This revision petition arises out of an order passed by the learned Subordinate Judge of Salem directing the 5th defendant in the suit, O.S. No. 64 of 1963 to pay a sum of Rs. 750 as Court-fee. The plaintiff filed a suit for partition and separate possession of his share in the suit properties. Defendants 1 to 4 who are members of the family are sailing together. The first defendant had executed a sale deed in favour of the 5th defendant which is attacked on the ground that it is not an out and out sale but was executed merely to serve as security for a loan transaction. The 5th defendant, alienee, besides contending that the sale deed executed in his favour by the first defendant is a genuine transaction, claimed a sum of Rs. 10,000 by way of moneys spent by him bona fide in the improvement of the suit property, and that if the sale deed should be held to be not binding upon the plaintiff and defendants 2 to 4 the amount spent by the 5th defendant for improvements, should be held to be binding upon the members of the family. The question for decision is whether the claim of the 5th defendant is liable to payment of Court-fee as a written statement pleading a set-off or a counter-claim under section 8 of the Madras Court-fees Act of 1955, hereinafter referred to as the Act. The learned Subordinate Judge while holding that the 5th defendant is liable to pay Court-fee under section 8 of the Act has relied upon and followed a recent unreported decision of Venkatadri, J., in C.R.P. No. 1216 of 1960. Hence this revision petition.

It must be mentioned at the outset that the only provision having a bearing on the above question is section 8 of the Act. If the pleas raised by the defendant do not amount to a plea of set-off or a counter-claim there is no other provision by which he could be called upon to pay Court-fee. In other words the State should bring the case within the four corners of the section. Vide Joga Rao v. Venkata Rao1. It should also be borne in mind that a right to make a counterclaim is a statutory one and a counter claim is not admissible in a case which is admittedly not within Order 8, rule 6, Civil Procedure Code. Vide Laximidas v. Nanabhai2, for the legal incidents of a plea in the nature of a counter-claim. Unless the rules of procedure of the particular Court or Courts provide for counter-claims the defendant has no unqualified right to set up a plea which is essentially in the nature of a counter-claim.

The plea of the 5th defendant is obviously not a plea of set-off. It is only money claims that may give rise to a plea of set-off. The right to set-off is the right to plead a debt or a money claim due from the plaintiff in deduction or extinction of the plaintiff’s claim. It was unknown to Common law and the right of a set-off was later recognised by statutes and apart from the rights at law conferred by statute the defendant is also permitted to raise a plea of equitable set-off but whether it is a legal or equitable set-off such a plea could exist only where both the plaintiff’s and the defendant’s claims are for recovery of money, Vide Halsbury’s Laws of England, Simonds’ Edition, Vol. 34, page 396, paras. 673 and 674. The essential condition, namely, a suit being one for recovery of money, is not satisfied in the instant case and therefore obviously no plea of set-off can arise.

The question therefore arises whether the written statement should be construed as giving rise to a plea of counter-claim. Like set-off, a counter-claim is available to a defendant only when the rules of procedure of the Courts in which the plaintiff brings his action allow a counter-claim to be set up. In certain important aspects a plea of counter-claim is different and distinguishable from a set-off in its application and in its effect. While set-off is limited to money claims there is no such limitation in the case of counter-claims. Any claim in respect of which the defendant could bring an independent separate action ag