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2019 DIGILAW 442 (CAL)

Sushil Kumar Agarwal v. Ajay Kumar Saraff

2019-04-03

RAVI KRISHAN KAPUR, SOUMEN SEN

body2019
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. 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. 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." 6. The counter claim was not accordingly considered on the ground of lack of territorial jurisdiction. 7. Mr. Rupak Ghosh appearing on behalf of the appellant has submitted that under Order 8 Rule 6-A of the Code of Civil Procedure, the only embargo to a counter-claim is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. The counter-claim under the amended provisions may not arise out of the same transaction or must be of the same nature as the claim of the plaintiff. Under Order 8 Rule 6-A, the claim and counter-claim are to be regarded as a unified proceeding in which the Court decides both the claim and the counter-claim by a single judgment. Mr. Ghosh submits that the object of Order 8 Rule 6-A of the Code of Civil Procedure is to prevent multiplicity of proceedings and conflicting decisions. Mr. Ghosh submits that there is no restriction regarding territorial jurisdiction of the court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a unified proceeding. In this regard Mr. Ghosh relied upon the decision of the Bombay High Court in Barthels And Luders Gmbh vs M.V. "Dominique", (1988) AIR Bombay 380. 8. Mr. Ghosh submits that the view expressed by Justice Sujata Mahohar in Barthels And Luders (supra) was subsequently followed by a Coordinate Bench of the Bombay High Court in Datta Bandu Sadale And Others vs Sridhar Payagonda Patil And Ors., (1992) AIR Bombay 422 (paragraph 8):- "8. ....In Barthels and Ludera Gmbh's case (supra), Mrs. 8. Mr. Ghosh submits that the view expressed by Justice Sujata Mahohar in Barthels And Luders (supra) was subsequently followed by a Coordinate Bench of the Bombay High Court in Datta Bandu Sadale And Others vs Sridhar Payagonda Patil And Ors., (1992) AIR Bombay 422 (paragraph 8):- "8. ....In Barthels and Ludera Gmbh's case (supra), Mrs. Sujata Manohar J. has considered the scheme of the amended provisions of O. VIII Rule 6 A and 6C and has come to the conclusion that under O. VIII R. 6A the defendants may set of by way of a counter claim against the claim of the plaintiff, any right or claim in respect of the cause of action accruing to the defendants against the plaintiffs either before or after the filing of the suit but before the defendant has delivered his defence or before the time limit for delivering his defence has expired. O. VIII R. 6A reads as under : O.XVII, R.6A : (1) A defendant in a suit may, in addition to his right or 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 rules applicable to plaints. A perusal of the above provisions makes it clear that there is no requirement that the counter claim must be of the same nature as the claim of the plaintiff or that it must be arising out of the same transaction. (4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints. A perusal of the above provisions makes it clear that there is no requirement that the counter claim must be of the same nature as the claim of the plaintiff or that it must be arising out of the same transaction. In fact the words "any right or claim in respect of the cause of action accruing to the defendant against the plaintiff make it very clear that the counter-claim is not subjected to the same restriction as a set off is under O. VIII R. 6 of the Code of Civil Procedure. Shri Bagwe, the learned' Counsel did contend that even a counter claim failing under Rule 6A must be of the same nature as a set off falling under Rule 6. On a plain reading of the provisions of Rule 6A it is not possible to accept this contention of Shri Bagwe. Further the concluding words of sub-rule (1) of Rule 6A reading "whether such counter claim is in the nature of a claim for damages or not" make it abundantly clear that the counter claim may be a claim in the nature of damages or may not be so. All that the proviso to sub-rule (1) of Rule 6A says is that the counter claim should not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding the territorial jurisdiction of the Court. Thus the only ground on which the impugned order is based is clearly erroneous in law. Having regard to the scheme of the grounded provisions of O. VIII Rule 6A of the Code of Civil Procedure and in view of the decision of this Court in Barthels and Luders Gmbh's case (supra) it is not possible to uphold the reasoning of the learned Trial Judge rejecting the counter claim on the ground that it must be in respect of the same subject-matter as the claim in the suit. As stated earlier, there is neither a bar of limitation nor any other plea raised in the way of the application for amendment being granted." 9. Mr. Ghosh submits all that the Court is required to ensure is that the counter-claim does not exceed the pecuniary jurisdiction of the Court. There is no restriction regarding the territorial jurisdiction of the Court. Mr. Ghosh submits all that the Court is required to ensure is that the counter-claim does not exceed the pecuniary jurisdiction of the Court. There is no restriction regarding the territorial jurisdiction of the Court. In order to avoid multiplicity of the proceeding the legislature has introduced Order 8 Rule 6-A. The suit relates to the same property over which rival claims have been made. The plaintiff has not taken any objection with regard to the counter-claim by filing an application and cannot at this stage raise any objection with regard to the territorial jurisdiction of the Court to try and receive the suit. 10. Mr. Ghosh has referred a Single Bench decision of the Bombay High Court Lassoo & Sons V. Krishna Bahadur Nepali, (1932) AIR Bombay 617 at page 618, and submits that a counter-claim is considered to be a weapon of offence and enables defence to enforce a claim against the plaintiff as effectually in an independent action. 