Bhartia Steel & Enng.Co.Pvt.Ltd vs Dina Nath Parolia & Anr
2022 Latest Caselaw 2353 Cal/2

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OD-3
                              ORDER SHEET

               IN THE HIGH COURT AT CALCUTTA
           ORIDINARY ORIGINAL CIVIL JURISDICTIONN
                        ORIGINAL SIDE


                             IA No. GA/7/2022
                                    IN
                               EOS/58/1987

                   BHARTIA STEEL & ENNG.CO.PVT.LTD.
                                -Vs-
                       DINA NATH PAROLIA & ANR.


       PRESENT:
       THE HON'BLE JUSTICE RABINDRANATH SAMANTA

DATE : 7th September, 2022

Mr. M. Das, Adv.

Ms. Madhupriya, Adv.

Mr. Aniruddha Sinha,Adv.

..... for the plaintiff

Mr. M.S. Tiwari,Adv.

Mr. Shantanu Mishra,Adv.

Mr. Shweta Podder, Adv.

.....for the defendants

The Court:- The application being G.A/7/2022 has been taken out by the defendants praying for setting aside of an undated order passed by the learned Special Referee on 29.06.2022 and permission to further cross-examine the plaintiff's witness.

It is stated by the defendants that the suit being EOS No. 58 of 1987 was decreed by a co-ordinate learned Single Bench on 09.12.2014. In the decree the learned Single Bench appointed Ms. Hashnuhana Chakraborty, Advocate as a Special Referee to adjudicate the amount and quantum of the mesne profits. The decree was assailed in the Hon'ble Appeal Court and in the Hon'ble Supreme Court of India, but, the defendants did not get any relief. The learned Special Referee for the purpose of adjudicating the mesne profits conducted hearing on different dates. The plaintiff filed affidavit of evidence of its witness (P.W.1). The Special Referee concluded the cross-examination of P.W. 1 vide order dated 3rd July, 2019.

Being dissatisfied with the performance of the learned Advocate appointed by them, the defendants engaged Mr. M.S. Tiwari, learned Advocate to conduct the hearing on their behalf. After perusal of the relevant papers the newly engaged learned Advocates of the defendants discovered that the plaintiff in an objection filed in connection with Misc Case No. 29 of 2019 arising out of an execution case stated that the plaintiff was a thika tenant. The defendants aver that if the plaintiff was a thika tenant, the question of adjudicating the mesne profits or payment of any mense profits does not arise. Such being the factual matrix, the plaintiff's witness (P.W.1) required to be cross-examined on recall on the plaintiff's disclosure of the fact that it was a thika tenant. Accordingly, the defendants filed an application before the Special Referee for recalling of the evidence of P.W. 1, but, the learned Special Referee rejected the application made by them. Assailing the order of the Special Referee not warranted by law, the defendants have sought for the reliefs as above.

Admittedly, a learned Single Co-ordinate Bench decreed the suit in EOS No. 58 of 1987 in favour of the plaintiff on 9th December, 2014. But, as to passing decree on mesne profits the learned Single Bench observed as under:

"So far as issue no. 5 is concerned, the plaintiff did not adduce sufficient evidence in support of its claim. The oral evidence in this regard is a claim for a sum of Rs.1,000/- per day. I do not find it appropriate to pass a decree on the basis of materials made available as on date. The Counsel for the plaintiff submits that the plaintiff may be granted another opportunity to prove the mesne profit in terms of Order 20 Rule 12 of the Code of Civil Procedure, 1908. In such circumstances, Ms. Hashnuhana Chakraborty, Advocate, Bar Library Club is appointed as the Special Referee to inquire into the quantum of mesne profit and damages receivable by the plaintiff from the defendants on and from May 1, 1980 being the date next to the date when the lease was terminated till the plaintiff receives possession of the same. The Special Referee will conduct and conclude the enquiry as expeditiously as possible. The Special Referee will not grant any adjournment to any of the parties. The Special Referee will submit her report when the suit appears next in the list."

In compliance with the order passed as above, the Special Referee conducted hearing on several dates to ascertain or to adjudicate the mesne profits. The plaintiff filed affidavit of evidence of its witness( P.W.1) and this witness was cross-examined at length on the part of the defendants.

