1. This is a contempt petition filed by the landlord of the premises. The suit was filed on 7-2-1992 against Mr. Ramji Roy Pun partner of French (Agency) for possession of the premises bearing No. 7/1-A at 7/IC, Lindsay Street, Calcutta. Along with the plaint two receipts were filed in respect of payment of rent for Rs. 701 and Rs. 800/-. The receipts described the premises as 7/1-A at 7/1-C, Lindsay Street, Calcutta. It is not contended that, in the suit, any dispute was raised by respondents-tenants that the said receipts which referred to the premises 7/1-A at 7/1-C, did not relate to the property described in plaint as 7/1-A. The trial court dismissed the suit on 28-7-28-7-1995 but the first appellate court decreed the suit on 26-6-1996. The said judgment was affirmed by this Court on 6-8-1996. The respondent/tenants sought six months time which was granted subject to their filing an undertaking but the undertaking was never filed by the tenants. The review application which was filed by the tenants was dismissed on 21-6-1996.
2. The question arose with regard to the mesne profit payable in respect of the premises. In that behalf the landlady filed a separate appeal C.A. No. 4905/98 to this Court and that came to be decided on 18-9-1998. Parties agreed that mesne profits for the premises described as 7/1-A, Lindsay Street should be ascertained from 26-6-1996 till date of delivery of possession. The parties also agreed that Justice G.N. Ray, retired judge of this Court should determine the mesne profits payable from 26-6-1996 as an arbitrator. The order passed by this Court dated 18th September, 1998 described the premises as 7/1-A, Lindsay Street. No. objection was raised in this Court in regard to the description of the premises.
3. But when the matter was taken up by the learned arbitrator for deciding the question of mesne profits, various objections were raised by the respondents. Firstly, it was stated that there was no question of determining the mesne profits. Another objection was that premises bearing No. 7/1-A for which decree was obtained was different from No. 7/1-A at 7/1-C and that execution could not proceed against 7/1-A at 7/ 1-C where, according to respondents, they were conducting business. The matter came up to this Court on 26-7-1999 when the decree holder was directed to execute the decree in respect of premises bearing No. 7/1-A and not with regard to 7/1-C. Subsequently, the execution court took up the matter and possession of the premises bearing No. 7/1-A was granted to the decree holder on 21-8-1999. Objection was raised on behalf of the respondents that under the guise of execution against 7/1-A, the respondents were being evicted from the premises which was described as 7/1-A at 7/1-C. However possession was delivered for the petitioners in respect of 7/1-A on 21-8-1999. In fact, it appears the respondents have even filed an application for restoration of possession back to them.
4. The learned judge Justice G.N. Ray who was dealing with the mesne profit enquiry had to adjourn the matter during 15 sittings as he could not go into the question as to which was the premises with regard to which the mesne profits had to be determined.
5. It was at that juncture that the present contempt application was filed by the decree holder. In this application we have heard learned Counsel for the petitioner and learned senior counsel for the respondents.
6. During the course of the hearing of this petition, the attention of the learned senior counsel for the respondents was invited by us to two important documents in the record. One is a petition filed in an earlier Suit No. 697/91 by Mr. Ramji Roy Pun, partner French (Agency) the tenant. French (Agency) was impleaded as defendant No. 2 in suit No. 697 of 1991 filed by the M/s. Dhanuka Textile and Reliance Industries Ltd. In that application, Mr. Ramji Roy Pun, partner of French (Agency) the tenant, stated as follows.
Your petitioner was the tenant in respect of shop room on the ground floor of the premises bearing No. 7/1-A, Lindsay Street and carries on business in garments.
7. Thus the respondents admitted carrying on business at 7/1-A.
8. We may now refer to yet another document. That is the plaint filed by the respondent French (Agency) in Suit No. 206/91 against M/s. Dhanuka Textile and Reliance Industries Ltd. In the plaint filed by the French (Agency) it was admitted as follows:
At all material times, the plaintiff was and still is a tenant in respect of a shoproom bearing No. 7/1-A situated on the ground floor of premises No. 7/1-C. Lindsay Street in the town of Calcutta within the said jurisdiction under the landlord of the said part.
9. From the aforesaid two documents and the rent receipts filed along with the present suit, which were put to the respondent's senior counsel, it is very clear to us that no distinction whatsoever was made by the respondents between the premises 7/1-A, Lindsay Street, Calcutta which was the subject matter in respect of which the decree for eviction was passed and 7/1-A at 7/1- C. Unfortunately in respect of this premises in Lindsay Street, confusion was sought to be created by the respondent before the Arbitrator relying on certain Municipal Assessments. We may also state that no objection as to identity of the premises was raised in the suit or in the appeals, before the decree was passed. It was not contended that the rent receipts filed along with plaint which referred to shop in 7/1-A at 7/1-C was different from the plaint schedule which de scribed the shop as 7/1-A.
10. We therefore hold that the premises in the same premises was sometimes described as 7/1-A and sometimes as 7/1-A at 7/1-C.
11. In the above circumstances, we have put it to the learned senior counsel for the respondents whether the respondents would proceed with the mesne profit enquiry before the arbitrator without raising any objection as to the identity of property. Learned Counsel made it clear that no objection would be raised before the arbitrator in this behalf. We were given to understand that an application had been filed by the respondent for restoration of possession back to them. We were told that the said application was dismissed. We wanted to know if respondents wanted to file any appeal therefrom. Learned counsel for the respondents fairly stated before us that no further proceedings will be pursued by the respondent for recovering back possession which has already been delivered for the petitioner.
12. It is therefore, clear that the only issue that will be gone into before the arbitrator will be with regard to the mesne profits for the period 26-6-1996 to 21-8-1999 in respect of property. No other question will be permitted to be raised
13. The contempt petition is disposed of accordingly.