Ms. Arati Ghosh Vs. Cultural Enterprises Corporation and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059594
CourtKolkata High Court
Decided OnFeb-22-2012
JudgeI. P. MUKERJI
AppellantMs. Arati Ghosh
RespondentCultural Enterprises Corporation and ors.
Excerpt:
order sheet ga no.267 of 201.cs no.203 of 200.in the high court at calcutta ordinary original civil jurisdiction original side ms.arati ghosh versus cultural enterprises corporation & ors.before: the hon'ble justice i.p.mukerj.date :22. d february, 2012. mr.d.mantosh, mr.s.ganguly…appear for applicant. mr.p.c.pal chowdhury, mr.r.chatterjee…appear for defendant nos.5 to 9. mr.a.c.kar… appears for plaintiff. mr.s.goswami…appears for defendant no.2 the court : this is an application by the third and fourth defendants. it appeared from the submission made by mr.mantosh on behalf of these defendants that his clients are apprehensive about the order dated 9th november, 2011 appointing a special referee to determine mesne profits of the subject premises. this order was passed subsequent to the order dated 2nd september, 2011 of sanjib banerjee, j. in a chapter xiiia application made in the above suit. he allowed the application. a part decree of eviction against the second defendant from premises no.138/1, bidhan sarani, kolkata was passed. the subsequent portion of the order has created controversy. it is as follows : “the other claims of the plaintiff on account of mesne profits in respect of premises no.138/1 and on account of mesne profits in respect of premises no.138/2, till the date that it was sold, may be considered upon a further application in such regard being carried by the plaintiff.” the learned counsel for the petitioners refers to order xx rule 12 of the code of civil procedure. he submits that this provision empowers the court, inter alia, to either pass a decree for mesne profits or direct an inquiry into such mesne profits. it is submitted that in this order there is neither determination of mesne profits not ordering of an inquiry by the court for its determination. in my judgment, this is not the correct perception. the order of the learned judge has to be read as a whole. he passed a part decree of eviction. the other part of the decree, which necessarily follows an order of eviction, was left to be considered at a later stage on an application being made. i do not think there is anything wrong in it because the learned judge might have well thought that the application to be filed should bring forth all the necessary particulars of the property, the rent being received and so on. such application was made where i passed the order on 9th november, 2011 appointing a special referee to inquire into and determine the mesne profits. i think the entire exercise by the court was in accordance with order xx rule 12 of the code of civil procedure. therefore, this submission is rejected. the next submission of the learned counsel for the petitioners is that they are in possession of the subject property. an agreement for sale was executed between the owner and them on 14th january, 2005. they got possession of it from the middle of 2005. now, the present owners of 138/1 and 138/2, bidhan sarani, kolkata are the plaintiff and the defendant nos.5 to 9. all the owners executed conveyance in favour of the petitioners for 138/2, bidhan sarani, kolkata on 27th september, 2008. on 10th october, 2011 premises no.138/1 was sold by the defendant nos.5 to 9 to the petitioners.the plaintiff, a co-owner did not join in the conveyance. therefore, according to the applicant the determination of mesne profits should stop from the date they took possession of the property. secondly, they submitted that the special referee is asking them to produce all particulars regarding the property and the income therefrom, which is affecting them. here, i may observe that the decree was for eviction of the second defendant and necessarily for determination of mesne profits payable by them. therefore, the petitioners are not parties to the determination of mesne profits. hence, their contention cannot be countenanced that mesne profits should not be payable after the middle of 2005. at this stage, mr.mantosh submitted that since his clients were in possession, from the middle of 2005 the second defendant on receiving an award for payment of mesne profits would ask for contribution from them. i dispose of this application without in any way varying the orders dated 2nd september, 2011 or 9th november, 2011. i make it clear that the petitioners will be treated as third parties in the reference for determination of mesne profits. they would be at liberty to participate in the proceedings and adduce evidence, if called upon to do so in accordance with law. i also make it clear that this determination is confined to the plaintiff and the second defendant. any counter claim that the second defendant might in future bring against the petitioners and the defence of the petitioners to such counter claim are kept open. this application is, accordingly, disposed of with the above observation. all parties concerned are to act on a signed photocopy of this order on the usual undertakings. (i. pkd.p.mukerji, j.)
Judgment:

ORDER

SHEET GA NO.267 OF 201.CS NO.203 OF 200.IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Ms.ARATI GHOSH Versus CULTURAL ENTERPRISES CORPORATION & ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date :

22. d February, 2012.

