JHARIPADA KARMAKAR Vs. YUDHISTHIR BOSE

JUDGEMENT

(1.) The petitioner Jharipada Karmakar has approached before this Court by preferring the present application under article 227 of Constitution of India challenging the order dated 21st July, 2011 passed by Civil Judge, Senior Division, Purulia in connection with Title Suit No. 106 of 2007 allowing thereby an application for amendment filed by the defendant/opposite party. The petitioner/plaintiff initiated this Title Suit No. 106 of 2007 with a prayer for decree of specific performance of contract in respect of the scheduled land against the defendant/opposite party No. 2 and also for a decree of permanent injunction against the defendant No. 1.

(2.) The fact of the case of the plaintiff/petitioner is that defendant No. 2 is the owner of the scheduled property and the plaintiff was agreed to purchase the same and the consideration money was fixed at Rs. 80,000/-. Both the plaintiff and defendant No. 2 entered into an agreement for sale of the scheduled land on 12.12.2002 and defendant No. 2 executed the same after accepting the advance of Rs. 30,000/-. The defendant No. 2 again took Rs. 10,000/- from the plaintiff but failed to hand over the title deed to the plaintiff within stipulated period and failed to perform part of his contract for which the plaintiff sent a notice on 23.05.2006 by registered post with AD informing him that the plaintiff is ready and willing to purchase the same on payment balance considering money. The plaintiff further submitted that as per the term of the agreement the defendant No. 2 handed over the possession of the scheduled land to the plaintiff on the date of agreement i.e. on 12.12.2002 but the plaintiff came to know on 31.08.2007 that the defendant No. 2 transferred some portion of the scheduled land to the defendant No. 1 in 2005 with an intention to defraud the plaintiff.

(3.) Defendant No. 2/opposite party No. 1 has contested the said suit by filing written statement on 25.02.2010 in which he has admitted the fact of acceptance of advanced money on execution the agreement on 12.12.2002. But according to the defendant No. 2 as the plaintiff need not take any decision for execution of the Title deed on payment of balance consideration money for which the agreement became inactive and null and void. Then the defendant No. 2 transferred the scheduled property to the defendant No. 1 in which he is in possession. The defendant No. 2 on 02.12.2010 filed an application for amendment under order 6 rule XVII CPC by which the defendant No. 2 wanted to incorporate the fact that the suit property belonged to one Chattrapati Bose since disease who was the father of defendant No. 2 and after his demise the defendant No. 2 along with his one brother and two sisters became the owner of the suit property. Thus, consequently the defendant No. 2 has only one-fourth share he accordingly prays, for an order to include the said fact as paragraph 11 ka in the written statement. However, the plaintiff opposed the said amendment application by filing written objection.