JUDGMENT :

Soumen Sen, J.

1. The instant appeal is arising out of an order passed by the learned Single Judge by which the counter-claim was dismissed on the ground of lack of territorial jurisdiction.

2. The essential question that has fallen for consideration in the instant appeal is whether in a suit for specific performance of an agreement to sell an immovable property, the defendant can make a counter-claim for recovery of possession of the said immovable property when the property is situated beyond the territorial jurisdiction of this Court.

3. The plaintiff has filed a suit for specific performance of an agreement. In the written statement, the defendant has denied existence of such agreement and in addition had claimed that the plaintiff is in wrongful possession of the property in question and accordingly has prayed for eviction. The plaintiff has filed addition written statement. At the trial of the suit the following issues were framed:-

"1. Was there any agreement between the parties in respect of any of the suit properties?

2. Whether the plaintiffs trespassed into the suit properties?

3. Whether the plaintiffs are interfering with the defendant's use and occupation of his portions of premises No. 344, Canel Street, Kolkata?

4. To what relief, if any, are the plaintiffs entitled?

5. To what relief, if any, is the defendant entitled?"

4. The plaintiff thereafter did not proceed with the suit and the suit was dismissed for non-prosecution. Thereafter the learned Judge took upon himself the issue of territorial jurisdiction in relation to the counter-claim and decided it against the defendant. The learned Single Judge has held that since the immovable property is situated outside the territorial limits of this Court, this Court has no jurisdiction to pass a decree in favour of the defendant for recovery of the said immovable property.

5. The findings of the learned Single Judge are:-

"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 jurisdicti