TAPABRATA CHAKRABORTY J. - (1.) This appeal is directed against a judgment and order dated 12th December, 2014 passed by the learned Single Judge in GA 405 of 2013 and GA 265 of 2013 arising out of CS 199 of 2005.
(2.) The undisputed facts are that the plaintiff / respondent filed Civil Suit No.199 of 2005 for recovery of possession of the suit premises from the defendant/appellant and for mesne profits. In the said suit a decree was passed on 10th July, 2008 for eviction of the appellant from the suit premises and for an enquiry into the mesne profits under Order 20 Rule 12 of the Civil Procedure Code (hereinafter referred to as CPC). Aggrieved thereby, the appellant preferred an appeal which was dismissed by an order dated 10th December, 2008, however, the Hon'ble Appeal Court stayed the operation of its judgment and order for a period of four months subject to the appellant paying occupation charges at the rate of Rs.1.5 lakhs per month with retrospective effect from 10th July, 2008. Subsequent thereto, an application was filed for appointment of Commissioner to enquire into the mesne profits and by an order dated 12th February, 2009, the Court appointed an Advocate/Commissioner. Upon conducting an enquiry the Commissioner published his report on 6th October, 2012. Thereafter, the respondent made an application being GA 265 of 2013 for a final decree in terms of the report and on or about 31st January, 2013 the appellant made an application being GA 405 of 2013 for setting aside the Commissioner's report. Both the said applications were heard and disposed of by a common judgment and order dated 12th December, 2014.
(3.) Records reveal that the Commissioner enquired into the mesne profits for the period from 1st July, 2005 till 2nd March, 2009 when the possession of the suit property was delivered by the appellant to the respondent. In course of such enquiry the respondent filed a formal application in Court with a prayer, inter alia, to grant the Commissioner summary power to deal with the matter in awarding mesne profits by dispensing with taking of formal evidence, if necessary. In the said application being GA 1716 of 2009, an order was passed on 2nd September, 2009 by which the Hon'ble Court directed, inter alia, that - "This Court does not deem it appropriate to fetter the learned Commissioner in any manner. It is for the Commissioner to decide whether or not formal evidence is necessary." ;