11. A decision of the Hon'ble Supreme Court in Jag Mohan Chawla & Anr. V. Dera Radha Swami Satsang & Ors., (1996) 4 SCC 699 has been relied upon by Mr. Ghosh to show that the counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. The defendant is now by reason of the amendment not required to file an independent suit. In order to avert multiplicity of the proceeding and needless protraction, the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. Mr. Ghosh has also referred to Vidyapoornachary Sons, T.K.V.S. vs. M.R. Krishnamachary, (1983) AIR Madras 291 for the self-same proposition. 12. These judgments were also cited to demonstrate that the right to file counter-claim is an additional right and it could be in respect of any right of claim which may not have any connection with the cause of action as pleaded by the plaintiff in its suit. 13. It is submitted that both the claim and the counter-claim are decided in a single motion and the said provision lays down that the Court shall pronounce a single judgment in the suit both on the original claim and the counter-claim. 13. It is submitted that both the claim and the counter-claim are decided in a single motion and the said provision lays down that the Court shall pronounce a single judgment in the suit both on the original claim and the counter-claim. The Code provides for a single judgment to dispose of at one stroke the suit claim as well as the counter-claim like "hitting two birds in one stone". However, Rule 6C specifically lays down a special procedure to separate the suit claim from the counter-claim, wherever the separation is called for. This provision emphasis by implication that as a general rule a suit claim and a counter-claim ought properly to be regarded as constituting a unified proceeding. 14. Mr. Ghosh submits that both the said provisions speak of an exemption and it is stated thus: should the plaintiff in a given case desire that the counter-claim filed by the defendant in answer to his suit claim be dealt with as a separate suit in itself, he ought to apply for that relief before the Trial Court and it should be done before the issues are settled which, however, has not happened in the instant case as admittedly, neither had the plaintiff filed any application under Order 8 Rule 6C for separation of the two trials nor raised any jurisdictional issue at the time of settlement of issues. Mr. Ghosh submits that the right to question territorial jurisdiction of the Court can be allowed to be raised provided the plaintiff applied under Order 8 Rule 6C before the Court and before the issues are settled. At the stage of trial, the plaintiff cannot raise the issue as to territorial jurisdiction. 15. In support of the argument that the objection as to territorial jurisdiction is one which does not go to the competence to the Court and can, therefore, be waived, Mr. Ghosh has relied upon the Apex Court judgment Hira Lal Patni v. Sri Kali Nath, (1962) 2 SCR 747 . 16. Mr. Ghosh submits that even prior to coming into force of the Code of Civil Procedure (Amendment) Act, 1976, the Court would accept a counter-claim or a cross-suit and even under such unamended provision it was open to the Court to treat a counter-claim as a plaint in a cross-suit. 17. Mr. 16. Mr. Ghosh submits that even prior to coming into force of the Code of Civil Procedure (Amendment) Act, 1976, the Court would accept a counter-claim or a cross-suit and even under such unamended provision it was open to the Court to treat a counter-claim as a plaint in a cross-suit. 17. Mr. Ghosh submits that the counter-claim has been filed within the prescribed period and it was not a belated counter-claim. Mr. Ghosh has referred to the decision of the Court of Appeal in The Cheapside reported at 1904 CA 339 for the proposition that if a plaintiff residing out of jurisdiction commences an action here, and so brings himself within the jurisdiction, he must submit to a counter-claim raised against him. The defendant's desire to avail of the counter-claim since the action is initiated here and making of a counter-claim is a proper course for the defendant to take and one, which the Court would sanction. 18. Mr. Ghosh submits that when the object of the amendment is to avoid multiplicity of proceeding and a unified procedure to be adopted for deciding both the claim and counter-claim. Unless there is inherent lack of jurisdiction, the Court is not precluded from deciding the counter-claim even if it relates to matters beyond its territorial jurisdiction. In such a situation, the Court may apply the doctrine of casus omissus. In this regard Mr. Ghosh has referred to the decision of the Hon'ble Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur v. M/s. Swaraj DEvelpers & Ors., (2003) AIR SC 2434. 19. Mr. Ghosh has concluded by referring to paragraphs 719 and 720 from the Halsbury Laws of England (3rd Edition, Vol. 34). The said paragraphs are:- "719. When counter-claim available. A counter-claim is available to a defendant only when the rules of procedure of the Court in which the plaintiff brings his action allow a counter-claim to be set up, and the more in which a counter-claim may be brought is determined by those rules. A counter-claim may be set up by or against the Crown, subject to the same limitations as are imposed in the case of a set off. A counter-claim may be set up by or against the Crown, subject to the same limitations as are imposed in the case of a set off. The Supreme Court of judicature Act, 1873, did not give, and the rules of the Supreme Court have not given, new rights of action, but have only altered the procedure to the extent of allowing a cross-action and an action to be brought and tried in the same proceedings. A person who has a right not enforceable by action, but in some other way, cannot enforce that right by a counter-claim, but is confined to the proper remedy. 