9911796707
TMI Blog1988 (4) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the defendant No. 3 (present respondent No. 1) filed an appeal therefrom which was allowed on 10-7-1985 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint so far as the third defendant is concerned, is in paragraph 7 in the following words: "7. 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." The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiff's sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the flat in question from before the date of the decree passed in the earlier suit. The plaintiff's assertion in paragraph 7 of the plaint is thus contradicted and the suit cannot be decreed on its basis. The learned counsel proceeded to analyse the situation arising out of the records of the case to show that if the defendant No. 3 is held to be in possession since before the earlier decree, other issues would arise in the suit, on which the plaintiff will be required to lead further evidence. The learned counsel strenuously argued that in the facts and circumstances of the case, the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge (Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the defendant no. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
