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Calcutta High Court
Raja Katra Pvt Ltd vs Pranay Chand Mahatab And Ors on 10 July, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
IA No. GA/1/2023
A.P.O.T. No. 333 of 2023
A.P.O. No. 165 of 2023
Arising out of
G.A. No. 4 of 2023
CS/184/1989
RAJA KATRA PVT LTD.
VS
PRANAY CHAND MAHATAB AND ORS.
Present:-
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE RAI CHATTOPADHYAY
For The Appellant : Mr. Dhruba Ghosh, ld. Senior Adv.
: Mr. Chayan Gupta, Adv.
: Mr. Aniruddha Agarwalla, Adv.
: Ms. Priyanka Garain, Adv.
For The Respondents : Mr. A. C. Kar, Sr. Adv.
: Mr. Anirban Kar, Adv.
: Mr. Munshi Ashiq Elahi, Adv.
: Ms. Snigdha Das, Adv.
: Mr. Rohit Mahato, Adv.
: Ms. Khusnuma Akhtar Ansari, Adv.
Heard On : 08.07.2025 Judgment On : 10.07.2025
1. An order of the Hon’ble Single Judge dated August 29, 2023, in
G.A.No. 4 of 2023, passed in connection with CS No. 184 of
1989, is under challenge in the instant appeal. G.A.No. 4 of
2023 was an application filed by the appellant/plaintiff, praying
Page 2 of 12
for rejection of the counter-claim of the defendant No. 6(x) in the
suit. Several grounds were pleaded in the application as above
to support the prayer made therein including a ground, that the
counter-claim by the said defendant, is bellow the pecuniary
jurisdiction of the Court. The other grounds pleaded inter alia
are, that the counter-claim did not disclose any cause of action
and the same is barred by law.
2. After hearing the parties the Hon’ble Single Judge has dismissed
G.A.No. 4 of 2023 on merit and placed the suit on board for
framing of the issues.
3. Thus being aggrieved the plaintiff/appellant has filed the instant
appeal.
4. The factual back ground leading to filing of this appeal may be
elaborated a little in the following manner:
5. The suit by the appellant/plaintiff being CS No. 184 of 1989 is
for a decree for specific performance of the deed of lease dated
March 14, 1938, to be precise, clause No. 1V(10) of the same.
According to the plaintiff, after determination of the lease due to
expiry of the period of validity of the said lease deed and in
terms of clause No. 1V(10) thereof, the validity of the same is to
be extended for a term of 31 years, commencing from March 16,
1989, at a monthly rent of Rs. 10,000/-. The appellant/plaintiff
Page 3 of 12
has sought for the relief in the suit that a decree of declaration
be passed, directing that the plaintiff is entitled to continue as
the lessee of the premises for a term of 31 years commencing
from March 16, 1989, at a monthly rent of. Rs. 10,000/-.
6. The respondent/defendant’s written statement and counter-
claim is that admittedly the period of lease and operation of the
lease deed, have expired. Hence, his prayer is for eviction of the
appellant/plaintiff. Also that, after expiry of the lease period, the
said defendant has taken possession of the property, applied for
sanction of plan and started construction over the area in the
premises for which the plan has been sanctioned by the
competent authority. The defendant submitted about depositing
adequate court fees along with the written statement and
counter claim of him.
7. Hence, followed the application by the plaintiff/appellant being
G.A.No. 4 of 2023 to pray for rejection of the counter-claim of
the defendant, which was dismissed by the Court, vide the
impugned order as mentioned above.
8. The plaintiff/appellant is represented by Mr. Dhruba Ghosh,
learned senior counsel. The defendant No. 6(x) is represented by
Mr. A. C. Kar, learned senior counsel.
Page 4 of 12
9. Mr. Ghosh, learned senior counsel for the appellant/plaintiff
has submitted that in terms of the valuation of the counter-
claim filed by the said respondent/defendant, the same ought
not to have been considered by the Court, to be maintainable
before it. That the counter-claim has been valued at Rs.
1,20,000/- (one lac and twenty thousand only) under section
7(xiii) of the West Bengal Court Fees Act 1970, which is much
less than the pecuniary jurisdiction of the Court, as prevailing
on the date of filing of the counter-claim, that is Rs. 10,00,000/-
(ten lacs only). That the Hon’ble Single Judge has erred in not
considering that due to lack of pecuniary jurisdiction, the
counter-claim of the defendant would not be maintainable
before the High Court.
10. It has further been stated that the appellant/plaintiff has been
rendering property rent to the tune of Rs.10,000/- per month,
since after expiry of the validity period of the lease. The same
has been accepted by the respondent/defendant for a
considerable period of time and most importantly, without any
protest. Hence for the said reason, if not in the capacity of a
lessee, the appellant/plaintiff has acquired the right of
possession, in its capacity as a tenant in the said property and
taking into consideration the quantum of rent paid by the
appellant/plaintiff and accepted duly by the
respondent/defendant, it can be construed that the
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appellant/plaintiff should have been considered to be governed
under the West Bengal Premises Tenancy Act, 1997.
