This is a Civil Revision petition against the finding of the Munsiff, Sadar on pre­liminary issues 3 and 4 in the Suit wherein he held that the Court-fees paid by the respondent for his counter-claim in M. S. No. 8 of 1957 in the Subordinate Judge's Court can be validly used as Court-fee for his plaint in M. S. No. 124 of 1957 on the file of the Munsiff, Sadar.

(2) The petitioner herein filed M. S. No-. 8 of 1957 against the respondent and his son in the Court of Subordinate Judge, Agartala claiming a sum of Rs. 2100/- on the basis of an oral loan taken by them from him. The respondent herein who was the first defendant in the Suit denied the claim in his written statement and at the same time he made a counter-claim against the petitioner of a sum of Rs. 1400/- on the basis of an oral loan.

He also paid the necessary Court-fee for the counter-claim. The petitioner denied the counter­claim. Issues were also framed in the suit regarding the truth of the petitioner's claim and regarding the truth of the counter-claim. The learned Sub­ordinate Judge appears to have taken evidence on the claim of the petitioner as well as the counter­claim made by the respondent.

But in dismissing the Suit filed by the peti­tioner, the Subordinate Judge stated in his judgment that the counter-claim cannot be asserted in that Suit by the respondent alone against toe peti­tioner as the second defendant in that Suit had nothing to do with the said counter-claim. He, therefore held that die counter-claim was not main­tainable in the said proceeding and was enforceable only by a. separate Suit. He did not however direct that the plaint relating to the counter-claim should be returned for presentation to the proper Court, The counter-claim being only for Rs. 1400/- had to be presented in the Munsiff's Court.

(3) The respondent at that stage had two courses open. He could have taken the matter in appeal or revision and insisted that the counter-claim must be disposed of in that proceeding itself or he could have taken back the written statement in which he had made the counter-claim and presented it in the proper Court. He chose the latter course and appli­ed to the Subordinate Judge for return of his written statement along with the Court-fee paid thereon and he presented the said written statement and the Court-fee paid thereon along with his plaint in the present Suit.

(4) The learned Munsiff before whom the peti­tioner contended that the Subordinate Judge had finally heard and disposed of the counter-claim and thus used the Court-fee paid on the counter­claim and that the Subordinate Judge cannot, there­fore, return the written statement and Court-fee for presentation and use in another Suit, rejected the said plea and held that the Court-fee has not been exhausted before the Subordinate Judge and could be used in the second Suit instituted on the counter­claim.

(5) It was contended before me by the learned Advocate for the petitioner that the Subordinate Judge had taken evidence on the counter-claim and had held that it was not maintainable in that pro­ceeding but only by a separate Suit, that this was a finding regarding the maintainability of the counter­claim and hence the Court-fee paid on die counter­claim must be treated as having been used up and that if the respondent wanted to file a separate Suit regarding his counter-claim he ought to have paid separate Court-fee instead of using the same Court-fee. I am unable to understand this plea at all.

A counter-claim when raised in the written statement is as good as a separate Suit and it is usually allowed to be raised by the defendant to the suit itself in order to avoid multiplicity of pro­ceedings. The Court may proceed to decide the counter-claim in the same Suit if Court-fee has been paid on it or the Court may refuse to go into the counter-claim in that Suit and direct the party to present it in the proper Court for disposal. We are not concerned in this case as to whether the Sub­ordinate Judge

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