720. Subject matter of counter-claim. A counterclaim can in general be brought in respect of any claim that could be the subject of an independent action. It is not confined to money claims, or to causes of action of the same nature as the original action; and, except where a person other than the plaintiff is also made a defendant to it, it need not relate to or be connected with the original subject of the cause or matter. A claim founded on tort may be opposed to one founded on contract and in an action in rem the defendant may set up a counterclaim in personam. The defendant by his counterclaim may ask for any form of relief, for example, a declaration, a vesting order or relief against forfeiture, an injunction, a receiver, specific performance, revocation of a patent an account, payment of money claim or damages." 20. Mr. Ghosh submits that the suit Court was otherwise competent to decide the issue of recovery of possession of the property in question although the property is situated outside the territorial jurisdiction of this Court by way of counter-claim in view of the plaintiff's claim in respect of the same property. 21. Per contra, Mr. Tiwary appearing on behalf of the plaintiff has submitted that the jurisdiction of this Court is governed by Clause 12 of the Letters Patent and not by any provision of the Code of Civil Procedure. It is submitted that under Clause 12 of the Letters Patent the Court can receive, try and determine suits for land or other immovable property, if such property is situated within the local limit of original jurisdiction of the High Court. It is submitted that under Clause 12 of the Letters Patent the Court can receive, try and determine suits for land or other immovable property, if such property is situated within the local limit of original jurisdiction of the High Court. Section 120 of the Code of Civil Procedure clearly specifies that Sections 16, 17 and 20 of the Code of Civil Procedure would not apply to chartered High Court. 22. Mr. Tiwary submits that since the defendant could not have originally filed the suit for eviction of the plaintiff in this Hon'ble Court as admittedly the property is situated beyond the territorial limits of this Court, the Court has no jurisdiction to pass any decree in relation to the counter-claim and the Single Judge was justified in dismissing the counter-claim on the ground of lack of territorial jurisdiction. Once the Court does not have a jurisdiction to entertain a suit for eviction, it cannot entertain a counter-claim. In this regard Mr. Tiwary has relied upon a decision of the Hon'ble Supreme Court in the cases of (i) Harshad Chimunlal Modia v. DLF Universal Ltd., (2005) 7 SCC 791 para 30]; (ii) Dharampal v. Punjab Wakf Board, (2008) 11 SCC 449; and (iii) Deva Sahayam v. Savithramma, (2005) 7 SCC 653 . 23. Mr. Tiwary has referred to Chapter IX Rule 12 of the Original Side Rules and says that a counter-claim under the said rules shall be treated as a plaint and governed by the rules applicable to the plaints. Similarly order 8 Rule 6-A (4) of the code provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints. Since the leave is necessary to initiate the original suit, the leave is also necessary in the cross-suit. In this regard he has relied upon a decision in Weld & Co. v. Sher Ahmed Ekbal Ahmed reported at 59 Indian Cases 12. 24. It is submitted that the defendant however did not take leave which the defendant could not have obtained under Clause 12 of the Letters Patent, as the suit property is situated outside the territorial limits and it is a "suit for land". This claim of the defendant cannot be tried, entertained and adjudicated by this Court. Mr. 24. It is submitted that the defendant however did not take leave which the defendant could not have obtained under Clause 12 of the Letters Patent, as the suit property is situated outside the territorial limits and it is a "suit for land". This claim of the defendant cannot be tried, entertained and adjudicated by this Court. Mr. Tiwary refers to Blacks Law Dictionary 8th Edition for the definition of counter-claim which means "the claim presented by the defendant in opposition to or deduction from the claim of the plaintiff". The counter-claim and set off cannot travel beyond scope and limit of suit. It cannot bring about something which is completely foreign to the suit. In this regard he has referred Aninda Saha and Anr. vs Amal Saha, 2001 AIR Noc 101. 25. The Chartered High Court is governed by the provisions of the Letters Patent. 26. The jurisdiction of the High Court to try, see and determine a proceeding in the Original Side is guided by Clause 12 of the Letters Patent. The said Clause 12 reads:- "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 immovable property such land or property shall be situated, or in all other cases if the cause of action shall be 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." 