Judgment

SHARMA, J. :- By the impugned judgment the Division Bench of the Calcutta High Court set aside the ex parte decree passed by the Original Side of the court in favour of the plaintiff Sudha Devi, the present appellant. The dispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta. The plaintiff prayed for a decree for Rs. 1,44,730/- 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 mense 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 the judgment and remand the suit for retrial. The prayer Was rejected by the order dated 11-10-1985. Civil Appeal No. 4145 of 1986 is directed against this order.

* Reported in AIR 1986 Cal 256

2. According to the plaintiffs case, the defendant No. 1 Baranagar Jute Factory Company Ltd. was the tenant in respect to the flat in question under the plaintff. The Jute Company defaulted in payment of rent and also wrongfully sublet the flat to the second defendant Sadhan Chattopadhyaya, which led to the filing of an eviction suit by the plaintiff. Both the defendants were impleaded in the suit but they did not appear to contest. An ex parte decree of eviction was passed on 19-2-1982. It is further pleaded that subsequent to the decree, either of the two defendants or both wrongfully inducted the third defendant to occupy the demised flat. The plaintiff was, therefore, entitled to the reliefs mentioned in the plaint.

3. The third defendant filed an application under the provisions of Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, but later withdrew the same and assailed the decree in appeal on merits. The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff, on the basis of the meagre evidence led by her, failed to establish her case.

4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against the defendants Nos. 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in 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 palintiffs 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 disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allow