Calcutta High Court: In a revisional petition challenging the trial court’s order rejecting petitioners’ plea for repairing the suit property, a single-judge bench comprising of Biswaroop Chowdhury,* J., while recognising the “basic right of every person to live in a house peacefully, comfortably and safely”, appointed an Advocate Commissioner to inspect the suit premises and submit a report. The application for repairs is remitted back to the trial court for reconsideration based on the Commissioner’s findings.
Brief Facts
In the instant matter, the petitioners, are defendants in a Title Suit for khas possession, seeks ermission for urgent repairing work to address damages to the Bengal Style ‘Kore-Barga’ roof and walls of the suit premises. The petitioners reside in the suit premises for an extended period and previous construction and repairs were undertaken by them in the suit premises. The suit property is in a dilapidated state due to natural disasters, particularly after the Amphan Cyclone. The trial court vide order dated 10-11-2022 rejected their plea under Section 151 CPC for repairing the suit property. Aggrieved by the impugned order the petitioners preferred the present appeal challenging the impugned order.
Parties’ Contentions
The petitioners, residing in the suit premises for 40-45 years, claimed damages due to the dilapidated condition after the Amphan Cyclone. It was contended that there is urgent need to repairs due to the building’s dilapidated state, which is also supported by the admission of poor conditions by the opposite party-plaintiff 1 in cross-examination. On the other hand, the opposite parties alleged the repair petition as a delay tactic, citing the absence of evidence, late filing, and questioning the authenticity of photos.
Court’s Assessment
The Court acknowledged the basic right of every person to live in a house peacefully, comfortably, and safely. The Court also acknowledged the obligation to preserve the property in accordance with the law. The emphasised on the occupants’ right to take steps for the comfort and building’s safety at their own cost, without prejudice to the pending legal dispute.
“A property may be subject matter of dispute where proceedings are pending in Court but so long persons are occupying the said property/building first of all the said property has to be preserved in accordance with law, secondly the persons residing in the said property cannot be compelled to live in an unsafe condition where there is reasonable apprehension of risk and damage. As a person cannot be evicted from a property save and except by due process of law similarly a person while residing in a particular building cannot be compelled to reside with risks and he has right to take steps with regard to the said building for his own comfort and safety at his own costs which will be without prejudice to the subject matter of dispute if pending in Court.”
The Court recommended the appointment of an Advocate Commissioner to inspect the premises and submit a report. The Court instructed the Commissioner to take photographs and consult a Registered/Panel Engineer if needed. The Court directed the report to be submitted within 3 weeks of reopening of the trial court after winter vacation. The Commissioner, whose remuneration is set at Rs. 7,000 to be borne by the petitioners, is also authorised to incur additional costs.
Court’s Decision
The Court allowed the revisional petition and remitted the matter to the trial court for reconsideration upon submission of the Commissioner’s Report. The impugned order dated 10.11.2022 is set aside.
[Sukumar Dutta v. Shankar Manna, 2023 SCC OnLine Cal 5614, order dated 22-12-2023]
*Judgment by Justice Biswaroop Chowdhury
Advocates who appeared in this case :
Mr. Sukanto Chakraborty and Mr. Zubir Ahmed, Counsel for the Petitioners
Mr. Surya Prasad Chattopadhyay, Mr. Abir Lal Banerjee and Mr. Ankit Chatterjee, Counsel for the Opposite Party