27. In Muttra Electric Supply Co. Ltd. Vs. In Muttra Electric Supply Co. Ltd. Vs. Gopal Saran reported at 59 CWN 419 the scope of Clause 12 has been succinctly stated by Justice P.B. Mukharji, J. a former Chief Justice of this Court and an eminent jurist in the following words:- "The basic character of the jurisdiction of this Court under clause 12 of the Letters Patent requires a more thorough investigation than it has received so far. Under this clause there is first a grant of power to this Court to receive, try and determine suits of every description. Then there is a broad classification of such suits into two divisions. The first classification is concerned with suits for land and immovable property and the second classification is with regard to other suits. Regarding the first class of suits relating to land and immovable property the limitation of jurisdiction of this Court is that such land or immovable property must be situated within its jurisdiction. Regarding the second class of suits other than those for land and immovable property the first limitation is that the cause of action must arise wholly within its jurisdiction. Then this clause deals with those cases where part of the land or part of the cause of action is outside the jurisdiction of this Court. It is here that the leave of this Court has first to be obtained before the suit can be instituted in this Court, with the one exception where the defendant at the time of the suit dwells or carries on business or personally works for gain within the jurisdiction of the Court. A close scrutiny of this clause, therefore, reveals that there are certain total and absolute jurisdictions of this Court. They are where the whole of the land or immovable property is situated within its jurisdiction when the suit is for such land or immovable property. That is also the case where the whole of the cause of action arises within the jurisdiction of the Court in suits other than suits for land and immovable property. Also that is the case in such cases where the defendant at the time of the institution of the suit dwells or caries on business or personally works for gain within the jurisdiction of this Court irrespective of the fact where the cause of action arises. Also that is the case in such cases where the defendant at the time of the institution of the suit dwells or caries on business or personally works for gain within the jurisdiction of this Court irrespective of the fact where the cause of action arises. These three are the categories of total and absolute jurisdiction of the Court under the grant of power in clause 12 of the Letters Patent. No question of the litigant having to take the leave of the Court arises in these three cases. So long as the litigant satisfies the test laid down in these three cases his right to institute the suit in this Court is absolute and unfettered. The court can neither assume nor renounce such jurisdiction. But then there is another class of jurisdiction which this Court can avail under clause 12 of the Letters Patent where the reality or the cause of action is not wholly but only partly within its jurisdiction. It is an inchoate jurisdiction which comes into action upon the Court granting the leave to institute the suit. It is the nascent jurisdiction which lies dormant in this Court and can only be put into life and operation by an act of the Court in granting leave to institute the suit. No act of the Court is necessary to assume jurisdiction in those three cases, which I have just described where the jurisdiction is total and absolute. There the Court in its inception is invested with jurisdiction. But here the Court has to acquire it. Here the jurisdiction does not depend only on the fact of the Court but also on the act of the Court." 28. The circumstances under which a suit under Clause 12 of the Letters Patent would lie has also been elaborately discussed in Chainrup Sampatram v. Punjab & Sind Bank, (2009) 1 CalHN 346 at Paragraph 24 which reads: "24. Here the jurisdiction does not depend only on the fact of the Court but also on the act of the Court." 28. The circumstances under which a suit under Clause 12 of the Letters Patent would lie has also been elaborately discussed in Chainrup Sampatram v. Punjab & Sind Bank, (2009) 1 CalHN 346 at Paragraph 24 which reads: "24. There are three limbs to Clause 12 of the Letters Patent : the first limb covers suits for land or other immovable property, which is not germane for the present purpose; the second limb speaks of the place of accrual of the cause of action in the suit, requiring no previous leave if the cause of action arises wholly within jurisdiction but requiring previous leave if only a part - however infinitesimal or significant - of the cause of action arises within jurisdiction; and, the third is the suits of the defendant at the time of commencement of the suit. A suit for land (or other immovable property) stands on a different pedestal and it is unnecessary to go into that aspect of Clause 12 here. But in a suit which is not a suit for land (or other immovable property) the plaintiff has a choice of invoking the jurisdiction of this Court on either of the two remaining limbs of Clause 12. If there is a solitary defendant in a suit which is not a suit for land (or other immovable property), the plaintiff may unquestionably institute it on the Original Side of this Court if the entirety of the cause of action arises within the original jurisdiction of the Court and irrespective of where the defendant may dwell or carry on business or personally work for gain. If there is a solitary defendant in a suit which is not a suit for land (or other immovable property), the plaintiff may institute it on the original side of this Court if a part of the cause of action arises within the original jurisdiction of this Court irrespective of where the defendant may dwell or carry on business or personally work for gain, subject, however, to obtaining prior leave under Clause 12 to institute the suit. It there is a solitary defendant in a suit which is not a suit for land (or other immovable property), the plaintiff may institute it on the original side of this Court if the defendant, at the time of the commencement of the suit, dwells or carries on business or personally works for gain within the original jurisdiction of this Court, irrespective of where the cause of action may be arisen. The second and third limbs of Clause 12 that cover suits other than suits for land (or other immovable property) are, in a sense, mutually exclusive; in that the plaintiff has the choice of either founding territorial jurisdiction on suits of cause of action or on location of the defendant at the time of commencement of the suit. In a suit other than a suit for land (or other immovable property) where the plaintiff sues more than one defendant, either of the last two limbs of Clause 12 of the Letters Patent has to be satisfied in respect of each defendant in the suit for the action to be launched on the Original Side of this Court." 