Sharmistha Biswas vs Nanigopal Deb

Sudip Ahluwalia, J.—This Revision is directed against the Order passed by the Ld. Civil Judge (Junior Division), 1st Court at Alipore on "18.09.2010" in Title Suit No. 110 of 2002 of the said Court, although in the heading of the application the petitioner has wrongly mentioned an Order dated "22.04.2009," in place of the one actually challenged. The Opposite Parties had filed the Suit seeking Recovery of possession in respect of the disputed suit premises by evicting the original defendant (since deceased), who was the father and predecessor-in-interest of the present petitioner, and who was alleged to be a licensee therein under the plaintiffs.

The petitioner contested the suit by filing her Written Statement and Counter-claim against the Opposite parties, in which she prayed for declaration of her Right, Title and Interest in the suit property along with certain other declarations, and a decree for Specific Performance of the Contract for Sale, along with permanent injunction and other consequential reliefs. It transpires from the Certified Copies of the Orders passed by the Ld. trial Court from 22.04.2009 onwards that the petitioner after entering appearance in the Suit originally filed her Written Statement with Counter-claim along with a Court Fees of Rs. 3,600/- on 03.03.10. However the Ld. Court below got the Valuation of the Counter-claim to be checked and determined that the Court Fees payable thereupon was Rs. 11,930/-, and therefore directed the petitioner to file the Deficit Court fees amounting to Rs. 8,330/- which direction was complied with by her on 16.06.2010.

Subsequently on 08.07.2010 the petitioner prayed for return of the Plaint and Counter-claim to the parties on the grounds stated therein. But the Ld. trial Court vide the impugned Order passed on 18.09.2010 rejected the application by holding that while the original Plaint valued at Rs. 15,000/- was within its pecuniary jurisdiction, and consequently entertainable by the Court, yet the Counter-claim exceeded its jurisdiction, being valued at Rs. 1,74,000/-, and therefore could not be accepted. The petitioner is aggrieved with the above decision of the Court, particularly in view of the fact that she had deposited the Deficit Court Fees in compliance of the Court''s own direction, and so the subsequent non-acceptance of her Counter-claim was illegal and improper.

A number of Citations have been placed before this Court on behalf of the petitioner in order to support her assertion that the Plaint as well as the Counter-claim filed against the same should have been entertained and decided by the original filing Court itself.

The first decision happens to be in the case of Mackinnon Mackenzie and Company Pvt. Ltd. Vs. Anil Kumar Sen and Another, in which a Division Bench of this Court had observed-

"The right to set-off has been granted by R. 6 of O. 8 of the Code of Civil Procedure. Parties to a proceeding have a right to set-off their claims against each other in a proceeding independently of the provisions of Orders, Rule 6, where cross demands arise out of the same transaction or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant driven to a cross-suit. Courts in this country as well as in England have allowed a plea of set-off in such circumstances in respect of unascertained sums. The principle is well recognized (see AIR 1914 PC 153 at P. 155)."

In the Privy Council decision referred in the above Citation being Sheo Narain Singh & Ors. v. Bishunath Singh & Anr. AIR 1914 P.C. 153) it was held--

"....At a subsequent stage when the case came back to the appellate Court after the remand it had ordered for certain enquiries, the learned Judges who heard the appeal modified the view previously expressed, and considered that having regard to the circumstances of the case, the Court would be justified in applying the principle of equitable setoff to the defendants'' claim. Their Lordships concur generally with the reasons given by the learned Judges for coming to this conclusion."

The ratio of the Privy Council decision which was reaffirmed in the Calcutta decision of 1975 is simple and straightforward to the effect that the defendant in any suit is entitled to the relief of an equitable set-off in the very suit filed against him and that he need not file a separate suit for enforcing his admissible relief against the plaintiff. In fact, the Calcutta decision of 1975 has even quoted the specific provision of Set-off Or. VIII R. 6 available to a defendant which may be stated in his written statement. But by virtue of the 1976 amendment and consequent insertion of R. 6A which further entitles a defendant to seek a Counter-claim against the plaintiff, even the Statutory position now is unambiguous that the relief claimed by a defendant can be sought for through his Counter-claim in the very proceeding instituted against him. Further, according to Sub-Rule (2). such Counter-claim has the effect as a cross suit in order to enable the Court to pronounce final Judgment in the same suit both on the Original as well as the Counter claim.

