- (1.) Calling in question the legal pregnability of the order dated 30.05.2013 passed by the learned Civil Judge (Junior Division) 5th Court at Howrah in Title Suit No. 118 of 2006, the plaintiff/petitioner has sought for the amendment of the plaint on the ground that the learned Trial Court failed to exercise its jurisdiction and failed to consider that to resolve the real controversy in the suit it was necessary. Learned Trial Court also lost sight of the fact that in the original plaint he had taken the leave under Order II Rule 2 of the C.P.C. The main grievance is such without adhering to the factual aspects followed by legal principles the learned Trial Court rejected the amendment only on the ground of limitation. According to him, the principal/opposite party (since deceased) at the time of filing written statement admitted that there was an agreement between the principaldefendant/opposite party and the present plaintiff/petitioner to the effect that the principal-defendant/opposite party would execute the sale deed in his favour. Therefore, by way of proposed amendment he is not trying to insert any new cause of action. In his plaint also he has categorically stated that there was an agreement between him and the principaldefendant/opposite party for selling the suit property to him and a substantial part of consideration has been paid by him to the principaldefendant/opposite party. After the death of the principaldefendant/opposite party, his predecessors stepped into the shoes of the principal-defendant/opposite party but they are reluctant to execute the sale deed in terms of the agreement to sale. He further contended that if the aforesaid factual aspects were considered by the learned Court below in its proper perspectives in that case he would succeed in getting a favourable order from the Trial Court.
(2.) Learned Counsel appearing on behalf of the successors of the principal-defendant/opposite party submits that there was no such agreement by and between them and they are not willing to execute and register the deed of conveyance in favour of the plaintiff in respect of the said property. According to the plaintiff/petitioner, had to seek for an amendment and to incorporate the said averment in the schedule of amendment. He has also wanted to incorporate in the prayer portion i.e. a decree for specific performance of contract against the substituted defendant No. 1 (series).
(3.) The present petitioner/plaintiff has also come up with another fact that a suit has been filed by one Purnima Dutta in connection with the same suit property and the said suit was filed against Biswajit Karmakar (principal-defendant/opposite party) for a declaration that she is the absolute owner of the property as described in the schedule of that plaint and the principal-defendant i.e. Biswajit Karmakar (since deceased) had no manner of right, title and interest in respect of the property in question. In the said suit the plaintiff Purnima Dutta clearly averred that the defendant (present defendant Biswajit Karmakar since deceased) had already transferred his right, title and interest in the suit property in favour of her, in the year 1977 and therefore, the defendant lost all his right, title and interest. After coming to know about the said fact the present petitioner has filed the present Title Suit bearing No. 118 of 2006 claiming for a decree for permanent injunction restraining the present opposite party from transferring or encumbering or making over possession of the suit property to anybody else in any manner whatsoever. Thereafter, the present petitioner has filed an application under Order I Rule 10 (2) of C.P.C. in connection with Title Suit No. 13/2003. The said prayer was rejected by the Trial Court in Title Suit No. 13/2003. Against that order, the present petitioner has filed a revisional application bearing C.O. 4067 of 2012 before a Co-ordinate Bench and the revisional application was disposed of by the Co-ordinate Bench and allowed the present petitioner to be a party in that proceeding. While disposing of the said revisional application, the said Coordinate Bench held that the present petitioner is a necessary party in that Title Suit No. 13/2003 and held "the learned trial Judge in considering the application for addition of party did not consider the impleadment of Purnima in Akbar Ali's suit and also overlooked the fact that Akbar Ali wants to protect his interest in the suit property in view of assertion of Purnima in the application filed under Order I Rule 10 of the C.P.C. and the stand taken by the legal heirs of Biswajit in Purnima's suit.";