ORDER

% 05.04.2024 I.A.7644/2024(for early hearing)

1. The present application has been filed under Section 151 CPC for early hearing of the I.A.23476/2023 which was filed for directing the plaintiff to carry out the necessary repair work in the Suit premises.

2. The counsel for the plaintiff has no objection if the application is taken up today.

3. The matter is preponed and the I.A.23476/2023 is taken up today.

4. The application is accordingly disposed of.

I.A.23476/2023(under Section 151 CPC)

5. It is submitted in the application by the Defendant that he is in possession of the Suit property and because of the ingression of roots of Peepal tree, the basement has been substantially damaged. The rainy season is again approaching and it may cause more damage. Therefore, the plaintiff is required to carry out the necessary repairs, but because the plaintiff has failed to do so, the defendant may be permitted to carry out the repairs in the basement of the property. It is also submitted that the defects in the Suit property are material in nature having a substantial adverse effect on the value and quality of the suit property, about which plaintiff was fully aware before entering into the Memorandum of Understanding as well as Agreement to Sell, with the defendants. Therefore, the cost of repair is required either to be borne by the plaintiff or to be deducted from the total agreed Sale consideration of the suit property.

6. Hence, a prayer is made that the plaintiff be directed to carry out the repairs or in the alternative, the defendant may be allowed to undertake the repairs and the actual cost may be adjusted in the total agreed Consideration of the Suit Property.

7. The application has been opposed by the counsel for the plaintiff on the ground that the Agreement to Sell already stands terminated and the Suit has been amended for taking the Possession, Arrears of Rent and the mean Profits. It is therefore, submitted that the plaintiff is under no obligation to carry out the repairs since the property is in their possession since 2014.

8. Submissions heard.

9. It is not denied that as on date it is the defendant who is in possession of the Suit Property. He is also at liberty to maintain the property properly which may include carrying out the necessary repairs. He is at liberty to prove that this expense of the repair, are liable to be borne by the plaintiff.

10. The application is accordingly disposed of.

NEENA BANSAL KRISHNA, J APRIL 5, 2024/PT