a remuneration of Rs. 75 to the Commissioner for ascertaining the same. He observed that in respect of the improvements, the second defendant was willing to pay the court-fee on the determination of the value of the improvements and directed him to pay the same. Finally, in the concluding portion of his order, the learned Subordinate Judge has ordered that the second defendant will submit a list of his claim for improvements before the Court with copy to the plaintiff within two weeks from the date of the order, that the second defendant will also deposit the Commissioners fee of Rs. 75 in court within two weeks from the date of the order, that the Commissioner will hold the enquiry as directed earlier in the commission warrant and that the second defendant will also deposit the court-fee for the improvements which he has valued at Rs, 12,500, within two weeks from the date of the order. 3. 75 in court within two weeks from the date of the order, that the Commissioner will hold the enquiry as directed earlier in the commission warrant and that the second defendant will also deposit the court-fee for the improvements which he has valued at Rs, 12,500, within two weeks from the date of the order. 3. Aggrieved by the order directing him to pay court-fee on the tentative valuation of the improvements at Rs. 12,500, the second defendant has filed the present revision. 4. Mr. Sarvabhauman, the learned counsel appearing for the petitioner, submitted that the court-fee can be paid only after the Commissioner ascertains the value of improvements effected on the properties and not on the tentative assessment made by the petitioner. 5. Mr. Sarvabhauman also stated that the present claim has been made on the basis of clause (2) of the preliminary decree and that there is no question of any counter-claim or set-off arising in this matter to direct the petitioner or to pay any court-lee. He further submitted that the petitioner is always willing and in law bound, to pay the court-fees as soon as the value of the improvements is determined by the Commissioner and that the court-fee will be paid on the value so determined by the Commissioner. 6. Mr. Raghunathan, the learned counsel appearing for the respondent plaintiff, submitted that the final decree has provided that if the plaintiff filed a petition for mesne profits against defendants 2 to 4, they can put forward in that petition the claim for improvements, if any, as set-off against the claim for mesne profits claimed by the plaintiff and that therefore, the present claim made by the petitioner is in the nature of set-off and court-fee has to be paid on the valuation given by the petitio ner himself. The learned counsel would rely on S. 8 of the Tamil Nadu Court-fees and Suits Valuation Act,” 1955, which states— “A written statement pleading a set-off or counterclaim shall be chargeable with fee in the same manner as a plaint”, and states that the petitioner is liable to pay the court-fee on the valuation given by him. 7. The learned counsel would rely on S. 8 of the Tamil Nadu Court-fees and Suits Valuation Act,” 1955, which states— “A written statement pleading a set-off or counterclaim shall be chargeable with fee in the same manner as a plaint”, and states that the petitioner is liable to pay the court-fee on the valuation given by him. 7. In Appasami Chettiar v. Sri Parvathavardhan Samastha Chawdambikai Amman temple Cuddalore , 74 L.W. 304=1961 2 M.L.J. 34=A.I.R. 1961 Mad 527 Ramachandra Iyer, J. (as he then was) distinguished the decision rendered by Jagadisan, J. in Alamelu Ammal v. Thayarammal 73 L.W. 665, and held that a claim by a defendant in a suit for possession of property for getting costs of the improvements effected by him as a condition precedent for the decree for possession, is neither a claim for set-off nor one by way of counter-claim and that S. 8 of the Madras Court-fees and Suits Valuation Act cannot apply to such claims. In the course of his judgment Ramachandra Iyer, J. (as he then was), observed— “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 what the spent for Improvements by executing the decree. It is therefore clear that S. 8 will not apply to the claim for improvements made by the petitioner” 8. Ramamurti, J. following, the abovesaid decision of Ramachandra Iyer, J. held in Subramania Chettiar v. Shanmugham , 78 L.W. 673=1966 1 M.L.J. 200 as follows:— “S. 8 is the only provision in the Madras Court-fees and Suits Valuation Act, 1955, under which a patty can be called upon to pay court-fees on a set-off or counter-claim. If the pleas raised by a defendant cannot in law amount to a plea of set-off as a counterclaim, there is no other provision in the court-fees Act under which a party can be called upon to pay court-fee on his written statement. A right to make a counter-claim is not an unqualified one but is a statutory one admissible only in cases falling under R. 6 of Or. 8, C.P. Code. While set-off is limited to money claims there is no such limitation in the case of counter-claim. A right to make a counter-claim is not an unqualified one but is a statutory one admissible only in cases falling under R. 6 of Or. 8, C.P. Code. While set-off is limited to money claims there is no such limitation in the case of counter-claim. While a set-off is essentially a ground of defence, a right of counterclaim could arise only if the defendant could have a right to bring an independent action in respect of the same. It is not really a defence to the plaintiffs claim but is an independent claim by the defendant againea the plaintiff, though in certain cases, the rules of procedure might permit the defendant to raise it in a suit by the plaintiff Every defence will not constitute a counter claim and a person whose right is not enforceable by an action cannot enforce it by a counter-claim. A plea or claim for the value of improvements by the alienee in a suit for partition and possession is not a counter-claim. Even if the defendant succeeds in his claim, it would be merely an attachment of a condition to the decree for possession. Such a claim cannot be either by way of a set off or by way of a counter-claim. Even it the claim for cost of improvements is allowed the defendant cannot set it off against the decree for possession. It cannot be a counter claim since no decree as such could be passed in favour of the defendant, but if the plaintiff succeeds a conditional decree will be passed in his favour”. 