The main legal point established in the judgment is the interpretation of the original claim in cases involving a claim and a counter claim in the suit, and the power of the High Court to order transfer of appeals from the subordinate court for the ends of justice.

JUDGMENT :

I.P. Mukerji, J.

1. A very interesting point of law is involved in this appeal. Section 21(1)(a) &

(b) of the Bengal, Agra and Assam Civil Courts Act, 1887 in its application to the State of West Bengal provides as follows:-

"21.1. Appeals from Civil Judge (Senior Division) and Civil Judges (Junior Division).

(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed sixty thousand rupees, and

(b) to the High Court in any other case."

The position is like this. If the value of the original suit did not exceed Rs.1,50,000/-, an appeal from a decree passed therein would lie to the District Judge. If the original suit was valued at more than Rs.1,50,000/- an appeal would lie to the High Court.

The respondents in this appeal filed a suit in the Court of the learned Civil Judge (Senior Division), 3rd Court, Howrah (TS No. 80 of 2007) claiming a declaration regarding their right, title and interest in Premises No. 13 and 14/7, Nabin Senapati Lane, P.S- Shibpur, District - Howrah and for partition thereof. The suit was valued at Rs.1,00,051/-. The defendant appellant filed a counter claim with his written statement claiming 1/4th share mentioned in each of the properties in Schedule A, a declaration that the Deed of Gift dated 14th April, 2007 was void and so on. This counter claim was valued at Rs.10,00,000/-.

On 19th March, 2018 the suit was decreed but the counter claim was dismissed. Against this decree the appellant filed two separate appeals FAT 309 of 2018 and FAT 310 of 2018 in this Court complaining against decree of the suit and dismissal of the counter claim respectively. On 16th August, 2018 this Court dismissed FAT 309 of 2018 on the ground that this Court did not have the jurisdiction to entertain and determine an appeal from a decree in a suit where the original claim was a little over Rs.1,00,000/- but below Rs.1,50,000/-. On 27th August, 2018 the appeal was filed before the learned District Judge at Howrah and numbered as Title Appeal No.205 of 2018. Now, the appellant has filed this application for an order from this Court for transfer of that appeal before the District Judge at Howrah to this Court.

Let us take a look at the law. First let us consider Section 96 of the Code of Civil Procedure, 1908. It provides that unless otherwise stipulated an appeal from every decree passed by a Court in exercise of its original jurisdiction shall lie to the Court authorized to hear appeals. By the Bengal, Agra and Assam Civil Courts Act, 1887, if the original suit was valued at more than Rs.1,50,000/-, the appeal would lie to the High Court. Otherwise, the appeal would lie to the Court of the District Judge. Order VIII Rule 6A was inserted in the Code of Civil Procedure by Act 104 of 1976 with effect from 1st February, 1977. It provided for a counter claim. Rule 6A is in the following terms:

6A. Counter-claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

2. Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

3. The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

4. The counter-claim shall be treated as a plaint and governed by the ru