11. Mr. Ghosh, learned senior counsel, for the appellant/petitioner
has stated further that an action before the Court of law, if any,
for eviction of his client, should mandatorily be preceded with a
notice under section 6 of the said Act of 1997. That, otherwise
an action for eviction of his client from the said premise is
wholly bad in law and not maintainable in the eye of law, the
applicant plaintiff having already assumed the role of a tenant
in the said property. Also that, a counter-claim in the suit of the
plaintiff, seeking the relief of eviction of the plaintiff, would thus
not be maintainable. According to the appellant/plaintiff, the
Hon’ble Single Judge has erred in considering as regards
applicability of the provision under Order VI Rule 7 of the Code
of Civil Procedure and the judgment relied on by the
appellant/petitioner as well, that is Eih Limited vs Nadia A Virji
reported in (2022) SCC Online SC 947. According to the
appellant, the impugned order is erroneous and unlawful and is
thus liable to be set aside. According to the appellant/plaintiff,
the counter-claim of the defendant No. 6(x) in the suit is liable to
be rejected for the reasons as above and that an order to that
effect may be passed by this Court.
12. Mr. Kar, learned senior counsel, who is representing the
respondent/defendant No. 6(x), has raised vehement objections
Page 6 of 12
as regards the contentions and prayer of the appellant/plaintiff.
It has been submitted that after determination of the lease upon
expiry of the validity period of the lease deed and the same
having not been extended any further, the appellant/plaintiff,
which was the erstwhile lessee, became a mere trespasser in the
demised premises. Admittedly also neither is there any lease
deed registered any further between the parties, nor any
agreement for tenancy has been entered into between them.
Therefore, according to the respondent/defendant No. 6(x), his
counter-claim challenging the right of a trespasser to be in
possession of the property and his unlawful occupation over the
property, is maintainable. Similarly, his prayer in the counter-
claim for eviction of such trespasser, that is the
appellant/plaintiff, is also maintainable. Mr. Kar, learned senior
counsel has stated that the Hon’ble Single Judge has committed
no wrong in holding in the impugned order, as the Court has
done. Hence, he raises objection that any interference to the
same by this Appellate Court, is at all warranted.
13. According to the respondent/defendant the plaintiff has failed
to discharge its statutory obligations as a lessee, by handing
over possession of the property, at the point of time when the
lease stood determined, whereas, he says that, it was obliged to
do the same as per law. That, at a time when the validity period
of the lease agreement was over and there was no fresh
agreement entered into between the erstwhile lessor and the
Page 7 of 12
lessee, which is an admitted position in the instant case, the law
provides that the lessee has to hand over, peaceful and vacant
possession of the lease hold premises, to the owner thereof.
That, by not following the law as above, the plaintiff has acted
illegally. In this regard Mr. Kar, learned senior counsel, has
referred to a judgment of the Supreme Court in M/s Raptakosh
Brett and Company Limited vs Ganesh Property, reported in AIR
1998 SC 3085.
14. Mr. Kar, learned senior counsel has also relied on the judgment
in Dutta and Associates and Another vs State of West Bengal
and Others reported in AIR 1982 SC 225 and that in Lalit
Mohan Dey vs Smt. Satadalbasini Dasi reported in AIR 1965 Cal
55, for similar proposition of law. He seeks dismissal of the
appeal.
15. The question of the counter-claim being not maintainable for the
reason of being of lesser value than the lowest limit of the
pecuniary jurisdiction of the Court, since touches the very root
amongst the issues involved in this appeal, the same is first
taken up for determination by this Court. As a matter of fact, if
the appellant/plaintiff succeeds on the said point, the Court
need not enter into the other points argued by either of the
parties, on merit.
Page 8 of 12
16. The City Civil Court (Amendment) Act of 2013 [West Bengal Act
XVIII of 2013], published vide notification No. 1552-L dated
October 10, 2013], may be mentioned in this regard. In
accordance with the amended Second Schedule vide the same, in
Column IV thereof, the following has been provided:
“(a) in case the value of the suit exceeds rupees one crore, to the
High Court at Calcutta;
(aa) in case the value of the suit does not exceed rupees one
crore but exceeds rupees ten lakhs, to the City Civil Court
established under section 3 of the City Civil Court Act, 1953 and
the High Court at Calcutta, concurrently;
(b) in case the value of the suit does not exceed rupees ten lakhs
but exceeds rupees sixty thousand, to the City Civil Court
established under section 3 of the City Civil Court Act, 1953;”
17. Hence, according to the said amended provision the High Court
in its ordinary original civil jurisdiction shall entertain a suit,
valuation of which exceeds Rs. 1 Crore, or entertain
concurrently with the City Civil Court a suit, valuation of which
does not exceed Rs. 1 Crore but exceeds Rs. 10 Lacs. Any suit
valued up to Rs. 10 Lacs, shall remain outside the lower limit of
the pecuniary jurisdiction of this Court.