29. If the subject matter of the suit is an immovable property, in terms of the provisions of sections 16 to 20 of the Code and the similar provisions contained in Clause 12 of the Letters Patent as applicable in this court, the appropriate court would be the court within whose jurisdiction the immovable property is wholly or in part situate. 30. The Court either returns the plaint for presentation to an appropriate court or dismiss the suit for want of jurisdiction when the property is situated outside the jurisdiction of this Court. But in view of the fact that the property outside the jurisdiction of this Court, the Court, over a period of time has evolved of jurisprudence of suit for land meaning thereby if it is found that the dominant purpose of the suit is for determination of any right, title or interest of any immovable property outside the jurisdiction of the High Court and merely because some of the parties are within the jurisdiction of this Court or may have entered into some agreement relating and/or concerning of such immovable property the Court will refuse to exercise its jurisdiction under Clause 12 of the letters patent unless it is a suit for specific performance without a claim for possession. Granting or refusing leave is a discretion of the Court. A suit for specific performance of an agreement entered within the jurisdiction without a prayer for possession is maintainable even though the property is situated outside within the jurisdiction of the Court on the ground that there is no requirement to decide the right, title and interest of the parties to the suit and the plaintiff is merely seeking to enforce an agreement for sale and not possession. See. Adcon Electronics Pvt. Ltd. Vs. Daulat and Anr., (2001) 7 SCC 698 . 31. The jurisdiction of any court has three limbs: i) Territorial, ii) Pecuniary, and iii) Subject Matter. It has been the consistent view of all the courts that while pecuniary or territorial jurisdiction can be waived the parties by consent cannot confer a jurisdiction upon a court which does not have a jurisdiction over the subject matter of the dispute. 32. Halsbury's Laws of England, 4th Edition, (Re-issue), Vol.10 summarizes the concept of jurisdiction in Paragraph 314 at Page 132. The said Paragraph reads:- "314. Meaning of 'jurisdiction'. By 'jurisdiction' is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of the authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal, including an arbitrator, depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist, the correctness of its decision may be inquired into by means of proceedings for judicial review. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given." (emphasis added) 33. In American Jurisprudence, Volume 32A, paragraph 581, it is said that: "Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a court is that of announcing the fact and dismissing the cause." 34. In Indian Farmers Fertilizer Co-Operative Limited vs. Bhadra Products, (2018) 2 SCC 534 , it is noted that: "21. That "jurisdiction" is a coat of many colours, and that the said word displays a certain colour depending upon the context in which it is mentioned, is well-settled. In the classic sense, in Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 at 99, "jurisdiction" is stated to be: In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand, 1905 (33) ILR(Cal) 68 it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it: in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', the authority by which the judicial officer take cognizance of and 'decide causes'; 'the authority to hear and decide a legal controversy', 'the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;' 'the power to hear, determine and pronounce judgment on the issues before the Court'; 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect'; 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution'."(emphasis added) 35. It is trite law that the court having no jurisdiction cannot grant a relief in respect of the subject matter of the dispute since such a decision would be forum non-Judice. In Dhurandhar Prasad Singh vs Jai Prakash University And Ors., (2001) AIR SC 2552 the relative scope of the expression void and voidable have been discussed in paragraphs 16 and 21 of the said report. In paragraph 22 the law was summarized the said paragraph reads:- "22. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable." (emphasis added) 36. The expressions "void" decree and "illegal, incorrect or irregular" decree came up for consideration in Balvant N. Viswamitra & Ors. Vs. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable." (emphasis added) 36. The expressions "void" decree and "illegal, incorrect or irregular" decree came up for consideration in Balvant N. Viswamitra & Ors. Vs. Yadav Sadashiv Mule & Ors., (2004) 8 SCC 706 . The Hon'ble Supreme Court after considering the earlier decisions, summarized the law in Paragraphs 9, 14 and 15, which read:- "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. 14. Suffice it to say that recently a bench of two-Judges of this Court has considered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, (2004) 1 SCC 287 . One of us (R.C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated: "6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. (emphasis added) 7. Two things must be clearly borne in mind. Firstly, 'the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a 'a nullity' and 'void' but these terms have not absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.' (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. 