R.K.AGRAWAL,J. - (1.) The above appeal has been filed against the judgment and order dated 22.08.2006 passed by the High Court at Calcutta in A.P.O. No. 350 of 2004, G.A. No. 3808 of 2004 and A.P.O.T. No. 556 of 2004 in Civil Suit No. 457 of 1998 whereby the Division Bench of the High Court partly allowed the appeal filed by the appellant-Company.
(2.) Brief facts: (a) The respondent herein leased out the premises bearing No. 6, Marquis Street, Calcutta to the appellant-Company for a term of 21 years commencing from 16.03.1964 to 15.03.1985 under a registered Lease Deed dated 16.03.1964 at a monthly rent of L 2,045/-. (b) Before the expiry of the lease period, the respondent filed a suit for recovery of possession being Suit No. 1023 of 1982 before the City Civil Court, Calcutta, Third Bench for bona fide use. Vide order dated 06.08.1986, Suit No. 1023 of 1982 for recovery of possession was dismissed by the City Civil Court with costs. (c) On 11.08.1986, the respondent filed a Title Suit being No. 1481 of 1986 before the 8th Bench, City Civil Court, Calcutta for recovery of possession and mesne profit. Vide order dated 18.04.1991, learned single Judge of the City Civil Court decreed the suit in favour of the respondent while declining the claim of mesne profit as the said claim was not pressed. (d) Being aggrieved by the order dated 18.04.1991, the appellant-Company preferred an appeal being F.A.T. No. 1786 of 1991, re-numbered as First Appeal No. 253 of 1992. Vide order dated 09.07.1991, the Division Bench of the High Court, restrained the respondent from executing the decree on the condition that the appellant-Company will continue to pay rent at the rate of L 2,500/- per month. Further, on 11.08.1997, First Appeal No. 253 of 1992 was dismissed, however, the appellant-Company was granted 6 (six) months' time to vacate the suit premises. (e) Feeling aggrieved by the order dated 11.08.1997, the appellant-Company filed a petition for special leave to appeal being No. 19695 of 1997 before this Court which was converted into Civil Appeal No. 1657 of 1998. This Court, vide order dated 09.09.1998, had dismissed the appeal with certain directions. However, on an application filed by the appellant-Company seeking modification in the said order, this Court, vide order dated 25.09.1998 had passed the following order on the said application:- "On mentioning the IA is taken on Board. Having heard learned counsel for the parties further directions are issued as under:- If the appellants hand over peaceful vacant possession of the premises in question on or before 08th October, 1998 then they will have to pay for the use and occupation charges only L 2,500/- only, for the month of October. If they fail to deliver possession by that time they will have to pay use and occupation charges for the month of October at the rate of L 50,000/- only, as fixed by us earlier. Rest of the order remains as it is. IA is disposed of accordingly." (f) After a long drawn litigation between the parties at all levels, the appellant-Company handed over the possession of the suit premises to the respondent on 08.10.1998. (g) The respondent filed a fresh suit being Civil Suit No. 457 of 1998 before the High Court against the appellant-Company for loss and damages caused to the respondent due to wrongful possession to the tune of L 3,23,56,695/- . The appellant-Company preferred G.A. No. 3380 of 2003 in Civil Suit No. 457 of 1998 under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (in short 'the Code') for dismissing the suit. Learned single Judge of the High Court, vide order dated 28.07.2004, dismissed the application filed by the appellant-Company (h) Aggrieved by the order dated 28.07.2004, the appellant-Company preferred APOT No. 556 of 2004 in Civil Suit No. 457 of 1998 before the High Court. The Division Bench of the High Court, vide judgment and order dated 22.08.2006, partly allowed the appeal holding that the suit is maintainable while leaving the question of mesne profit open for the decision by the trial court. (i) Aggrieved by the order dated 22.08.2006, the appellant-Company has preferred this appeal by way of special leave before this Court.
(3.) Heard Mr. Shyam Dewan, learned senior counsel for the appellant-Company and Mr. Pranab Kumar Mullick, learned counsel for the respondent and perused the records. Point(s) for consideration:-;