Sanjit Kumar Paul vs Bhaskar Paul & Ors
2022 Latest Caselaw 52 Cal

               IN THE HIGH COURT AT CALCUTTA
                 CIVIL APPELLATE JURISDICTION
                          (Appellate Side)

                                               MAT 1337 of 2021
                                                    With
                                               IA NO: CAN 1 of 2021
                                                      CAN 2 of 2021

                                            (Through Video Conference)

                                          Reserved on: 05.01.2022
                                          Pronounced on: 10.01.2022


Sanjit Kumar Paul
                                                             ...Appellant

                                   -Vs-
Bhaskar Paul & Ors.
                                                           ...Respondents

Present:-

Mr. Samiran Giri, Mr. Khairul Alam, Advocates ... for the appellant

Mrs. Arundhati Banerjee, Mr. Kaustav Banerjee, Advocates

Mr. Subir Sanyal, Mr. Mihir Kundu, Ms. Sumouli Sarkar, Advocates ... for the CESC Limited

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE KESANG DOMA BHUTIA, JUDGE

Prakash Shrivastava, CJ:

1. This appeal is directed against the interlocutory order of the

learned Single Judge dated 30th of November, 2021 passed in WPA

No. 16560 of 2021 whereby the writ petition has been kept pending

and by way of interim direction CESC Limited has been directed to 2 MAT 1337 of 2021

give a new electric connection to the writ petitioner (respondent No. 1

herein) from same meter board which is already existing in the

premises in question.

2. The submission of the learned Counsel for the appellant is

that the partition is already held between the parties, therefore, learned

Single Judge has proceeded on the incorrect premises.

3. Learned Counsel for the respondent No. 1 has submitted

that though the partition has taken placed but there is not

demarcation.

4. Learned Counsel for the respondent CESC has submitted

since the learned Single Judge has proceeded on incorrect premises

about partition, therefore, the matter to be remanded back from fresh

decision and that the order of the learned Single Judge in the case of

Nabin Agarwal & Another v. CESC Limited & Others, 2003 (4)

CHN 541 has already been set aside by the division bench.

5. Having heard the learned Counsel for the parties and perusal

of the record, we have noticed that the learned Single Judge has

proceeded on the premises that there was no partition between the

parties and property was admittedly a co-ownership of the appellant

and the respondent No. 1.

6. Learned Counsel for the appellant has produced the

partnership deed before this Court and has also drawn the attention of

this Court to paragraph 1 of the writ petition wherein the fact mutual

partition and separation of residence has been mentioned. Hence, we

are of the opinion that the issue needs to be considered and decided by

the learned Single Judge having due regard to the factum and material

relating to partition between the parties. So far as the judgment in the 3 MAT 1337 of 2021

matter of Nabin Agarwal & Another v. CESC Limited & Others is

concerned it has been pointed out by the learned Counsel for the

CESC that the division bench by an order dated 27.10.2006 in APO

No. 99 of 2004 has already set aside the said single bench judgment.

The record reflects that the learned Single Judge has kept the writ

petition pending till the decision on the reference made by the

impugned order.

7. In the above factual background the Counsel for the parties

are granted liberty to make prayer to the learned Single Judge to

decide the writ petition itself considering the facts relating to the

partition between the parties and also considering the order of the

division bench in APO No. 99 of 2004 whereby the judgment in the

case of Nabin Agarwal & Another v. CESC Limited & Others by

the learned Single Judge has been set aside. The electricity connection

which has been granted by the impugned order will be treated as an

interim arrangement till the final decision of the writ petition. The

appeal is accordingly disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(KESANG DOMA BHUTIA) JUDGE

Kolkata 10.01.2022 ___________ PA(SS)