UTHANDARAMA PILLAI Vs. M ARUMUGHAM PILLAI

JUDGEMENT

(1.) THIS civil revision petition comes before us on a reference by one of us, on the ground that there was conflict of opinion on the question whether court-fee would be payable on the value of improvements effected by consent, which is claimed by the mortgagee in a suit for redemption and possession.

(2.) ALAMELU Ammal v. Thayarammal. held that such a claim for improvements was a counterclaim and would attract court-fee under Section 8 of the Madras Court-fees and Suits Valuation Act. Apparswami Chettiar v. Parvathavardhani Sametha Ramanatheeswara Choudambigai Amman Temple, cuddalore, differed from that view and though that such a claim would not be a counter-claim and no court-fee would be payable, Subramanian chettiar v. Shanmugham. shared the view of. 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 for the suit. As pointed out by Abdul majid v. Abdul Rashid, the essense 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 plaintiff's claim. where in a suit for redemption of a mortgage and for possession of the hypotheca the mortgagee claims the value for the improvements which he had effected with the mortgagor's consent, the claim is dependent on the grant of the decree for a 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 possession. If the suit for redemption is dismissed automatically the claim for value of improvements also dropped. That would unmistakably show that the claim for improvements is not a counter-claim as is juridically understood.

(3.) IT follows that does not represent the correct view. No court-fee is payable on the claim for improvements in such a suit. The Civil Revision petition is allowed, but with no costs.