'The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction in punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.' (ibid., p. 312) 8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the common of the decree. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the common of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." (emphasis supplied) 15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings." (emphasis added) 37. In the instant case there is no dispute that the plaintiff did not make any application under Order 8 Rule 6C of the Code of Civil Procedure. However, the fact remains that the subject matter of the counter-claim namely the recovery of the immovable property is situated outside the jurisdiction of this Court. The Court could not have entertained the suit in its original side under Clause 12 of the Letters Patent. 38. A fairly recent decision of the Hon'ble Supreme Court in Sumer Builders Private Limited vs Narendra Gorani, (2016) 2 SCC 582 has considered Clause 12 of the Letters Patent of the Bombay High Court and the expression 'suits for land'. In the said judgment, it has been held that suits involving controversy over possession of land would be a 'suit for land'. The relevant discussion are in paragraph 11 to 18 of the said report which read:- "11. To appreciate the controversy, it is appropriate to refer to Clause 12 of the Letters Patent, which reads as follows - 12. In the said judgment, it has been held that suits involving controversy over possession of land would be a 'suit for land'. The relevant discussion are in paragraph 11 to 18 of the said report which read:- "11. To appreciate the controversy, it is appropriate to refer to Clause 12 of the Letters Patent, which reads as follows - 12. Original jurisdiction as to suits - And we do further ordain that the said High Court of Judicature at Bombay, 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 immovable 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 Bombay, in which the debt or damage, or value of property sued for does not exceed one hundred rupees." "12. The said clause fell for interpretation in Adcon Electronics (supra), wherein the Court stated thus:- 9. Thus, it is clear that under clause 12 of the Letters Patent, the High Court in exercise of its ordinary original jurisdiction will have power to receive, try and determine: (1) suits for land or other immovable property if such property is situated within the local limits of original jurisdiction of the High Court; or (2) all other cases (a) if the cause of action has arisen wholly within the local limits of the ordinary original jurisdiction of the High Court; (b) if prior leave of the Court has been obtained and the cause of action has arisen in part within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits." "13. Be it noted under Section 120 of the Code of Civil Procedure, 1908 (for short, "CPC"), Sections 16, 17 and 20 are not applicable to the High Court in original civil jurisdiction. Thus, as far as the Bombay High Court is concerned, it is Clause 12 of the Letters Patent that would govern the controversy." "14. In Adcon Electronics (supra), the two-Judge Bench referred to the divergence of opinion in Moolji Jaitha (supra), the Full Bench decision of the High Court of Madras in P.M.A. Velliappa Chettiar v. Saha Govinda Doss, Division Bench judgment of Calcutta High Court in Debendra Nath Chowdhury v. Southern Bank Ltd. and ruled thus:- 15. From the above discussion it follows that a "suit for land" is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a "suit for land" or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a "suit for land". We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case." 15. It will be appropriate to reproduce what Justice Mahajan had observed in Moolji Jaitha (supra):- "If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case." 15. It will be appropriate to reproduce what Justice Mahajan had observed in Moolji Jaitha (supra):- "If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression." He had further added:- "In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a suit for land; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land." 16. Recently, in Excel Dealcomm Pvt. Ltd. v. Asset Reconstruction Co. (India) Ltd., the controversy had arisen from the High Court of Calcutta. The two-Judge Bench addressed to the issue "what is the suit for land", and observed as under:- "13. A suit for land is a suit in which the relief claimed relates to the title or delivery of possession of land or immovable property [see [pic]Adcon Electronics (P) Ltd. v. Daulat]. Further, it is an established rule that to determine whether it is a suit for land, the court will look into barely the plaint and no other evidence (Indian Mineral & Chemicals Co. v. Deutsche Bank). Further, it is an established rule that to determine whether it is a suit for land, the court will look into barely the plaint and no other evidence (Indian Mineral & Chemicals Co. v. Deutsche Bank). If by the averments in the plaint and prayers therein, it appears that the suit is one for land, it shall be so held and if it does not so appear, then the suit shall continue under leave granted under Clause 12." 