Calcutta High Court
Ranbaxy Laboratories Limited vs Ajay Kumar Rathod on 25 August, 2014
Author: Manjula Chellur
Bench: Manjula Chellur
1
ORDER SHEET
APOT No. 428 of 2014
GA No. 2622 of 2014
Cs No. 151 of 2010
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
RANBAXY LABORATORIES LIMITED
Versus
AJAY KUMAR RATHOD
BEFORE:
The Hon'ble CHIEF JUSTICE MRS. MANJULA CHELLUR
The Hon'ble JUSTICE BANERJEE
Date : 25th August, 2014.
Appearance:
Mr. Sandip Bhattacharjee with
Mr. Bidyut Banerjee, ld. Advocates
For the appellant.
Mr. Abhrajit Mitra, Sr. Advocate,
Mr. Jishnu Chowdhury, Mr. Chayan Gupta,
Ld. Advocates for the respondent.
The Court :- This appeal is directed against the order dated 18th July, 2014. The appellant herein was the defendant before the learned Single Judge.
2The admitted facts are, suit for eviction and mesne profit came to be filed. So far as the eviction suit, an application under Chapter XIIIA of the Original Side Rules was filed by the plaintiff. He obtained a decree of eviction. The defendant apparently challenged the same by preferring an appeal. The appeal came to be dismissed. It is also not in dispute, as Chapter XIIIA of the said Rules contemplates summary trial, affidavits in lieu of evidence of the plaintiff so also defendant were filed.
Now, subsequent to the passing of an order for eviction a Special Referee was appointed for the purpose of computing mesne profit receivable by the plaintiff. The Special Referee submitted his report and the defendant-appellant took objection that the decree itself was wrong as there was no pecuniary jurisdiction for filing such suit before the High Court and as a matter of fact, question no. 28 was put to the plaintiff in this regard. The learned Judge after referring to the entire details did observe that with the judgement and order dated 07.07.2014 passed in GA No. 2356 of 2012 the report of the Referee stood concluded and the defendant being a party to the said suit could not now challenge the report of the Referee. As a matter of fact, the report of the Referee was affirmed and the 3 enhancement as prayed by the plaintiff was allowed in the said order dated 07.07.2014.
The question that arose before the learned Judge was whether the defendant could re-agitate the report of the Special Referee by way of a new challenge that is with regard to pecuniary jurisdiction. The learned Judge after considering the matter on facts opined that at the earliest point of time when Chapter XIIIA application came to be considered and the suit was disposed of, the defendant having failed to take any such defence cannot be allowed to open up such defence and, even otherwise, as on 07.07.2014 the judgment having become final so far as the report of the Referee is concerned, the matter cannot be re-agitated.
Aggrieved by the same, the appellant-defendant is before us.
According appellant-defendant he could not agitate such issue at the earliest point of time as such issue required consideration of evidence, therefore, he could not take such plea and he was waiting for appropriate time. According to him, the valuation report could be challenged in an appeal. Therefore, he raised such objection to the Referee's report before the learned Single Judge.
4
On going through the order of the learned Single Judge and the procedure contemplated under Chapter XIIIA of the Original Side Rules, the defendant when he filed the affidavit in lieu of evidence was expected to put forward his defence on all points including the jurisdictional issue - whether it is pecuniary or territorial. In the present case, apparently such defence was not taken up by the appellant-defendant and only after filing of the report of the Special Referee such objection was taken up and that too, after judgment dated 07.07.2014. The learned Judge had already discussed at length that though order on 07.07.2014 was passed, decree was not drawn. Therefore, once the order was passed, subsequent objection could not be entertained.
Having regard to the discussion made by the learned Trial Judge, we are of the opinion that the learned Trial Judge was justified in rejecting the defence or objection raised by the appellant-defendant opining that the appellant-defendant did not raise such objection at the right time in a proper manner when it was required to. Therefore, though he was entitled to raise such defence in the eviction suit, having failed to do so at 5 the right time cannot now be allowed to agitate the said issue.
We find no good ground to interfere with such opinion of the learned Trial Judge. Accordingly, the appeal is dismissed without any order as to costs.
( MANJULA CHELLUR,CJ.) (BANERJEE, J.) dg/