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The petitioners, as plaintiffs, have filed a suit for partition and in such suit, the Trial Court has passed an order of status quo in respect of the suit property till the disposal of the suit. The defendant No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for modification of the said order of status quo and the learned Trial Court after hearing both the sides ultimately permitted the said defendant No.2 to complete his construction by order dated 22.09.2011

IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT PORT BLAIR

CR No.005 of 2012
( Mrs.P.Omana & ors. Vs. Mr.P.Sivan & Ors.)
Mr.Arun S. Kumar … for the petitioners
Mr.Krishna Rao … for respondents
January 18, 2012
The petitioners, as plaintiffs, have filed a suit for partition and
in such suit, the Trial Court has passed an order of status quo in
respect of the suit property till the disposal of the suit. The defendant
No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for
modification of the said order of status quo and the learned Trial Court
after hearing both the sides ultimately permitted the said defendant
No.2 to complete his construction by order dated 22.09.2011. The said
order dated 22.09.2011 was challenged by the petitioners in Misc.
Appeal No.20 of 1011 before the learned District Judge, A & N Islands.
The learned District Judge by the impugned order dated 13.01.2012
affirmed the said order dated 22.09.2011 and dismissed the Misc.
Appeal.
On perusal of the order dated 22.09.2011 passed by the
learned Trial Court, it appears that a Report of the Commissioner
appointed under Order 26 Rule 9 C.P.C. was considered by the learned
Trial Court. The learned Trial Court found that the defendant No.2 has
no suitable and safe accommodation at present and for such reason
construction of a new house on the suit land covering an area of 90/95
square meters is required and it will not prejudice the plaintiffs or any
other party to the suit since such parties have also constructed their
house thereon. The learned Trial Court further found that the
defendant No.2 is presently residing in a house which is in a
dilapidated condition and the learned Trial Court took into
consideration the apprehension of the said defendant that owing to
such dilapidated condition of the house there may be injury to persons
and property. The said learned Trial Court also considered the said
Report and came to the conclusion that repairing the present house of
the defendant No.2 may not be sufficient and the entire building is to
be renovated. The learned Trial Court was of the view that it was an
exceptional circumstance and, therefore, the defendant No.2 should be
permitted to complete his construction. The learned Trial Court
directed that the construction work can be done only in presence of
the Commissioner appointed by the Court and the defendant No.2 will
not encroach any further portion beyond the present area and such
construction shall be only for the purpose of the defendant No.2’s safe
accommodation and the defendant No.2 shall not be entitled to claim
any equity with regard to such construction. The learned Trial Court
gave other directions also as it appears from the said order dated
22.09.2011.
The learned lower Appellate Court considered the entire aspect
of the matter and concurred with the view of the learned Trial Court.
The learned advocate for the petitioners submits that it is
disputed that the plaintiffs constructed their own house, and no
exceptional circumstances exist for permitting the defendant No.2 to
complete his construction. As it appears from the records that both the
learned Courts below made concurrent finding with regard to the
exceptional circumstance under which the defendant No.2 was
permitted to complete his construction. With regard to such finding of
fact, this Court is not inclined to interfere with such concurrent findings
in its Revisional Jurisdiction. The learned advocate appearing on behalf
of the petitioners cited a decision reported at AIR 2005 SC 104 and
referred to paragraphs 7 and 10 of the said reports in support of his
contention that generally during the pendency of the suit status quo
should be maintained as it existed on the date of the suit and it is only
in exceptional circumstance and where irreparable damage is feared,
the Courts permit change of status quo. In the facts of the present
case, as already discussed above, both the learned Courts below have
come to the conclusion that exceptional circumstances do exist in the
present case. Therefore, the said reports cannot be of any assistance
to the petitioners in the present case.
Accordingly, this Court does not find any merit in the present
application under Article 227 of the Constitution of India. The
application is, accordingly, dismissed.
Urgent certified xerox copy of this order, if applied for by the
parties, shall be given to the parties as expeditiously as possible on
compliance of all necessary formalities.
( Tapan Kumar Dutt, J. )

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