RAJ KUMAR Vs. BENOY KUMAR

JUDGEMENT

(1.) This is an application for amendment of the plaint wherein the plaintiff claimed a decree inter alia for specific performance of the agreement dt. Aug. 27, 1979 being Annexures B and C to the plaint and/or for a decree directing the defendant No. 1 and/or defendants and/or such of them as this Hon'ble Court may deem fit and proper to execute a proper and sufficient conveyance in respect of the suit premises, the particulars whereof are set out in Schedule D to the plaint; a decree for Rs. 10,000/- in addition to the decree for specific performance; in the alternative a decree for Rs. 2,50,000/- as compensation.

(2.) The defendants Nos. 1, 2 and 3 have filed a Joint Written Statement, inter alia, alleging that a sum of Rs. 34,500/- payable to the defendants Nos. 2 and 3 by the defendant No. 1 under an agreement, not being paid, the plaintiff was not entitled to get any relief in the suit, relying on the Deed of Partition between the defendants Nos.1, 2 and 3, which provide that the right of the defendants Nos. 2 and 3 to use and enjoy along with the defendant No.1 any portion of the premises is not absolute, and if the defendant No. 1 or his heirs and legal representatives intend to let out or grant a lease of the allotment made to the defendant No.1, the defendant No. 1 was required to pay to the defendants Nos. 2 and 3 a sum of Rs. 34,500/- being the agreed consideration for each of them surrendering and foregoing their respective right of common use and enjoyment of the prayer hall and the adjacent room with the roof over the second floor and the right to pass or re-pass from the verandah and the staircase leading to the said prayer hall. The deed further provide that the defendant Nos. 2 and 3 shall execute a formal declaration regarding such surrender and foregoing of such rights. The petitioner contends that it is incumbent upon the defendant No. 1 to make such payment to the defendants 2 and 3 so that full effect can be given to the agreement which is subject matter of the instant suit. The second aspect of the matter is that whilst in the original suit filed, no claim for possession was made, in this application an attempt is made to amend the plaint by incorporating therein a prayer for vacant possession of such portion of premises No. 19 Sarat Chandra Avenue, Calcutta as has been agreed to be let out to the plaintiff, particulars whereof were given in schedule D and further consequential relief, namely, decree for partition etc. was also sought to be incorporated.

(3.) It may be relevant to note at this stage that admittedly the suit premises is situate outside the aforesaid jurisdiction and leave under Cl.12 of the Letters Patent was sought as part of the cause of action arose within the jurisdiction. In paragraph 21 of the plaint it was specifically pleaded that the plaintiff reserves his right to take appropriate action for claiming possession of the suit premises and in the circumstances the plaintiff prayed for leave under O.2, R.2 of the Civil Procedure Code. It is noted from the records that leave under Cl.12 of the Letters Patent as also leave under O.2, R.2 of the Code was granted to the petitioner on his applying for the same. It would thus appear that the suit filed originally was simpliciter for a decree for specific performance of the agreement and for a money decree in addition, and in the alternative a decree for Rs. 2,50,000/- as compensation.