It is stated by the defendants that after they engaged another advocate to conduct the proceeding, it was discovered that the plaintiff in the objection filed in Misc Case No. 29 of 2019 arising out of an execution proceeding stated that it was a thika tenant in respect of the premises. On gathering such information the defendants by preferring an application sought for permission to cross-examine the plaintiff's witness on recall, but the learned Special Referee rejected the application. The Special Referee rejected the application on the reason that there was no ambiguity in the evidence of the plaintiff's witness which required any clarification.

Learned Counsel appearing for the defendants submits that the Special Referee being appointed by the Court was empowered under Order 18 Rule 17 of the Code of Civil Procedure to recall any witness who has been examined.

In such context it will be apposite to refer to Order 18 Rule 17 of the Code of Civil Procedure which reads as under:

" The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."

Admittedly, the plaintiff's witness was examined and cross- examined in full in respect of the proceeding initiated by the Special Referee to ascertain or adjudicate the mesne profits. It is the contention of the defendants that after it discovered that the plaintiff in an objection in connection with an execution proceeding stated that it was a thika

tenant in respect of the premises, the plaintiff's witness required to be cross-examined further on recall to introduce such factum.

Learned Counsel appearing for the defendants by referring to a decision in the case of Vadiraj Naggappa Vernekar (Dead) through legal representatives-Vs- Sharadchandra Prabhakar Gogate reported in (2009) 4 SCC 410 submits that if evidence on re- examination of a witness has a bearing on the ultimate decision of the suit, the Trial Court may permit recall of such witness for re- examination-in-chief with permission to the defendants to cross-examine the witness. Learned Counsel submits that this provision of law is also applicable to a proceeding before a Special Referee for adjudicating the mesne profits.

Per Contra, learned counsel appearing for the plaintiff argues that recall of a witness is permissible if it enables Courts to clarify any doubts regarding any evidence led by a party. To countenance his argument learned counsel has cited two decisions i) in the case of Bagai Construction-Vs- Gupta Building Material Store reported in (2013) 14 SCC 1 and ii) in the case of Gayathri-Vs- M. Girish reported in (2016) 14 SCC 142.

In the decision reported in (2009) 4 SCC 410 the Hon'ble Apex Court has held that recall of a witness is permissible under Order 18 Rule 17 of the Code of Civil Procedure to enable the Court to clarify any doubts that may have arisen during the course of his examination. The Hon'ble Apex Court has also held that if it has a bearing on the ultimate decision of the suit, the Trial Court may permit recall of such witness for re-examination-in-chief with permission to the defendants to cross- examine the witness. In the decision reported in (2013) 14 SCC 1 the

Hon'ble Apex Court has held that leading of additional evidence would clarify doubts of the Court and earlier non-production was for valid reasons, then recalling of a witness is permissible. In the decision reported in (2016) 14 SCC 142 the Hon'ble Apex Court has held that the provision under Order 18 Rule 17 of the Code of Civil Procedure is to enable the Court to clarify any issue or doubt.

Though the provision under Order 18, Rule 17 of the Code of Civil Procedure strictly applies to Court, the principle under this Order, however, in my view, is applicable to a proceeding undertaken by a Special Referee appointed by the Court to adjudicate mesne profits.

As stated above, after the evidence of the plaintiff's witness stood closed, the defendants sought to introduce the fact that the plaintiff was a thika tenant in respect of the premises in question by cross-examining the witness.

What I find, the point urged by the defendants to cross-examine the witness on recall does not speak of any clarification of any ambiguity crept in the evidence of the plaintiff's witness. That being the factual aspect and in the light of the decisions as cited (supra), the point as urged by the learned counsel for the defendants is not tenable.

Viewed from other aspect, in terms of the judgment and decree passed by the learned Single Bench in E.O.S 58 of 1987 confirmed by the Hon'ble Appellate Court, the defendants' occupation in the decretal premises shall be deemed to be unlawful occupation with effect from May 1, 1980. As the relevant provisions of the Calcutta Thika Tenancy (Acquistion and Regulation) Act, 1981 and the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 enjoin, a thika tenant in

respect of a premises shall be deemed to be the landlord of the premises for the purpose of evicting a tenant or an occupier under him.

Therefore, in view of the above, this Court does not find any illegality or irregularity in the order passed by the Special Referee.

Accordingly, the application is dismissed on contest.

No order as to costs.

Urgent certified website copies of the order, if applied for, be given to the parties upon compliance with all requisite formalities.

(Rabindranath Samanta,J.)