JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The present revision has been taken out by a defendant in an eviction suit, against an order by which an application filed by the petitioner for repair of the suit premises was refused on the ground that such repair would amount to re-construction of the suit premises, which was not permitted in law. 2. It may be mentioned at the outset that the application was couched as one under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. However, the nature of the prayer and the tenor of the application reveal that the same was for permission to effect repair to the suit premises and was not an application strictly under the provisions of Order XXXIX Rules 1 and 2 of the Code. 3. The present revisional application is entertained on such premise. 4. Learned counsel for the petitioner submits that it was evident from a Commissioner’s report, filed in connection with the suit, that although the suit premises was in a broken and damaged condition, it could not be said that the structure on the premises was non-existent. 5. As such, it is argued on behalf of the petitioner that the court below acted without jurisdiction in refusing repair on the perverse finding that the repair prayed for would tantamount to re-construction. 6. Learned counsel for the petitioner cites a judgment of a co-ordinate Bench reported at Shyamal Kumar Bhattacharya vs. Dilip Kumar Bose and Another, 94 CWN 950 where it was held by this Court, inter alia that under a covenant to repair, a tenant is liable to repair but not to renew. Repair in the sense means the restoration by renewal or replacement of subsidiary parts of the whole, whereas renewal as distinguished from repair means re-construction of the whole or of substantially the whole. 7. It was further held in the said judgment that replacement of any parts, including the floors or roof, or internal walls, which became defective or dangerous owing to lapse of time or the effect of elements, amounted to repair. 8. It is contended by learned counsel for the petitioner that the present case was covered by the ratio laid down in such decision. 9. 8. It is contended by learned counsel for the petitioner that the present case was covered by the ratio laid down in such decision. 9. In controverting the above arguments, learned counsel for the opposite party contended that, in the present case, the Commissioner’s report would reveal that the suit property was now almost a vacant land and whatever remnants of a previous structure were lying thereon, could not be called “premises” within the contemplation of the West Bengal Premises Tenancy Act, 1997. 10. It is further contended that the court below was within its jurisdiction to rely upon the Commissioner’s report in refusing the prayer for repair on the ground that, in the present case, repair would amount to re-construction of the premises, which was not permissible in law. 11. In support of her submission, learned counsel for the opposite party places reliance on Section 108(e) of the Transfer of Property Act, 1882, which provides as follows: “108(e). if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall at the option of the lessee, be void: Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision.” 12. It is argued on such premises that there could be subsistence of a lease where the superstructure was entirely demolished but the lease continued without such structure. 13. As such, it is contended by learned counsel for the opposite party, even while stopping short of terminating the lease without due process of law, the landlord could validly resist a re-construction of the structure, which previously stood on the suit premises. 14. Learned counsel for the opposite party cites in this context a judgment reported at Vannattankandy Ibrayi vs. Kunhabdulla Hajee, (2001) 1 SCC 564 . 14. Learned counsel for the opposite party cites in this context a judgment reported at Vannattankandy Ibrayi vs. Kunhabdulla Hajee, (2001) 1 SCC 564 . It was held by the Hon’ble Supreme Court in paragraph-23 of the said judgment inter alia that if the subject matter of the tenancy was completely destroyed on account of accidental fire and it was not possible for the tenant to use the said room any further, the tenant could not, without consent or permission of the landlord, put up a new construction on the site where the old structure stood. If it was held that despite destruction of the shed, the tenancy over the vacant land continued, unless the tenant exercises his option under Section 108(e) of the 1882 Act, the situation that emerges would be that the tenant would continue as a tenant of a non-existent building and liable to pay rent to the landlord for the room which he was unable to use. 15. As such, it was held by the Hon’ble Supreme Court that such a tenancy could not be held to continue under the said Rent Control Act, which contemplated not a vacant land but premises. 16. Placing reliance on such judgment, it is argued on behalf of the opposite party that in the present case also the suit property had virtually been rendered a vacant land and no premises now stood on the suit property and as such, the tenant could not be permitted to re-construct the premises in the garb of repair. 17. After considering the submissions of both sides, it is noticed from the relevant Commissioner’s report that the Commissioner found that the suit premises was comprised of an R.T. shed structure, mud and chitta bera wall. At the juncture when commission work was held, the said R.T. shed structure was in a totally broken condition and open to the sky and the walls of the suit premises were also totally broken and in damaged condition. In the Commissioner’s report, it is also found that some bamboos, tiles, doors and windows were lying within the suit premises. 18. In the Commissioner’s report, it is also found that some bamboos, tiles, doors and windows were lying within the suit premises. 18. A perusal of the schedule of the plaint of the eviction suit reveals that the landlord/ opposite party herself described the suit property to be comprised of one room and partly chitta bera and partly brick-built wall with pantile shed on the ground floor, together with the portion of verandah used as a kitchen together with common user and privy at the suit property. 19. It is also evident from the submission of parties and the materials on record that the repair application itself was kept pending for long four years in the trial court. Even the application for local inspection filed by the defendant/petitioner, pursuant to which the commission-in-question was held, was disposed of after about one year from its filing. As such, it is seen that the brunt of the ill fate of the petitioner ought to be fixed on the delay occasioned in court. 20. Since the proposition “Actus Curiae Neminem Gravabit” is well-settled, the petitioner could not be made to suffer for the fault on the part of the court. Moreover, in the present case, the Commissioner’s report is explicit in observing that some portions of the structure are still standing on the suit premises. The moment the Commissioner terms the condition of the suit property to be “totally damaged and broken down” such expression presupposes the existence of a structure, however dilapidated, because there needs to be some structure which is damaged and broken. 21. This apart, it is evident from the said report that portions of the suit premises, though totally broken and damaged, were still standing, which was indicated by the expression used by the Commissioner, “open to sky.” In the event there were no walls to enclose the room, there could not have been a structure with broken and damaged walls, which was open to the sky. As such, since some remnants of the suit structure still remained, at least at the point of time when the commission work took place, the remedy of the petitioner has to relate back to such date and cannot be rendered infructuous merely due to long pendency of the petitioner’s application. 22. As such, since some remnants of the suit structure still remained, at least at the point of time when the commission work took place, the remedy of the petitioner has to relate back to such date and cannot be rendered infructuous merely due to long pendency of the petitioner’s application. 22. The decision cited by the opposite party is relevant in the circumstances of the present case, since both from the schedule of the plaint, given by the plaintiff herself, and the Commissioner’s report, it was evident that a structure has all along been standing on the suit property which, though severely damaged due to vagaries of nature, cannot be said to be non-existent. 23. In such circumstances, the repair sought for by the petitioner would not amount to a renewal or re-construction of the property but would only amount to repair, however, expensive such repair might be. 24. As such, the impugned order refusing repair cannot be sustained. 25. Accordingly, C.O. No. 587 of 2018 is allowed on contest, thereby setting aside the impugned order and permitting the defendant/petitioner to carry out repair work in terms of the application for repair filed by the petitioner in the court below. 26. However, it is made clear, that such repair work will be completed within one month from this date and will be without prejudice to the rights and contentions of the parties. 27. The repair will be effected by the petitioner at his own cost and without claiming any equity in the suit premises at any point of time. 28. There will, however, no order as to costs.