TMI Blog1988 (4) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the learned Single Judge for retrial. - Civil Appeal Nos. 4145-46 of 1986. - - - Dated:- 26-4-1988 - SHARMA, L.M. AND SEN, A.P., JJ. For the Appellant : Tapas Ray and B.R. Agarwal For the Respondent: V.A. Bobde, Rajiv Dutta and Ms. Mridula Ray JUDGMENT: SHARMA, J. 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 necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the reliefs mentioned in the plaint. 3. The third defendant filed an application under the provisions of Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree, but later withdrew 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 case. 4. The fact that the plaintiff obtained an ex-parte decree in the earlier suit against the defendant No. 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 words: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr. Tapas Ray must, therefore, be rejected. 5. The learned counsel next urged that even ignoring the relationship of the witness with the plaintiff, his evidence is adequate to prove the plaintiff s case which has not been rebutted by any of the defendants either by filing a written statement or cross-examining the witness. Mr. Bobde, the learned counsel representing the defendant No. 3 (respondent No. 1 before us), contended that the witness contradicted the case pleaded in the plaint by positively stating that the defendant No. 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the evidence of the sole witness disproves this part of the case. Having regard to the allegations in the plaint, the facts emerging from the documents and the oral evidence, it is clear that several other questions may arise for consideration if the defendant No. 3 is assumed to be in possession from before the earlier decree. 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 is. 7. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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