MONIKA Vs. BISWABIKASH

JUDGEMENT

(1.) This application under S.115 of the Code of Civil Procedure is at the instance of the defendant, and it is directed against order No.59 dt. Dec.5, 1984 of the 5th Court of the Assistant District Judge, Alipore. By the said order, the learned Assistant District Judge allowed the prayer of the plaintiff for the amendment of the plaint.

(2.) The plaintiff has filed a suit against the defendant for the specific performance of an agreement for sale dt. May 15, 1977. It is the plaintiffs case that on May 15, 1977, the defendant agreed to sell plot No. 877, Block 'A', Lake Town, Calcutta comprising an area of 6 cottahs 14 chhataks 37 sft. for a consideration of Rs. 75,500/- and accepted from the plaintiff a sum of Rs. 15,001/- by way of earnest money. The plaintiff also paid from time to time a further sum of Rs. 13,000/- to the defendant. Further, the case of the plaintiff is that the defendant agreed to sell the disputed plot in two stages, namely, the front portion measuring 3 cottahs 4 chhataks 35 sft. for Rs. 38,500/- and the rear portion measuring 3 cottahs 10 chhataks 2 sft. for a consideration of Rs. 37,000/-. Thus, according to the plaintiff the entire plot measuring 6 cottahs 14 chhataks 27 sft. was agreed to be sold at Rs. 75,500/-. It is also alleged by the plaintiff that the draft conveyance for the front land for a consideration of Rs. 38,500/- was approved by the defendant's husband.

(3.) The defendant in her written statement has denied that she agreed to sell the disputed plot at or for a sum of Rs. 75,500/- as alleged by the plaintiff. The case of the defendant is that the plaintiff made an offer to purchase the disputed plot at the rate of Rs. 17,300/-per cottah. In order to show his bona fide, the plaintiff paid to the defendant a sum of Rs. 15,001/- on May 15,1977 at the defendant's house. The plaintiff brought an handwritten draft receipt from his lawyer and requested the defendant's husband to write out the receipt exactly according to the draft. After the receipt was written out, the defendant put her signature acknowledging payment of Rs. 15,001/-. As the rate of price of land was not mentioned in the draft receipt in terms of which the defendant had granted a receipt for the said sum of Rs. 15,001/-, the plaintiff at the time of his next visit and payment on June 9, 1977 at the defendant's house, himself expressly put in writing and under his signature the offer of price he already made, namely, Rs. 17,300/-per cottah as agreed upon by the parties. A Xerox copy of the receipt granted by the plaintiff has been annexed to the written statement. The receipt is in the following terms :