18. Having said so, the other pertinent fact is that the subject
matter of the instant appeal is the counter-claim of the
Page 9 of 12
defendant which the appellant/plaintiff wants to be set aside,
but its prayer to that effect has been declined by the Court.
19. The provision for filing counter-claim by a defendant was
introduced, for the first time, by the 1976 Amendment to the
Code of Civil Procedure, 1976, and consequently, Order 8 Rules
6A to 6G came to be introduced by virtue of which now the
counter-claims can be set up by the defendant. A counter-claim
is really a suit, though the same is taken in the written
statement. Just as a suit is filed by the plaintiff, defendant
seeks a relief against the plaintiff on a cause of action which he
has against the plaintiff. It is an independent cause of action
which could also be agitated in a separate suit. It is to avoid
multiplicity of proceedings, the defendant is given liberty to file a
counter-claim and get adjudication. Issues are suggested in
both the original claim as well as the counter-claim and both are
disposed of by a common judgement. It is an enabling provision
which has given a right to the defendant that instead of filing an
independent action, he can seek that relief in a suit filed by the
plaintiff against him. It is clear that the scope of a counterclaim
is in the nature of a cross suit for all purposes. Upshot of the
above, emerging is the principle that the counter claim has to be
treated as a separate suit. Only for the purpose of convenience
and speedy disposal of rival claims, counter-claim in a suit is
made permissible.
Page 10 of 12
20. Under Order 8 Rule 6A(2) of the Civil Procedure Code 1908, it is
provided that a counter-claim shall have the same effect as a
cross suit so as to enable to the Court to pronounce judgment in
the same suit, both on the original claim and the counter-claim.
Order 8 Rule 6A(4) of the Civil Procedure Code 1908, clearly
provides that the counter-claim shall be treated as a plaint and
governed by the rules applicable to the plaints. According to the
proviso to Order 8 Rule 6A(1) of the Civil Procedure Code 1908,
the counter-claim should be within the pecuniary limits of
jurisdiction of the Court.
21. Admittedly the counter-claim filed by the respondent/defendant
in the suit on March 26, 2021 has been valued at Rs.
1,20,000/-. In view of the provisions of the statute as quoted
above, the valuation of the counter-claim appears to be much
less than the lower limit of the pecuniary jurisdiction of this
Court as on the date of filing of the said Counter claim.
Pecuniary Jurisdiction of the Court as prevalent on the date of
filing of the counter-claim would be relevant for the purpose of
determination of the maintainability of the same, so far as
valuation therefor vis-à-vis pecuniary jurisdiction of the Court is
concerned. Hence, admission of the counter-claim, in the
instant case violates the provision under proviso to Order 8 Rule
6A(1) of the Civil Procedure Code 1908.
Page 11 of 12
22. So far as, the aspect of valuation of the counter-claim is
concerned, the Hon’ble Single Judge has erred to take into
consideration the same, while delivering the order impugned.
The valuation of the counter-claim, which is a cross suit in
nature, determines its maintainability, so far as the pecuniary
jurisdiction of a Court is concerned. Evidently the
respondent/defendant has not been able to cross that hurdle, so
as to maintain his counter-claim before the Court. In such view
of the facts, the decision of the Hon’ble Single Judge in the said
order dated August 29, 2023, thereby dismissing the prayer of
the appellant/plaintiff for setting aside of the counter-claim by
the respondent/defendant, before the Court, appears to be
erroneous and not maintainable. The same is liable to be set
aside.
23. The Court finds it unnecessary to deal with the other points
argued in the appeal by the parties, since the impugned order is
found not to be sustained at the threshold for the reason of lack
of jurisdiction.
24. Hence, the instant appeal being A.P.O.T. 333 of 2023, filed by
the appellant/plaintiff, is allowed. The impugned order of the
Hon’ble Single Judge dated August 29, 2023, in G.A. No. 4 of
2023, passed in connection with CS No. 184 of 1989, is set
aside. The counter-claim filed by the respondent/defendant is
not maintainable in this Court.
Page 12 of 12
25. Urgent certified website copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
(ARIJIT BANERJEE, J.)
(RAI CHATTOPADHYAY, J.)
Later
After delivery of the judgment, Mr. Kar, learned Senior
Counsel representing the respondent/defendant no.6(X), says
that this judgment and order should not prevent his client from
agitating his counter-claim before the appropriate forum.
We clarify that this judgment and order will not prevent
the defendant no. 6(X) from taking recourse to any other forum
for enforcement of his counter-claim as he may be entitled to in
accordance with law.
(ARIJIT BANERJEE, J.)
(RAI CHATTOPADHYAY, J.)
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