Item- 13. sg 16-09-2025 Ct. 1 FMAT 222 of 2025 CAN 1 of 2025 Subhadra Dhar & Ors. Versus Mukesh Patwari & Anr. Mr. Sourav Sen, Sr. Adv. Mr. Partha Chakraborty Ms. Adrisnata Chakraborty Md. Obaid …for the appellants Mr. Anirban Bose Mr. Chandrachur Biswas Ms. Atreyee Senapati …for the respondents 1. In a suit for building and re-building, a decree was passed by the learned Trial Court by exercising of power under Order 12 Rule 6 of the Code of Civil Procedure. The learned Trial Judge has proceeded on the basis that the defendants have unequivocally agreed to cooperate with the said landlord in demolishing and/or re-constructing the building at the suit premises on certain terms. For the sake of convenience, the relevant sub-paragraphs in the written statement are reproduced below: 2. 2.(h) That the defendants as such tenant unequivocally agreed to cooperate with the said landlord in demolishing and/or reconstructing the building at the suit premises on certain terms. i) The defendants upon consideration of the terms of the said understanding agreed to convey their “no objection” to the Kolkata Municipal Corporation authorities concerning landlord’s attempt in effecting demolition of the said premises for reconstructing thereat as per sanctioned plan. j) Unfortunately, the said Barendra Kumar Dhar during his lifetime did not commence any construction on the basis of such “building and/or re-building agreement.” It is significant to state that after the demise of said Barendra Kumar Dhar, his legal heirs and representatives an in particular, the plaintiff no.3 approached the defendants to accommodate them as the Owners by temporarily vacating possessing so as to enable the plaintiffs to carry out demolition of the existing old building and reconstruction of the new building subject to sanction of the building plan by the Kolkata Municipal Corporation authorities. k) Surprisingly, despite the defendants expressing their unequivocal consent in cooperating with the plaintiffs for such building or re-building of the old existing structures on the representation that upon completion of construction of the new building they would be provided similar accommodation for commercial purposes either as a tenant at higher rate of rent or to acquire the said space on ownership basis upon payment of costs of construction to the plaintiffs as owners.” 3. The learned First Appellate Court although found that there are admission but was of the view that the 2 admission was required to be read as a whole and the plaintiff would be required to establish his case for building and re-building. 4. The appeal is filed by the landlords. This matter was heard from time to time when suggestions have been given by both the parties for amicable settlement of the issues. Pursuant to the insistence of the defendants that their rights are not being disturbed and adequately protected upon the construction of the said building, initially, an affidavit of undertaking was filed, which was subsequently substituted by a fresh undertaking by way of an affidavit by one Supratip Kumar Dhar. The said deponent is the petitioner no.3 and a power of attorney holder by the petitioner nos. 1 and 2. In paragraph 9 and 13 of the said power of attorney, extensive power has been given to the power of attorney holder to file any affidavit or declaration or pleadings etc. which, in our view, permits the present deponent to affirm the affidavit of undertaking. It has been clearly stated in the said affidavit that the construction would be completed within 18 months. 5. Paragraph 3 of the undertaking it is clearly stated that after completion of the new building, the respondents/defendants shall be accommodated to the newly constructed building with identical floor area within 18 months from the date of vacating. This undertaking has to be read with paragraph 2(k) of the written statement which was reproduced above. 6. Accordingly, we direct the defendants to vacate the said 3 premises on or before 30th November, 2025 as requested on behalf of the respondents. 7. The suit shall be kept pending till the possession is handed over to the respondents. 8. With the above directions, the appeal and the application are disposed of. 9. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. [Soumen Sen, C.J. (Acting)] (Apurba Sinha Ray, J.) 4