Case: Smt. Sudha Devi Vs. M.P. Narayanan &amp; Ors

By the impugned judgment the Division Bench of the Calcutta High Court set aside the ex parte decree passed by the original side of the court in favour of the plaintiff Sudha Devi, the present appellant. The dispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta. The plaintiff prayed for a decree for Rs. 1, 44, 730 as past mesne profits besides future mesne profits at the rate of Rs. 170 per day and for "if necessary, decree as against the third respondent for possession of the flat" described in the plaint. By way of an alternative relief to the money claimed, an inquiry for determination of the mesne profits was asked for. None of the defendants appeared. At the ex parte trial the plaintiff examined one witness and tendered certain documents in evidence. The learned Single Judge decreed the suit and defendant 3 (present respondent 1) filed an appeal therefrom which was allowed on July 10, 1985 by the judgment which is under challenge in Civil Appeal No. 4146 of 1986. The plaintiff thereafter filed an application with a prayer to modify the judgment and remand the suit for retrial. The prayer was rejected by the order dated October 11, 1985. Civil Appeal No. 4145 of 1986 is directed against this order2. According to the plaintiffs case, defendant 1 Baranagar Jute Factory Company Ltd. was the tenant in respect to the flat in question under the plaintiff. The Judge Company defaulted in payment of rent and also wrongfully sublet the flat to the second defendant Sadhan Chattopadhyay, which led to the filing of an eviction suit by the plaintiff. Both the defendants were impleaded in the suit but they did not appear to contest. An ex parte decree of eviction was passed on February 19, 1982. It is further pleaded that subsequent to the decree, either of the two defendants or both wrongfully inducted the third defendant to occupy the demised flat. The plaintiff was, therefore, entitled to the reliefs mentioned in the plaint3. The third defendant filed an application under the provisions of Order 9, Rule 13 of theCode of Civil Procedure for setting aside the ex parte decree, but later withdraw the same and assailed the decree in appeal on merits. The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff, on the basis of the meagre evidence led by her, failed to establish her case4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against defendants 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words7. Subsequent to the said decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat

Reasoning:
We, therefore, agree with Mr Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is7. After hearing the learned counsel for the parties at considerable length, we also agree with Mr Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As nobody is disputing this position before us, we do not consider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the concession of defendant 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall continue to be evidence in the suit