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2011 DIGILAW 800 (CAL)

Dipali Das v. Swapan Chandra Konar

2011-06-17

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the order no. 24 dated January 21, 2001 passed by the learned Civil Judge (Senior Division), Katwa in Title Suit No. 104 of 2007 thereby allowing applications for local inspection filed by the defendants. The short fact necessary for the purpose of disposal of this application is that the plaintiffs/petitioners herein instituted a suit being Title Suit No. 104 of 2007 against the opposite parties for partition and other reliefs in respect of the property as described in the Schedule of the plaint. The defendants/opposite parties herein are contesting the said suit by filing a written statement. The defendants filed two applications for local inspection separately on the ground that the property in their possession requires urgent repair. Accordingly, the learned Trial Judge has allowed the applications for local inspection. Being aggrieved by and dissatisfied with the order, this application has been preferred. Now the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the material on record, I find that the suit was filed by the petitioners for partition and other reliefs. In a suit for partition, the learned Trial Judge is to pass a preliminary decree first and then the final decree after adopting certain procedures. The suit is at the preliminary stage and at that time an inspection was sought for on the ground stated. Therefore, I find that the inspection is not on the main matter to be decided at the time of trial or effecting partition by final decree of the suit property but for interlocutory purposes i.e. maintenance and preservation of the suit property. Under the circumstances, the inspection of the premises and a report thereon whether the property in suit is in dilapidated condition or not is not, at all, necessary. Therefore, I am of the view that the impugned order is not at all necessary for solving the matter in dispute between the parties with regard to the suit property. Under the circumstances, the inspection of the premises and a report thereon whether the property in suit is in dilapidated condition or not is not, at all, necessary. Therefore, I am of the view that the impugned order is not at all necessary for solving the matter in dispute between the parties with regard to the suit property. However, since the contesting defendants have contended that some portion of the suit property is in dilapidated condition and the same is likely to cause loss of life etc., I am of the view that the parties should be given liberty to file appropriate applications for repair of the property under their respective possession mentioning the schedule of work for repair and the probable costs thereon. When such an application/applications are filed, the parties should be given liberty to file objection and then upon consideration of the entire matter, the learned Trial Judge shall dispose of the application/applications to be filed accordingly. The impugned order cannot be sustained. It is, therefore, set aside. The parties to the suit are at liberty to take appropriate steps for repair of the suit property under their respective possession at an early date. The revisional application is disposed of with such orders. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.