CHANDI CHARAN DAN Vs. BISWAJIT DAN

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against the Order No. 236 dated 5. 8. 2006 passed by the learned Civil Judge (Senior Division), First Court, Contai, Purba Medinipurin Title Suit No. 13 of 1990 whereby he has rejected the application of the defendant No. 6 for permission to repair his residential house.

(2.) THE fact of the case in short is that the predecessor of interest of the plaintiffs/opposite parties filed the Title Suit No. 51 of 1989 subsequently re-numbered as Title Suit No. 13 of 1990 before the learned Civil Judge (Senior division), First Court, Contai, Purba Medinipur for partition of the suit properties. The original plaintiffs admitted that the defendant No. 6 got 20. 5 decimals of land in Dag No. 1745 from their father, late Upendra Nath Dan. The defendant No. 6 appeared in the suit and filed written statement and the suit is pending for trial. In the meantime, the dwelling house of the defendant no. 6 got very much damaged by heavy rains and flood of the year and so he and other members of his family are staying therein with great difficulties. For that reason, he filed an application under Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure before the learned Judge. Even he filed an application under Order 39 Rule 7 of the Code of Civil Procedure before the court below. That application was allowed and then the learned Advocate commissioner submitted his report which is marked as Annexure 'p-2'. Because of the damaged condition of his house, the defendant No. 6 has prayed for permission to repair his dwelling house and his prayer has been rejected. So the present revisional application has been filed by the defendant No. 6/petitioner.

(3.) HAVING considered the submissions advanced by the learned Advocate for the petitioner and on perusal of the record, I find that it is an admitted position that the defendant No. 6/petitioner has his dwelling house in the suit property under Dag No. 1745 and that he has been residing thereon along with members of his family. The fact that his dwelling house is very much damaged, is clear and convincing from the fact that the learned Advocate Commissioner has supported his contention. The report of the learned Advocate Commissioner clearly lays down that the mud wall of the house of the defendant No. 6 which is East-West long had been cracked from the roof to the down. The dwelling house of the defendant No. 6 is a two-storied kacha house made of earth with tin shed and the kitchen has been made with straw shed. The learned Advocate commissioner has not failed to notice that the cow shed of the defendant no. 6 is in damaged condition. It is unfortunate to note that in spite of such dilapidated condition of the house of the defendant No. 6/petitioner, the Lower court has failed to allow his application. Probably, the Court below did not grant his prayer on the ground that the learned Advocate Commissioner has noted that the dwelling house of the opposite party is not unfit for residential purpose. But in consideration of the entire report, this stray statement, I hold, is not sufficient to reject the prayer of the defendant No. 6 at all. If the dwelling house of the defendant No. 6 is further damaged by ra'in water and flood, there may be further deterioration of the damage of the house and it may be totally unfit for habitation at any time. The situation may go from bad to worse. There may happen even a worse incident which I do not like to utter. The defendant no. 6 cannot be allowed to wait till that eventually. I, therefore, hold that the learned Civil Judge (Senior Division) has failed to exercise the jurisdiction vested in him and that he has rejected the application of the defendant No. 6 without any basis and without appreciating the real situation.