IMPORTANT POINT
The right to live in safe conditions and the consideration of changes in circumstances during the pendency of a suit were central legal principles established in the judgment.

JUDGMENT :

Biswaroop Chowdhury, J:

1. The petitioners before this Court are defendants in a suit for partition, and is aggrieved by the Order dated 04-03-2022 passed by Learned Civil Judge (Senior Division) Diamond Harbour in T.S. 168 of 2011 in rejecting the petitions dated 29-07-2016 filed by them for construction upon the suit property.

2. The case of the petitioners before the Learned Trial Court may be summed up thus.

3. By an application dated 29/07/2016 the Petitioner no-1 made application for constructing rooms with brick wall and concrete roof in place of Room No.1 and 1A and the petitioner no – 2 has prayed for removing the tiles and asbestos shed from the said room no-3 and 4, and to lay concrete roof therein and to construct a first floor therein. As there was commission of the suit property prior to filing of the said application, the said reports were taken into consideration by the Learned Court below. The inspection report dated 11.04.2016 reflects that room number 1 having mud wall and asbestos shed is in dilapidated condition and its measurement is 41’19’. It is further stated in the report that room No 1A is measuring 10’9’ and is also in a dilapidated condition. It also appears from the report of the Commissioner that on the eastern side of the said rooms there are four other rooms numbered as 3, 4, 6 and 8 respectively of which the room no. 3 lies in between room Nos. 4 and 8.

4. Upon considering the reports of the commissioner dated 14-03-2016, 19-12-2011 and 13-12-2021 the Learned Trial Court was pleased to reject the prayer of the petitioners by observing as follows:

5. ‘It is therefore, prima facie clear before the Court that without permission of the Court and without any sanctioned building plan such construction work has already been undertaken by the defendant Nos 1 and 2. Hence I find much force behind the argument advanced by the Learned Advocate for the plaintiffs that the defendants Nos 1 and 2 are simply trying to legalize such illegal construction by obtaining order of Court. The above mentioned judgment of the Hon’ble High Court is also found applicable to the situation in hand and as such I am of the considered view that the defendant Nos 1, and 2 having approached the Court with unclean hand are not entitled to any permission to do any construction work upon the suit property’.

6. Hence it is Ordered that the prayer for acceptance of additional W.S. by the defendant no 1, 2 and 3 is allowed on contest. The additional W.S. filed by the defendant No1, 2 and3 be accepted subject to payment of cost of Rs. 500/-to the plaintiffs.

7. Both the petitions dated 29.07.2016 filed by the defendant nos 1 and 2 respectively for construction upon the suit property are considered and rejected on contest without any cost.

8. To 12.4.2022 for showing payment of cost and framing of issues.’

9. The petitioners being aggrieved by the Order dated 04.03.2022 passed by Learned Civil Judge (Senior Division) Diamond Harbour in T.S. 168 of 2011 has come up with the instant application under Article 227 of the Constitution of India.

10. It is contended by the petitioners that the Learned Judge erred in law in not considering the urgency in the matters as pleaded in the two applications dated 29.07.2016 and the Order of this Hon’ble Court in CO No-2304 of 2019, before rejecting the same. Petitioners have further contended that the Learned Court below should have gone through the letter of the Pradhan before rejecting the prayer of the petitioners as contended in two applications dated 29.07.2016. It is further contended that the petitioners are facing serious hasdship with their family members and if such permission as prayed for is not granted petitioners will suffer irreparable loss and injury. Pursuant to the filing of the application notice was issued upon the opposite parties. As none appeared for the opposite parties inspite of service of notice the matter was taken up for hearing in the absence of the opposite parties.

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