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1988 (4) TMI 426 - SC - Indian LawsDispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta - Held that - As 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 the defendant no. 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial.
Issues:
1. Setting aside of ex-parte decree by Division Bench of Calcutta High Court. 2. Dispute over a flat in Calcutta involving past and future mesne profits. 3. Application under Order IX, Rule 13 for setting aside ex-parte decree by third defendant. 4. Rejection of witness evidence by High Court. 5. Adequacy of evidence to prove plaintiff's case. 6. Justification of remanding the suit for retrial. 7. Scrutiny of evidence and need for further trial. 8. Decision to remand suit to Single Judge for disposal. 9. Timeframe for disposal of the suit. Analysis: 1. The Division Bench of the Calcutta High Court set aside the ex-parte decree in favor of the plaintiff, leading to the appeal before the Supreme Court. The dispute revolved around a flat in Calcutta with claims for past and future mesne profits. 2. The plaintiff alleged that the tenant defaulted in rent payment and wrongfully sublet the flat, leading to an eviction suit. An ex-parte decree was passed, and subsequent events involving the third defendant occupying the flat formed the basis of the plaintiff's claim. 3. The third defendant initially sought to set aside the ex-parte decree but later challenged it on merits. The Letters Patent Bench set aside the decree citing insufficient evidence by the plaintiff. 4. The High Court rejected the sole witness's evidence, questioning his competence and lack of disclosure of relationship with the plaintiff. Attempts to rectify this at the Supreme Court stage through an affidavit were deemed impermissible. 5. Arguments centered on the adequacy of the witness's evidence and its contradiction of the plaintiff's case. The need for further evidence if the third defendant was in possession before the earlier decree was highlighted. 6. The trial court's decision to proceed ex-parte was scrutinized, emphasizing the necessity of reliable evidence even in the absence of a defense. Lack of evidence supporting the plaintiff's claim regarding the third defendant's induction was a crucial point. 7. In the interest of justice, the Supreme Court agreed to remand the suit for retrial, acknowledging the need for further examination of the case. The plaintiff may seek amendment of pleadings, and defendants are to file written statements for the retrial. 8. The judgments of the High Court were set aside, and the suit was remanded to the Single Judge for disposal within six months, emphasizing expeditious resolution. This detailed analysis covers the key issues, arguments, and the ultimate decision of the Supreme Court in remanding the suit for retrial.
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