17. Be it noted, in the said case suit was filed for specific performance of the agreement which contemplated sale of property as has been described under Section 13 of the SARFAESI Act, 2002. The issue that arose before the Court is as follows:- "In the present case, a suit was filed for the specific performance of the agreement which contemplated the sale of property, as has been described in Para 1 under Section 13 of the SARFAESI Act in terms of the Rules. The question with respect to Clause 12 of the Letters Patent in the present case is that whether the present suit is suit for land." 18. The Court referred to the relief clause, the authority in Adcon Electronics (supra) and came to hold that: (Excel Dealcomm case) "16. It may be noted that the sale certificate sought under the prayer requires the delivery of possession of the suit property. Thus, we find that the prayer for delivery of possession was an implicit one in the present case. The prayer as sought in the plaint could not have been granted without the delivery of possession of the suit property. Thus, in view of this we find that Adcon Electronics (supra) would not apply as there was a prayer for delivery of possession in the present case. Therefore, we hold that the present suit was indeed a suit for land." Being of this view, it concurred with the opinion expressed by the High Court of Calcutta that it did not have the territorial jurisdiction."(emphasis added) 39. In Harshad Chimunlal (Supra) although the jurisdiction of the Chartered High Court was not considered but the relative scope of Section 15 to 20 of the Code of Civil Procedure was discussed. In Harshad Chimunlal (Supra) although the jurisdiction of the Chartered High Court was not considered but the relative scope of Section 15 to 20 of the Code of Civil Procedure was discussed. It is stated that Section 16 of the Code of Civil procedure recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A Court, within whose territorial jurisdiction the property is not situate, has no power to deal and decide the rights or interests in such property. A court has no jurisdiction over a dispute in which it cannot given an effective judgment. 40. Thereafter the judgment proceeds to hold that the jurisdiction of a court may be classified into several categories. The important categories are i) territorial or local jurisdiction ii) pecuniary jurisdiction and iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues, The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. 41. The objection to the jurisdiction of the Calcutta High Court relates to subject matter of the dispute and is one which goes to the jurisdiction and competence of the Court to decide the dispute. The suit for recovery of the immovable property could not have been filed in this Court as the subject matter of the suit, namely, the immovable property is admittedly situated outside the ordinary original jurisdiction of this Court. 42. On such consideration the appeal fails. It is made clear that we have not gone into the merits of the dispute. The suit for recovery of the immovable property could not have been filed in this Court as the subject matter of the suit, namely, the immovable property is admittedly situated outside the ordinary original jurisdiction of this Court. 42. On such consideration the appeal fails. It is made clear that we have not gone into the merits of the dispute. The appellant is permitted to pursue its counter claim before the Civil Court having jurisdiction over the subject matter of the dispute and would be entitled to the benefit of Section 14 of the Limitation Act if presented within four weeks from date. 43. The appeal is dismissed with the aforesaid liberty. However there shall be no order as to costs. 44. Urgent photostat certified copy of this order, if applied for, be given to the parties on the usual undertakings. Ravi Krishan Kapur, J. : 1. I have had the advantage of reading the judgment prepared by my esteemed brother and for the reasons set out in his judgment, I am in complete agreement with the conclusion arrived at by him. However, I would just like to add a few words to the reasons so ably stated in his judgment. 2. "Jurisdiction" has been most aptly explained in the seminal decision of by the Full Bench of the Calcutta High Court in Hirday Nath Roy vs. Ram Chandra Barna Sarma, (1921) AIR Calcutta 34 where Sir Ashutosh Mookerjee C.J. held that: "Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it: in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', the authority by which the judicial officer take cognizance of and 'decide causes'; 'the authority to hear and decide a legal controversy', 'the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;' 'the power to hear, determine and pronounce judgment on the issues before the Court'; 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect'; 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution'." (emphasis supplied). This locus classicus has been followed by all Courts in India and has the imprimatur of the Hon'ble Supreme Court in Official Trustee, West Bengal and Others vs. Sachindra Nath Chatterjee and Another, (1969) AIR SC 823. 3. Order 8 Rule 6A of the Code of Civil Procedure 1908 inter alia provides as follows: 6-A 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 rules applicable to plaints. 4. (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 rules applicable to plaints. 4. There is a provision relating to counterclaims also in the Original Side Rules where Chapter IX Rule 12 provides that; 12. A defendant making a counter claim under Order 8 of the Civil Procedure Code shall give notice of the filing of his written statement making a counter claim to the plaintiff and to any other defendant who has entered appearance within a week from the date of entering such appearance. Such counter claim shall be treated as a plaint and be governed by the rules applicable to plaints. 