It is for this reason that the petitioner insists that her Counter-claim ought to have been accepted since she was entitled to seek the same in the very suit filed against her. But the ticklish problem arising here is the Court lacking in pecuniary jurisdiction to the tune of Rs. 1,74,000/-, at which her Counter-claim was valued. It therefore refused acceptance of the same.

Her Ld. Advocate thereafter cited another Calcutta Division Bench passed in Dr. Amitabha Datta Vs. Kiran Rasaily, . In that case the original suit filed by the plaintiff/appellant for eviction was valued at Rs. 31,000/-, while the Counter-claim coming forth from the defendant''s side was Rs. 5,50,000/-. After disposal of both the Suit its well as Counter-claim by the-trial Court, the question arose in which Forum the Appeals arising therefrom were entertainable.

The observation of the Division Bench made in this regard in Para 11 of the Judgment happens to be-

"11. Therefore, the forum of appeal must be determined according to the value of the original suit in which the decree was made. For determination of the forum of the appeal the valuation of the counter claim is not relevant. The forum of the appeal shall be determined according to the value of the original suit. In the instant case, the value of the original suit was Rs. 31,000/- (Rupees thirty-one thousand) only. Therefore, the appeal lies to the learned District Judge and not to this Court."

Relying on the above decision, Ld. Advocate for the petitioner stressed before this Court that similarly her own Counter-claim would be entertainable in the very same Forum in which the Suit against her was pending. But she would appear to have lost side of a subtle distinction between the facts and circumstances of the present case, and the observation of the Division Bench in re Amitabha Datta (supra). That distinction happens to be that the observation was in relation to admissibility of an appeal preferred against the Final decision of the trial Court in relation of the original Suit as well as Counter-claim. It was held that the Appellate Forum in such a situation must be determined according to the value of the original Suit. Now it so happens that the Suit itself had been valued at Rs. 31,000/- and was therefore filed in the Court of the Ld. Civil Judge (Senior Division) at Siliguri, District Darjeeling, since a Civil Judge of the Junior Division does not have the pecuniary jurisdiction to entertain claims valued above Rs. 30,000/-. On the other hand the Court of the Civil Judge (Senior Division) is of unlimited pecuniary jurisdiction on account of which it was able to entertain not only the original Suit, but also the Counter-claim valued at Rs. 5,50,000/- and therefore decided both of them together. It was only in relation to the admissibility of the appeal arising from such decree that the Division Bench observed that it could be filed in accordance with the valuation of the original Suit, and not that of the Counter-claim. This observation by no means can be interpreted to mean that the competency to try a matter exceeding the pecuniary jurisdiction of the trial Court can be artificially conferred or legitimized. It is necessary to remember the specific proviso to Or. VIA R. 1 of the C.P. Code in relation to a defendant''s Counter-claim "that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court." The ''Court'' in this specific proviso refers to the trial Court itself, and not the Appellate Forum, on account of which the decision in re Amitabha Datta (supra) does not come to the petitioner''s aid.

As such, the trial Court''s refusal to accept the petitioner''s Counter-claim in the impugned Order was not entirely unjustified since it did not have pecuniary jurisdiction to entertain the same. Nevertheless in such eventuality it should not have also directed to the petitioner to pay off the Deficit Court-fees on her Counter-claim when it was not possessed of the proper jurisdiction. To that extent the grievance of the petitioner is certainly legitimate.

In such circumstances it is held that even though the impugned Order dated 08.09.2010 passed by the Ld. trial Court is technically correct, but still the ends of justice will not be served by refusing acceptance of the petitioner''s Counter-claim when the Court itself had directed her to pay the Deficit Court fees, and thereby implied a jurisdiction which it actually did not possess. The only appropriate and effective way-out to secure the end of justice now appears to be that both the Suit and the Counter-claim may be transferred to any other Civil Court at Alipore, which is possessed of the appropriate pecuniary jurisdiction to entertain the petitioner''s claim. For this purpose the petitioner is granted liberty to move an appropriate application under Section 24 of the CPC before the Ld. District Judge, South 24-Parganas at Alipore, and get the pending proceedings transferred accordingly. Such application is to be filed before the Ld. District Judge within 30 days from the date of communication of this Judgment. With the above observations the instant Revisional application is allowed in part and the impugned Order dated 08.09.2010 is accordingly set aside. Parties to bear their own Costs.