Disposed

Bijoy Kumar Chakraborty v. Tapan Chakraborty

Calcutta HC22 Dec 2022SAT/169/2022

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What is this about?

In an appeal regarding a partition decree, the court rejected the contention that a point on mis-description of premises should have been entertained earlier at the first appellate stage. The appellant was granted an extension to vacate premises by 31 December 2023 upon payment of enhanced occupation charges, without prejudice to the respondent's other rights.

What did the court decide?

Time granted to vacate premises by 31st December 2023 upon payment of enhanced occupation charges; execution proceedings stayed until then.

Bijoy Kumar Chakraborty Vs Tapan Chakraborty — Partition | Calcutta HC (2022)

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22.12.2022 KC(5)

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S.A.T. 169 of 2022 Bijoy Kumar Chakraborty

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-versus-

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Tapan Chakraborty With CAN 1 of 2022

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Mr. Partha Pratim Roy, Mr. Sarbananda Sanyal……...…….For the appellant.

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This second appeal is entertained on the undertaking of learned advocate-on-record for the appellant to file an affidavit of service by 23^rd December, 2022.

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None appears for the respondent.

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A point is sought to be raised that mis-description of the suit premises, which point was not taken at the trial stage, ought to have been entertained at the first appellate stage. In not doing so, the learned first appellate court has committed a serious error of law and a substantial question of law has arisen in this second appeal.

¶9

We do not find any merit in this contention. As rightly held by the learned first appellate court, suit description is a mixed question of law and facts and in the facts of the case could not be entertained for the first time at the first appellate stage.

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¶11

However, considering the submissions made by learned counsel for the appellant, we grant time to his client to vacate the suit premises by 31^st December, 2023 upon fulfilment of the conditions below.

¶12

From August, 2022 (the fist appellate court’s decree having been passed in July, 2022) the appellant shall pay an enhanced amount of occupation charges @ Rs.5,000/(Five Thousand) per month, being Rs.1,500/- above from Rs.3,500/-, the last rent paid by him to the respondent. The arrear occupation charges up to December, 2022 shall have to be cleared by 31^st March, 2023. The current occupation charges from January, 2023 till December, 2023 shall have to be paid by the 7^th of each month in advance.

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Execution proceedings shall not be undertaken by the respondent or shall not be proceeded with, if already undertaken, up to 31^st December, 2023. However, in default of payment of the occupation charges in the manner directed or upon failure to vacate the premises by 31^st December, 2023, execution may be levied forthwith.

¶14

The payment of the above occupation charges is without prejudice to the rights and contentions of the respondent to claim mesne profit or any other relief in respect of rent or occupation charges from the competent jurisdiction.

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¶16

The appeal (S.A.T. 169 of 2022) and the connected application (CAN 1 of 2022) are disposed of.

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(I.P. MUKERJI, J.)

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(BISWAROOP CHOWDHURY, J.)

Bijoy Kumar Chakraborty v. Tapan Chakraborty

Case brief

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Bijoy Kumar Chakraborty v. Tapan Chakraborty

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