Ashoke Ghosh v. Achintya Kumar Ghosh

Calcutta HC10 Dec 2024CO/90/2022

Case brief

AI extract

What is this about?

C.O. 90 of 2022; Sri Ashoke Ghosh vs Achintya Kumar Ghosh; High Court at Calcutta, Appellate Side; Bibhas Ranjan De, J.; Section 151 Code of Civil Procedure; Title Suit No. 83 of 2017; orders dated 17.09.2021 and 07.10.2021; Commissioner report dated 16.08.2018; repair of suit shop room; damp and three round shape holes in eastern wall; refusal of repair of entire premises and iron gate; interim order vacated; expedition of trial; revisional application disposed of.

What did the court decide?

Liberty to the defendant/petitioner to repair only the damp portion and the three round shape holes of the eastern side wall of the suit shop room within three weeks, in the presence of the landlord/opposite party or his representative with prior information; interim order, if any, vacated; trial court requested to expedite the suit. ¶¶13

Ashoke Ghosh Vs Achintya Kumar Ghosh — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the orders dated 17.09.2021 and 07.10.2021 passed in Title Suit No. 83 of 2017 (allowing, and then recalling/modifying, the application under Section 151 CPC) are sustainable in law. +1 more

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Court's answer

The challenge to the impugned orders was resolved by confining the petitioner's repair liberty to the defects found in the Commissioner's report, and the revisional application was disposed of on that basis.

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Ratio / Principle

Only the eastern wall of the suit shop room requires repair; the defendant/petitioner is at liberty to repair only the damp portion and the three round shape holes of the eastern side wall within three weeks, in the presence of the landlord/opposite party or any of his representatives, with prior information to the landlord.

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Key takeaways

Any interim order operating in the matter stands vacated.ratio¶¶14
The Learned Trial Judge is requested to dispose of Title Suit No. 83 of 2017 as expeditiously as possible.obiter¶¶15

Detailed headnote1 paragraphs

Calcutta High Court, Appellate Side (Civil Revisional Jurisdiction), C.O. 90 of 2022 (Bibhas Ranjan De, J.). Revisional application assailing orders dated 17.09.2021 and 07.10.2021 in Title Suit No. 83 of 2017, whereby the trial Judge allowed an application under Section 151 of the Code of Civil Procedure for repairs and thereafter recalled/modified that order. The dispute concerned repair of the suit shop room; a commission held on 16th August 2018 reported only damp and three round shape holes in the eastern side wall, while the Section 151 petition had sought repair of the entire premises and installation of an iron gate. Holding that only the eastern wall required repair, the Court permitted the defendant/petitioner to repair only the damp portion and the three round holes of the eastern wall within three weeks, in the presence of the landlord/opposite party or his representative with prior information, vacated any interim order, and requested the trial court to dispose of the suit expeditiously. Revisional application disposed of.

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Item 10.12. No. 2024 73

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Ct 22

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rup

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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

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C.O. 90 of 2022

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Sri Ashoke Ghosh Vs Achintya Kumar Ghosh

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Mr. Partha Pratim Roy, Mr. Anirban Das, Mr. Samrat Chakrabroty. …. for the petitioner. Mr. Sanjib Seth. … for the opposite party.

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The instant revisional application has been filed assailing the order dated 17.09.2021 as well as 07.10.2021 passed in connection with Title Suit No. 83 of 2017, wherein learned Judge allowed an application under Section 151 of the Code of Civil Procedure by the order dated 17.09.2021 in spite of observation contrary to the prayer was made in the body of the order. On that score, only the order is not sustainable in law. Learned Judge further recalled the order dated 17.09.2021 by his order dated 07.10.2021. By the order dated 07.10.2021 he modified the order, which would not at all sustainable in law. On that score, the order dated 07.10.2021 is also liable to be set aside.

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Heard both the learned counsel appearing on

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behalf of the parties to this revisional application. The dispute between the parties is with regard to repair of the suit shop room and for that purpose one Commission work was held on 16^th August, 2018. Report was submitted only mentioning damp as well three round shape holes in the eastern side of the wall of the suit shop room. Though petition for repairing under Section 151 of the Code of Civil Procedure filed with a prayer for repairing entire premises and for installation of iron gate.

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On careful perusal of the Commissioner’s report, I find only eastern wall of the suit shop room is required to be repaired and accordingly defendant/petitioner herein is at liberty to repair only damp portion and three round shape holes of eastern side wall of the suit shop room within three weeks from the date in presence of landlord/opposite party herein or any of his representatives with prior information to the landlord/opposite party herein.

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