AI Structured Summary
Not yet generated for this judgment
Judgment
The Court: The respondent is not represented even at the second call. The respondent has not been represented in the matter for quite some time and notices were required to be issued to the respondent. By the latest letter of August 22, 2019, which the respondent appears to have received on the same date, the respondent was put on notice that the matter could be concluded in the absence of the respondent.
The small ground canvassed by the appellant plaintiff is that the appellant has obtained a decree for eviction and even for mesne profits but only in default. It would be best to not try and describe the operative part of the impugned judgment and see the words of the Single Bench:
"The plaintiff do get a decree of eviction and mesne profit against the defendant in delicto of non-compliance of any of the terms of the solemn order dated 27th August, 2013 passed in Special Leave to Appeal (Civil No. 15524 of 2011) by the Hon'ble Supreme Court."
The above paragraph appears not to make any sense at all. The Single Bench completely failed to grasp the scope and effect of the Supreme Court order and appears to have been unduly overawed by it. Even if it was a Supreme Court order, it was only an interlocutory order and nothing in such interlocutory order bound the suit Court to continue the same even after the decree.
It may do well to appreciate the circumstances in which the Supreme Court order of August 27, 2013 came to be passed. There is a provision in Chapter-XIIIA of the Rules on the Original Side of this Court under which suits of certain kinds as described therein may be proceeded with in a summary manner and only on affidavits without receiving oral evidence. It is possible for a decree for eviction to be obtained by such summary procedure in certain circumstances. The plaintiff in this suit instituted in 2007 resorted to the procedure under Chapter-XIIIA of the Rules on the Original Side of this Court. The decree passed by the Single Bench on the plaintiff's application under Chapter-XIIIA of the said Rules was upset in appeal and the plaintiff carried the Division Bench order to the Supreme Court. The Special Leave Petition was disposed of by the order dated August 27, 2013, the effective terms whereof are quoted in the impugned judgment without the Single Bench in this case noticing the following paragraph from the Supreme Court order:
"Having regard to the controversy in the matter, we request the High Court to conclude the trial in the Civil Suit No. 288 of 2007 expeditiously and preferably within one year from the date of production of the order of this Court."
Thus, the Suit Court was under no obligation to continue the interim arrangement that had been allowed by the Supreme Court during the pendency of the suit and the Suit Court ought to have confined itself to the effective decree that may have been passed in favour of the plaintiff.
The present appeal is of limited import since the appellant has succeeded on almost all counts up to the point of obtaining the decree for eviction and mesne profits, but for the twist in the tail.
Since it is evident from the rest of the judgment impugned that the plaintiff has succeeded on almost all counts and has been found to be entitled to obtain the decree for eviction, the operative part of the judgment is modified by deleting therefrom all words after the words "against the defendant" and by issuing further directions as to mesne profits as indicated hereinafter.
The plaintiff will be entitled to mesne profits from the date of the institution of the suit till the date of recovery of possession or a period of three years from the date of the judgment and decree of the trial Court of December 22, 2016, whichever is earlier. For such purpose, Ms. Nilanjana Adhya, Advocate is appointed Special Referee with a mandate to take up such reference by September 1, 2019 and conclude the same by September 30, 2019 upon notice to the parties. The Special Referee will get a consolidated remuneration of Rs.2 lakh for such purpose. The Special Referee's report will be presented in the trial Court by the end of November, 2019 for an appropriate decree or order to be obtained thereon.
The plaintiff's appeal succeeds as above. The cross-objection, OCO No. 8 of 2017, stands dismissed for default.
APD No. 331 of 2017 is disposed of.