Calcutta High Court
Ajay Kumar Saraff & Anr vs Sushil Kumar Agarwal on 24 April, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
C.S. No. 43 of 2005
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Ajay Kumar Saraff & Anr.
Vs.
Sushil Kumar Agarwal
For the Plaintiff s : Mr. M.S. Tiwari, Advocate
Mr. S.K. Tiwari, Advocate
For the Defendant : Mr. Amitava Das, Advocate
Mr. Debdut Mukherjee, Advocate
Hearing concluded on : April 08, 2015
Judgment on : April 24, 2015
DEBANGSU BASAK, J.
The plaintiffs have filed the instant suit seeking specific performance of an agreement dated March 31, 1995 as modified on July 15, 2003. The agreement relates to flats lying and situate on the third and the fourth floors of Premises No. 344, Canal Street, Kolkata- 700048.
The defendant has filed a written statement and has made a counterclaim. In the counterclaim the defendant has sought relief with regard to recovery of possession of the flats on the third and the fourth floors of Premises No. 344, Canal Street, Kolkata- 700048 and also perpetual injunction relating thereto and for other reliefs.
The plaintiffs have not appeared at the hearing of the suit. The claims of the plaintiffs therefore are dismissed.
The counterclaim of the defendant is taken up for consideration. The defendant has adduced evidence through one witness. Various documents have been marked as exhibits.
Since the counterclaim of the defendant relates to recovery of possession of immovable properties lying and situate outside the Ordinary Original Civil Jurisdiction of this Court, the same is taken up for consideration.
Learned Counsel for the defendant submits that the suit of the plaintiffs is maintainable before this Court. The plaintiffs have sought for specific performance of an agreement. He refers to Order 8 Rule 6A of the Code of Civil Procedure, 1908 and submits that, a defendant can make a counterclaim against the plaintiff in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit. The defendant has made counterclaim against the plaintiff in the suit. The defendant has filed such counterclaim in terms of Order 8 Rule 6A of the Code of Civil Procedure, 1908. It is submitted that Order 8 Rule 6A has been inserted with effect from January 1, 1977.
Learned Counsel for the defendant refers to Rule 11 Chapter IX of the Original Side Rules and submits that, Rule 11 contemplates set off. Rules 12 and 12A have been inserted in Chapter IX subsequent to the amendment of the Code of Civil Procedure, 1908. It is contended on behalf of the defendant that the territorial jurisdiction of the subject matter in the counterclaim is not relevant if one reads the provisions of Order 8 Rule 6A of the Code of Civil Procedure, 1908 and Chapter IX Rules 12 and 12A of the Original Side Rules of this Court. Relying upon All India Reporter 1988 Bombay page 380 (Barthels and Luders GmbH v. M.V. Dominique) it is contended that, a counterclaim could be lodged by the defendant which directly relates to the same cause of action as that made out in the plaint.
The jurisdiction of this Court is governed by the provisions of Clause 12 of the Letters Patent, 1865. Clause 12 of the Letters Patent, 1865 is as follows:-
"12. Original jurisdiction as to suits. - And we do further ordain, that the said High Court of Judicature at Fort William in Bengal, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immoveable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the Defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Calcutta, in which the debt or damage or value of the property sued for, does not exceed One hundred rupees."
The suit premises involved in the present case is Premises No. 344, Canal Street, Kolkata- 700048. The suit property is situate outside the territorial jurisdiction of this Court. If the defendant wanted to file a suit with the reliefs as sought for in its counterclaim in respect of such immovable property, the suit would not have been maintainable before this Court.
Rule 12 of Chapter IX of the Original Side Rules states that a counterclaim shall be treated as a plaint and be governed by the rules applicable to plaints. In terms of Rule 12 of Chapter IX of the Original Side Rules treating a counterclaim to be a plaint, the relief of possession in respect of immovable property admittedly lying and situate outside the territorial jurisdiction of this Court cannot be entertained. The provisions of Order 8 Rules 6A to 6G of the Code of Civil Procedure, 1908 do not assist the defendant in sustaining a counterclaim before this Court when this Court does not have the territorial jurisdiction to entertain the counterclaim made in the written statement of the defendant.
Rule 6C Order 8 of the Code of Civil Procedure, 1908 allows a plaintiff to raise an issue that the claim raised in the counterclaim ought not to be disposed of by way of a counterclaim. In the present case, the plaintiffs have not appeared at the hearing of the suit. However, the counterclaim made in the written statement of the defendant is such that the counterclaim cannot be entertained by this Court due to lack of territorial jurisdiction of this Court.
Barthels and Luders GmbH (supra) relates to an admiralty suit. The Bombay High Court considered Order 8 Rules 6A to 6G of the Code of Civil Procedure, 1908 and found that since the counterclaim related to the same repairs as that which was the subject matter of the plaint, it was found not to be fair to drive a defendant to a separate suit in a different Court. The factual situation in the instant case is different. The defendant has sought for relief with regard to an immovable property situate admittedly outside the territorial jurisdiction of this Court in its counterclaim. The defendant could not have filed an independent suit seeking the same relief as that of the counterclaim in this Court. It would not be proper to allow the defendant to invoke the jurisdiction of this Court when this Court does not possess such jurisdiction by reason of the reliefs sought for in respect of immovable property lying and situate outside its territorial jurisdiction.
In such circumstances, no relief can be granted to the defendant in the counterclaim due to the lack of territorial jurisdiction of this Court to entertain the counterclaim of the defendant.
C.S. No. 43 of 2005 is dismissed. The counterclaim made by the defendant therein is not considered on the ground of lack of territorial jurisdiction of this Court.
C.S. No. 43 of 2005 and the counterclaim made therein are disposed of accordingly.
The department will draw up and complete the decree as expeditiously as possible.
[DEBANGSU BASAK, J.]