GURUPADA SINHA Vs. RAFIQUE MIDDEY

JUDGEMENT

(1.) THIS application is directed against the order dated August 30, 2007 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.214 of 2001 thereby allowing an application for amendment of the plaint.

(2.) THE short fact is that the predecessor in interest of the opposite parties instituted a suit being T.S. No.214 of 2001 against the petitioners for a decree of declaration of title, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), 5th Court, Howrah. THE original plaintiff contended that he acquired title to the suit property by purchase. THE defendants/petitioners herein are contesting the said suit by filing their written statement denying all the material allegations made in the plaint. THEir statement is that the suit is not maintainable in its present form. THE plaintiff has no possession over the suit property and that the defendants are in possession of the suit property. For that reason, the suit is not maintainable in its present form. THE suit was at the stage of pre-trial. At that time, the plaintiff prayed for amendment of the plaint for changing the vacation of the suit property, inclusion of certain other prayers and also the prayer for recovery of the possession of the suit property. That application for amendment of the plaint was allowed by the impugned order. Being aggrieved by the said order, this application has been preferred by the defendants.

(3.) MR. S.P. Roychwdhury, learned Senior Advocate appearing for the petitioners has drawn my attention to the cause title and other portions of the plaint appearing as Annexure A' to the application and thus, he submits that the plaintiff filed the suit for declaration, permanent injunction and consequential reliefs. The suit was valued at Rs.45/- only. By referring to paragraph No. 10 of the plaint, MR. S.P. Roychwdhury submits that the suit valuation has been split up as Rs. 10/- for declaration, Rs. 15/- for permanent injunction and Rs.20/- for other consequential relief as per provisions of section 7(iv) (b) & (c) of the West Bengal Court Fees Act, 1977 and the plaintiff has paid Court fees thereon. He also submits that the defendants have taken the plea that the plaintiff is not in possession of the suit property and so in consideration of the relief sought for, the suit is barred by section 34 of Specific Relief Act. Moreover, proper Court fees have not been paid over the suit property.