SHAIKH IBRAHIM Vs. SHAHIDA BI

JUDGEMENT

(1.) RULE . Returnable forthwith with the consent of Counsel for the parties. The learned Counsel for the Respondents waives service.

(2.) THE Respondents herein (hereinafter referred to as 'Plaintiff') filed the Special Civil Suit No.151/92/A in the Court of Civil Judge, Senior Division, Margao, for partition and separate possession of their half share in the suit house, contending that the said property was jointly purchased by the husband of the Plaintiff No.1 and father of Plaintiff No.2 along with Defendant No.1, who is the Petitioner in the present Petition. The Defendant No.2 then filed the Written Statement and contested the suit denying that the property was jointly purchased by him and the father of Plaintiff No.1. Later on, the Defendants filed application for amendment stating how much amount was spent by Defendant No.1 for purchase of the property and how much amount was spent by him for construction of the house on the property. In the amendment, it is further contended that the Defendants were ready and willing for partition of the suit property on condition that the Plaintiffs should pay to Defendant No.1 the sum of Rs.65,872 11, being half share in the amount spent in the improvement of the property, along with interest at the rate of 18% per annum, from the date of purchase of the land and the construction of the house. This amendment application was allowed and necessary issues were framed by the learned Civil Judge. Thereafter, the Defendants filed second application styling the same again as 'amendment of the written statement' and also as a 'counter claim'. The Defendants contended that the amount of Rs.65,872 11 was payable by the Plaintiffs towards half share of the price of the land and the costs of the construction of the house thereon with the interest at the rate of 18% per annum which the Defendants calculated at Rs.3,43,853/ and thus made a total claim of Rs.4,09,725/ . This Application, being Civil Miscellaneous Application No.574 of 2000, was contested by the Plaintiffs and the learned Civil Judge by his Order dated 11th July, 2001 rejected the Application. Hence the present Petition.

(3.) NOW the question arises whether this Application amounts to counter claim and whether as per law, the Petitioner can claim such an amendment.