A counterclaim can be maintained as a cross suit if court fees have been paid on it.

JUDGMENT :

S.K. Ray, J. - This petition by Defendants 1 and 2 is directed against the order dated 15-4-1971 passed by the Munsif, Berhampur in T.S. No. 140/67 dismissing their counter claim.

2. The opposite party had taken a mortgage of the suit house from the Petitioners. It was a mortgage by conditional sale. The mortgage document was executed on 30-31962 and the time stipulated for repayment of the loan was 5 years i.e. the time of repayment of loan was 30-3-1967, and thereafter, in default of payment of mortgage loan, the sale would become absolute. The mortgagee, opposite party filed T.S. No. 140/67 against the Defendants-Petitioners for a decree for making the sale of the suit house absolute in his favour.

3. The Petitioners filed their written statement disputing the Plaintiff's claim. They made a cross claim for a decree declaring that the mortgage stood redeemed and directing the Plaintiff-mortgagee to deliver possession of the suit house to them together with all the documents relating to the mortgaged property and for future mesne profits till delivery of possession and for costs. They also paid necessary Court fees for the said reliefs.

4. T.S. No. 140/67 was dismissed for default and the petition for restoration also was dismissed. On 17-4-1970, the munsif, while dismissing the petition for restoration of the suit, ordered further that-

So far as the counter claim is concerned, the case will proceed and Plaintiff in the original suit who is contesting the counter claim is set ex parte and the case is posted for hearing on the counter claim to 11-5-1970.

5. On 28-9-1970 the Plaintiff filed an application u/s 151, CPC contending that the counter claim of the Defendants was not maintainable in view of the dismissal of the original suit on 17-4-1970. This petition was disposed of in favour of the Plaintiff on 15-4-1971. It was held that the cross suit was not maintainable in law inasmuch as after dismissal of T.S. No. 140/67, the counter claim cannot stand independently even though Court fee has been paid. It is from this order that the Civil Revision has been preferred.

6. The counter claim of the Defendants is not covered by Order 8 Rule 6, CPC as the cross claim is not in the nature of a set off. The counter claim is substantially a cross action and since Court fee on the counter claim has been paid there is no bar for the Court to treat the counter claim as a plaint in a cross suit. Where no Court fee is paid on the counter claim, there is no obligation on the Court to call upon the Defendant to pay Court fee on the written statement pleading a counter claim, and in such a case, the Court would be justified in refusing to consider the same. But where Court fee has been paid it is proper that the cross claim should be treated as a separate suit and proceeded with even though the main suit has been dismissed, for default.

In the case of Sarangdhar Singh and Another Vs. Lakshmi Narayan Wahi their Lordships while dealing with a counter claim which was founded on a cause of action different from the claim in the main suit and that the main claim and the counter claim did not arise out of nor do they relate to the same transaction on which the Plaintiff's claim was based. In the context of such facts their Lordships said:

A counter claim is substantially a cross-action and need not be an action of the same nature as the original action or even analogous thereto. Though there is no provision in the Code of making a counter-claim, a Court has got the power to treat the counter claim as a plaint in the cross-suit and hear them together, if the counter-claim is properly stamped.

In the case of Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others while considering a contention that a cross claim not covered by Order 8 Rule 6, CPC cannot be entertained by a Civil Court as a cross suit, their lordships of the Supreme Court said:

The question has therefore to be considered on principle as to whether there is anything in