The non-payment of Court-fee on the plea of counter claim in the appeal resulted in the rejection of the counter claim. The defendant's account books were not maintained properly and could not be relied upon to prove the discharge.

This appeal arises from the judgment and decree of the Sub Court, Quilandy in O.S. No. 55/91.

2. The appellant was the defendant in O.S. No. 55/91 before the Sub Court of Quilandy. The respondent herein by name Narayanan Nair filed the suit for realisation of the amount due under an equitable mortgage. The facts are that the defendant borrowed Rs. 1,50,0001- from the plaintiff and on 6-6-1988 the defendant executed a pronote in favour of the plaintiff for that amount with interest. An equitable mortgage deed was also executed by depositing title deeds regarding the plaint schedule properties belonging to the defendant. The period fixed for repayment of the loan was 11 months. There was a stipulation in the mortgage deed to take possession of the plaint schedule properties by the plaintiff in case of default of repayment of the amount. After adjusting the payments made, the balance amount due was Rs. 71,400/- with interest. When that amount was demanded a cheque for Rs. 67,800/- was given to the plaintiff. But that cheque was dishonoured by the bank. Then C.C. No. 112/90 was filed before the Chief Judicial Magistrate's Court, Kozhikode. Thus the suit was filed for realisation of the balance amount by Sale of the mortgage properties shown in the plaint schedule. The defendant contended before the lower Court that even though the loan was taken, Rs. 2,03,800/was paid to the plaintiff. His contention was that the plaintiff had not entered all payments. According to the defendants the payments made are supported by his account books. Thus he made a counter claim for Rs. 40,080/- as the excess amount paid by him.

3. After framing necessary issues the trial Court examined P.W. 1 and D.W. I to D.W. 3. Exts. A 1 to A5 and B 1 to B 6 and XI were marked. After hearing both sides the lower Court considered the matter and held that the discharge pleaded was not proved. Thus the counter claim was dismissed and the suit was decreed for Rs. 24,571/- with interest at the rare of 6% per annum. Aggrieved by that judgment and decree the defendant filed this appeal.

4. Counsel for both sides were heard. According to the learned counsel appearing for the appellant the lower Court went wrong in finding that he is discharged and that no amount was payable by him to the respondent. Thus the only point arising for consideration is as to whether the

discharge pleaded is proved.

5. A preliminary objection is taken by the learned counsel appearing for the respondent showing that from the finding against the counter claim no appeal is filed. This point is urged on the fact that even though the question of counter claim was raised in the appeal memorandum no Court-fee was paid on it. Thus according to the learned counsel; as the counter claim was part of the discharge pleaded and as there is no appeal from the finding against the counter claimant, it works as res judicata against the question of discharge. Thus the question to be considered is as to whether there is any appeal from the counter claimant and whether it will amount to res judicata. The learned counsel relied on the decision reported in 1987 (1) KLR 279 : (AIR 1987 Ker 235) wherein it was held that if two suits were disposed of by a common judgment and if no appeal was filed from one suit, it would work as res judicata against the other suit appealed from. Order 8, Rule 6A of C.P.C. deals with counter claim. Thus the defendant is in a position to raise counter claim in a suit provided he paid Court-fee for the same. A counter claim is a cross suit as held in the decision reported in AIR 1988 Ker 163 Pathrose Samual v. Karumban Parameswaram. Mentioning the difference between set off and counter claim, this Court held in the said decision that the counter claim is substantially a cross suit. It is really a weapon of offence and enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. Further it