9. Uathandarama Pillai v. Arumugham Pillai 73 L.W. 665, is a decision of a Division Bench, to which I was a party, which overruled the decision in Alameluammal v. Thayarammal 73 L.W. 665, rendered by Jagadisan J., and approved the decision in Appasami Chettiar v. Sri Panathavardhana Sametha Choudambikai Amman temple, Cuddalore 74 L.W. 304=1961 1 M.L.J. 34=A.I.R. 1961 Mad. 627 and also the decision in Subramania Chettiar v. Shanmugham 78 L.W. 673#1511966 1 M.L.J. 200, and held— “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 or the suit. As pointed out by Abdul Masjid v. Abdul Rashid A.I.R. 1951 All. As pointed out by Abdul Masjid v. Abdul Rashid A.I.R. 1951 All. 201 the essence 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 plaintiffs claim. Wherein a suit for redemption of a mortgagee and for possession of the hypotheca the mortgagee claims the value for the improvements which he had effected with the mortgagors consent, the claim is dependent on the grant of the decree for 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 pessession If the suit for redemption is dismissed automatically the claim for value of improvement also is dropped. That would unmistakeably show that the claim for improvements is not a counter-claim as is juridicaliy understood”. After so observing., we have held that no court-fee was payable on the claim for improvements in such a suit. 10. As already noticed, S. 8 of the court-fees and Suits Valuation Act contemplates that a written statement pleading a set-off or counter-claim shall be chargeable with fee in the same manner as a plaint. No such set-off or counter claim was made by the second defendant in his written statement in the suit. It is only the consent preliminary decree that has given the rights to the second defendant to agitate the question of cost of improvements in the final decree proceedings, Accordingly, the second defendant came forward with I.A. 382 of 1977 for the purpose of directing the Commissioner appointed to go into the question of mesne profits, to also determine the question of improvements effected on the suit properties. The final decree which according to the lower Court states that the defendant can put forward the claim for improvements, if any, as set-off for the claim of mesne profits claimed by the plaintiff, cannot in my opinion, give any right or cause of action to the petitioner so as to demand from him court-fee before such amount is actually determined by the Commissioner. It is clear from the facts of the case, that no claim either by way of a counter-claim or a set-off was put forth in the written statement by the petitioner in order to attract the provisions of S. 8 of the Tamil Nadu court-fees and Suits Valuation Act, 1955. 11. Both as per the decisions referred to above and also as per the provisions contained in S. 8 of the Act, the facts and circumstances of the present case do not warrant the payment of court-fee by the petitioner even before the Commissioner appointed for the purpose of ascertaining the mesne profits, determines the value of improvements as per the petition in I.A. No. 382 of 1977. The petitioner herein states that he is always ready and willing to pay court-fee on the value that may be determined by the Commissioner towards the improvements made by him. The value given by the second defendant who is the petitioner herein, is only tentative and the same has to be decided and determined by the Commissioner after going into the evidence that may be let in for the purpose. Though the Sub-Court correctly understood the preliminary decree and directed the Commissioner to ascertain the cost of improvements said to have been effected on the properties is respect of the claim put forward by the second defendant, it has committed an error in directing the second defendant to deposit the court-fee for the improvements which he has valued at Rs. 12,500 within two weeks from the date of this order. Inasmuch as the petitioner is willing to deposit the court-fees as soon as the Commissioner determines the value of improvements effected on the suit properties before a final decree is passed on the same, there is no need now for the petitioner to pay the court-fee as directed by the Court below. 12. In these circumstances, the civil revision petition is allowed with the result the direction given by the Court below to the second defendant to pay court-fee is set aside and the Commissioner will go into the question of improvements as put forward by the second defendant, who is the petitioner and determine the costs of improvements. It is made clear that the court-fee will have to be paid by the petitioner on the amount that will be determined by the Commissioner before a final decree is passed. It is made clear that the court-fee will have to be paid by the petitioner on the amount that will be determined by the Commissioner before a final decree is passed. There will be no order as to costs.