RANIBALA NATH SHARMA, W/O LT BINODE BIHARI NATH SHARMA; PRADIP NATH SHARMA, S/O LT BINODE BIHARI NATH SHARMA Vs. ASHOTOSH GHOSH, S/O LT MANORANJAN GHOSH

JUDGEMENT

(1.) By means of this review petition, the petitioners have sought review of the judgment dated 09-07-2013 passed by this Court in CRP No.33 of 2006.

(2.) The petitioners herein filed a suit against the respondent herein in which they sought decree for declaration that they were the owners of the suit property and that the respondent herein is their tenant and is in arrears of rent and, therefore, rent of Rs.1,05,000/- was recoverable at the time of filing of the suit. The respondent herein filed a written statement contesting the claim of the plaintiffs that they were owners of the suit property. According to the respondent-defendant, one Parul Bala Nath Sharma was the owner of the property. According to him, by deceit and fraud the plaintiffs had taken a sum of Rs.50,000/- as advance from him and, therefore, the amount be ordered to be returned.

(3.) In the said suit, issues were framed and evidence was led. At the time of arguments, the plaintiffs sought leave to withdraw the suit with permission to file a fresh suit on the same cause of action. This leave was granted. At this stage, the defendant filed an application for amendment of his counter claim seeking a declaration that the original plaintiffs who were the defendants in the counter claim were not the owners of the suit land. This application was rejected on the ground that since the counter claim was an independent suit everything should have been stated in the counter claim that was filed. This Court vide its judgment held that at the time when the counter claim was filed and the suit filed by the original plaintiffs was pending, the plaintiffs had to prove their title to the suit land to get a decree in their favour. If the suit had continued and the plaintiffs had failed to prove their title, then the defendants could have legitimately claimed refund of Rs.50,000/- on the ground that it was wrongly paid to the plaintiffs. On this basis, the petition was allowed.