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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 State of Sikkim v. Keshab Pd. Pradhan & Ors.

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."

38. Section 16 of C.P.C relates to „suits‟ when it provides that suits to be instituted where subject matter is situate. Section 16 of C.P.C falls within Part I of C.P.C under the heading „Suits in General‟. Counter-claims falls under the First Schedule of C.P.C which contains „Orders‟. Order VIII Rule 6A of C.P.C deals with counter-claim. Under Order VIII Rule 1 of C.P.C the defendant is required to file „written statement of his defence‟ on receipt of the summons issued under Order V Rule 1 of C.P.C in the suit instituted. Under Order VIII Rule 6 of C.P.C „set-off‟ is required to be given in the written statement filed in defence of the suit. Under Order VIII Rule 6 (2) of C.P.C the written statement shall have the same effect as a „plaint‟ in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set off.