A court cannot entertain a counterclaim seeking recovery of possession of immovable property situate outside its territorial jurisdiction.

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.

2. 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.

3. The plaintiffs have not appeared at the hearing of the suit. The claims of the plaintiffs therefore are dismissed.

4. The counter-claim of the defendant is taken up for consideration.

5. The defendant has adduced evidence through one witness. Various documents have been marked as exhibits.

6. 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.

7. 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.

8. 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.

9. 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."

10. The suit premises involved in the present case is Premises No. 344, Canal Street, Kolkata-700048. The suit property is situate outside the territorial jurisdi