Mr.D.Mantosh, Mr.S.Ganguly…appear for applicant.

Mr.P.C.Pal Chowdhury, Mr.R.Chatterjee…appear for defendant nos.5 to 9.

Mr.A.C.Kar… appears for plaintiff.

Mr.S.Goswami…appears for defendant no.2 The Court : This is an application by the third and fourth defendants.

It appeared from the submission made by Mr.Mantosh on behalf of these defendants that his clients are apprehensive about the order dated 9th November, 2011 appointing a Special Referee to determine mesne profits of the subject premises.

This order was passed subsequent to the order dated 2nd September, 2011 of Sanjib Banerjee, J.

in a Chapter XIIIA application made in the above suit.

He allowed the application.

A part decree of eviction against the second defendant from premises no.138/1, Bidhan Sarani, Kolkata was passed.

The subsequent portion of the order has created controversy.

It is as follows : “The other claims of the plaintiff on account of mesne profits in respect of premises no.138/1 and on account of mesne profits in respect of premises no.138/2, till the date that it was sold, may be considered upon a further application in such regard being carried by the plaintiff.”

The learned counsel for the petitioners refers to Order XX Rule 12 of the Code of Civil Procedure.

He submits that this provision empowers the Court, inter alia, to either pass a decree for mesne profits or direct an inquiry into such mesne profits.

It is submitted that in this order there is neither determination of mesne profits not ordering of an inquiry by the Court for its determination.

In my judgment, this is not the correct perception.

The order of the learned Judge has to be read as a whole.

He passed a part decree of eviction.

The other part of the decree, which necessarily follows an order of eviction, was left to be considered at a later stage on an application being made.

I do not think there is anything wrong in it because the learned Judge might have well thought that the application to be filed should bring forth all the necessary particulars of the property, the rent being received and so on.

Such application was made where I passed the order on 9th November, 2011 appointing a Special Referee to inquire into and determine the mesne profits.

I think the entire exercise by the Court was in accordance with Order XX Rule 12 of the Code of Civil Procedure.

Therefore, this submission is rejected.

The next submission of the learned counsel for the petitioners is that they are in possession of the subject property.

An agreement for sale was executed between the owner and them on 14th January, 2005.

They got possession of it from the middle of 2005.

Now, the present owners of 138/1 and 138/2, Bidhan Sarani, Kolkata are the plaintiff and the defendant nos.5 to 9.

All the owners executed conveyance in favour of the petitioners for 138/2, Bidhan Sarani, Kolkata on 27th September, 2008.

On 10th October, 2011 premises no.138/1 was sold by the defendant nos.5 to 9 to the petitioneRs.The plaintiff, a co-owner did not join in the conveyance.

Therefore, according to the applicant the determination of mesne profits should stop from the date they took possession of the property.

Secondly, they submitted that the Special Referee is asking them to produce all particulars regarding the property and the income therefrom, which is affecting them.

Here, I may observe that the decree was for eviction of the second defendant and necessarily for determination of mesne profits payable by them.

Therefore, the petitioners are not parties to the determination of mesne profits.

Hence, their contention cannot be countenanced that mesne profits should not be payable after the middle of 2005.

At this stage, Mr.Mantosh submitted that since his clients were in possession, from the middle of 2005 the second defendant on receiving an award for payment of mesne profits would ask for contribution from them.

I dispose of this application without in any way varying the orders dated 2nd September, 2011 or 9th November, 2011.

I make it clear that the petitioners will be treated as third parties in the reference for determination of mesne profits.

They would be at liberty to participate in the proceedings and adduce evidence, if called upon to do so in accordance with law.

I also make it clear that this determination is confined to the plaintiff and the second defendant.

Any counter claim that the second defendant might in future bring against the petitioners and the defence of the petitioners to such counter claim are kept open.

This application is, accordingly, disposed of with the above observation.

All parties concerned are to act on a signed photocopy of this order on the usual undertakings.

(I.

Pkd.P.MUKERJI, J.)