5. From a bare perusal of the reliefs prayed for in the counterclaim filed by the defendant, it will be evident that in the counterclaim the defendant has sought reliefs pertaining to recovery of possession of flats lying and situated on the 3rd and 4th floors of premises no.344, Canal Street, Kolkata-700048 and also consequential injunctions in respect thereof. It is an admitted position that the properties of which the defendant has claimed possession are situated outside the jurisdiction of the Original Side jurisdiction of this Court. To the argument that a counterclaim for land outside the jurisdiction of this Court can be allowed, Mr. Rupak Ghosh, Advocate assisted by Debdut Mukherjee, Advocate has contended that the only embargo under Order 8 Rule 6A-6G is in respect of pecuniary jurisdiction and not in respect of territorial jurisdiction. 6. In order to invoke the jurisdiction of this Court in exercise of its Original Civil Jurisdiction, it is undoubtedly the case that jurisdiction is attracted on the basis of Clause 12 of the Letters Patent, 1865. In the case of the suit being a suit for land or other immovable property which is the case here, if the suit property is situated beyond the territories of the Original Side of the High Court this Court does not have any jurisdiction to entertain, try or determine a suit. This is because the jurisdiction in respect of suits which are instituted pertaining to land depends on where the subject matter is situated or on the situs of the land. This is because the jurisdiction in respect of suits which are instituted pertaining to land depends on where the subject matter is situated or on the situs of the land. Admittedly, in the instant case, the suit property is located outside the original jurisdiction of this Court. Thus, if a party had come to file an independent suit he could not have filed a suit in respect of the reliefs prayed for in the counterclaim within the original jurisdiction of this Court. 7. As has been spelt out in Order 8 Rule 6 A (4), a counterclaim is to be treated as a plaint and governed by the rules applicable to plaints. This would mean that a counterclaim may be set up only in respect of those claims as to which the party could bring an independent action in the Court in which the counterclaim is brought (Halsbury Laws of England, 2nd Edition, Volume 29 Para 503). There is a long list of cases in support of this proposition that goes as far back as 1879. In Williams Brothers vs. Aguius Ltd., (1914) AC 510, Lord Danedin has stated this proposition in the following manner (at page 522) "but this at least is certain that no counterclaim can be given effect to as a defence unless the Court dealing with original action has also jurisdiction in the matter of the counterclaim." Support for this proposition is also to be found in the judgment of the Privy Council reported in Bow, Me. Laahlan & Co. Vs. Ship Gamosun, (1909) AC 597 where it was held that "A counterclaim is substantially a cross action, not merely a defence to the plaintiff's claim. It must be of such a nature that a Court would have jurisdiction to entertain it as a separate action. As has been held in Vasudevandra Saraswathi Swami vs. Sridhara Sivarama Moorthy, (1949) AIR Madras 630, it has been held that "the fact that the plaintiff has brought a suit within the jurisdiction of this Hon'ble Court does not mean that the defendant's rights become limitless, e.g. to put forward a claim which nobody else could put forward as a plaintiff and for which there is no justification in the Letters Patent or in the Civil Procedure Code. A person who comes as a plaintiff generally gives the Court jurisdiction, that is not to say, that in every case does it enable the defendant to bring proceedings which he could not have otherwise brought before the Court." 8. A counterclaim may be set up only in respect of a claim as to which the party putting it forward could bring an independent action thereon in the Court in which the original suit is brought. In other words, no counterclaim can be given effect to as a defence unless the Court dealing with the original action has also jurisdiction in the matter of the counterclaim if the counterclaim had been made the subject matter of an independent suit brought in that very Court. 9. In Vithaldas Vs. Hyderabad Spinning & Weaving Co. Ltd., (1923) AIR Bombay 24 it was held that "If the defendants were to file a separate suit on the subject matter of their claim in that suit this Court would have no jurisdiction to try it, as the plaintiff resided outside jurisdiction and the whole cause of action arose outside jurisdiction." 10. Thus, it is clear from a reading of Order 8 Rule 6A of the Code with Chapter IX Rule 12 of the Original Side Rules that no counterclaim can be entertained unless the Court dealing with the original action has also jurisdiction both territorial and pecuniary in the matter of the counterclaim. 11. If this were not the case, then it would lead to an absurd result where a plaintiff would be unable to file a suit in a Court which would lack territorial jurisdiction whether because no part of the cause of action had arisen within the territorial limits or where the situs of the land was situated outside the jurisdiction of the Court. However, if the submission of Mr. Ghosh were to be accepted, a defendant would be permitted to bring such an action by way of filing a counterclaim. 12. I am, therefore, of the view that there is an inherent lack of jurisdiction in this Court in entertaining the counterclaim. The reliefs prayed for by the defendant in the counterclaim pertain to possession of a property outside the jurisdiction of this Court. 12. I am, therefore, of the view that there is an inherent lack of jurisdiction in this Court in entertaining the counterclaim. The reliefs prayed for by the defendant in the counterclaim pertain to possession of a property outside the jurisdiction of this Court. This Court in its Original Side has no inherent power to decide on the right, title or interest in respect of a property lying outside the local jurisdiction of this Hon'ble Court. 13. In the circumstances, I concur with my learned brother that this appeal should be dismissed.