Full Judgment
Nawal Kishore, J.
1. This is a revision by the defts. against the order of the learned Addl. Sub-Judge, calling upon them to pay court-fees on the sum of Rs. 8,650/8/6 claimed on account of repairs & improvements carried out by them in the house in dispute.
2. It seems from the facts alleged on the record that in Smt. 1981, the house in dispute had been mortgaged by the fathers of pltfs., defts. 7 & 10 to Allabanda, father of defts. 14 & 15 for Rs. 3051/. In Smt. 1998, the house was sold by the pltfs, mother as guardian for the plffs. who were minors at the time & by defts. 5, 6 and 7 & guardian of deft. 10 to defts. 1 to 4, the petitioners in this Ct., & out of the sale proceeds, the mortgage amount was paid out. In Smt. 2002, pltfs. Abdul Zabarkhan & Abdul Shakoor Khan filed the present suit for possession of one-third share of the house in dispute by cancellation of the sale on the ground that their mother as de facto guardian was not authorized to dispose it of, & therefore, the sale as regards their share was void. They offered to pay to defts. 1 to 4, one-third share out of the amount paid by them to the mortgagee. Defts. 1 to 4 pleaded that they had spent Rs. 8650/8/6 on repairs & improvements &, therefore, a decree for possession should be passed, if at all, subject to the payment of this amount. It was urged by the pltfs. that the defts.' plea could not be entertained until court-fees was paid on the amount claimed by them on account of repairs & improvements. The learned Additional Sub-Judge came to the conclusion after hearing arguments that it was a counter claim for a specific sum & that, therefore, could not be entertained without payment of court-fees.
3. Learned counsel for the petitioners urged that the view taken by the learned Sub-Judge that the claim put forward by the defts. was in the nature of a counter-claim was not correct in law. He has cited Abdul Majid v. Abdul Rashid, AIR (37) 1950 All. 201 & relied on the observations to the effect that the essence of a counterclaim was that the deft, should have a cause of action against the pltf. & the counter-claim should be in the nature of a cross action & not merely a defence to the pltfs'. claim. There is a reference in this judgment to certain other authorities where it was held that a counter claim must be of such a nature that the court could have jurisdiction to entertain it as a separate action. It was conceded in that case by the learned counsel appearing on behalf of the pltf. respondent that it could not be urged that the deft, had a cause of action against the pltf. or that a separate action could be maintained on the basis thereof. The position in this revision is substantially identical. The learned counsel for the pltfs. respondents has practically conceded that the defts. could not file a separate suit on the basis of this claim & could put it forward as a defence. I respectfully agree with the observations made in AIR (37) 1950 All. 201 & therefore hold that the claim put forward by the defts. could be advanced only as a defence to the suit & that a separate suit was not competent. In the circumstances, the view taken by the learned Additional Sub-Judge is incorrect & the claim for the recovery of the amount alleged to have been spent by the defts. on repairs & improvements must be entertained without payment of court-fees. The revision succeeds & is hereby accepted & the order passed by the learned Additional Sub-Judge set aside. Costs will be costs in the cause.