Dhan Lall vs Kalawathi

Madhumati Mitra, J

This is an application under Article 227 of the Constitution of India filed by the petitioner/defendant challenging the impugned order being No.21 dated August 16, 2019 passed by learned Joint Civil Judge, Senior Division, Port Blair in O.S.No.67 of 2018.

From the submission and counter submission made by the learned counsel appearing for the parties and considering the materials placed on record, it appears that the plaintiff-opposite party initiated a suit for partition of the suit property. Admittedly, the property in question is a joint property and has not been partitioned and has not yet been demarcated. It is not disputed that the plaintiff-opposite party is residing with his family in a portion of the disputed undivided property.

During the pendency of the said partition suit, the opposite party-plaintiff filed an application before the learned Trial Court under section 151 of the Code of Civil Procedure praying for permission to construct bath room and toilet in the portion where she is residing with her family. The learned Civil Judge, after hearing both the parties and considering the submissions and the contention of the parties, has passed the impugned order permitting the plaintiff-opposite party to construct bath room and toilet in the portion where the plaintiff/opposite party is residing with her family.

From the impugned order, it appears the plaintiff/opposite party filed an affidavit stating that she has been possession some portion of the suit property and there is no bath room and toilet and she and her family members have to go at public place to attend nature call.

Learned Civil Judge, at the time of passing the impugned order, directed the plaintiff-opposite party to file an affidavit within seven days from the date of the order stating that she would not claim any right or liberty in respect of the proposed bath room and toilet if it is found that said construction is made in the portion of defendant/petitioner in respect of the suit property and she would remove it at her own cost.

From the averments of the application filed before the learned Trial Court by the plaintiff praying for construction, it appears that it was specifically stated by the plaintiff that at the time of construction of the dwelling house, no bath room and toilet were constructed and plaintiff and his family members had to go toilet in public place or in the sea side which is far away from her dwelling house. It has also been stated by the plaintiff in her application that her children have grown up and it is difficult on their part to go to open public place for nature's call.

In paragraph 8 of her application under section 151 of the Code of Civil Procedure, the plaintiff stated that the Municipality of Port Blair has provided financial assistance for constructing bath room and toilet under the policy of Government of India.

Having regard to the contents of the application filed by the plaintiff before the learned Trial Court and the reasons assigned by the learned Trial Court, at the time of passing of the impugned order, I am of the view with the interest of the defendant/petitioner would not be prejudiced in any way if the bath room and toilet are constructed. Moreover, the power of the Court under Article 227 of the Constitution of India can be exercised and the order of Trial Court can be set aside only where there has been an error of jurisdiction on violation of law.

Interference under Article 226 of the Constitution of India is permissible only if there exists an error apparent on the face of the record or the Judge concerned failed and neglected to take into consideration the relevant factors.

In the present case, it appears that learned Judge has considered all the relevant factors while considering the prayer of the plaintiff/opposite party.

In view of above, I do not find any reason to interfere with the impugned order. As a result, the revisional application being C.O.No.045 of 2019 is devoid of merit and stands dismissed.

Certified copy of this order be immediately made available to the parties subject to compliance with all requisite formalities.