SASANKA SEKHAR BHATTACHARYYA Vs. SURAJIT MOHAN BARDHAN

JUDGEMENT

(1.) THIS first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated 7th May, 1997 passed by the Assistant District Judge, Ninth Court, Alipore, District-South 24-Parganas, in Title Suit No. 32 of 1991 thereby granting a decree for recovery of possession of Schedule A property, as mentioned in the counterclaim, in favour of the defendant with a direction upon the plaintiffs to hand over possession in favour of the defendant within three months from the date of passing of decree.

(2.) BEING dissatisfied, the plaintiffs have come up with the present first appeal. It appears from record that in the suit for specific performance of contract, the written statement was filed in the month of August, 1991 and long thereafter, on 16th June, 1994, while the hearing of the suit was going on by leading evidence, the defendant came up with an application for amendment of the written statement and the learned Trial Judge by the order dated 16th June, 1994 allowed such application. In the said application for amendment of the written statement, the defendant pleaded that he was entitled to recover possession of the portion of the property lying on the northern side of the building, a part of the building being the subject-matter of the agreement for sale, from the plaintiffs with further prayer for recovery of Rs. 20,142/- on account of electricity charges, proportionate share of municipal rates and taxes and cost of procuring water, partly by labourers and partly, by fixing separate water pipeline and new electric motor pump.

(3.) IT, however, appears from record that the said amendment was not in the form of counterclaim as provided in the Code of Civil Procedure. There was no prayer portion of the counterclaim in a manner provided for the plaint, there was no valuation of the various relief claimed separately in the body of the averments and at the same time, there was no averment as to when the cause of action for filing of such counterclaim arose. Even there was no Schedule A to the counterclaim although the learned Trial Judge has decreed in terms of the Schedule A to the counterclaim. Over and above, even no court-fee was paid on the said counterclaim and no separate number was mentioned for such counterclaim.