The petitioners, as plaintiffs, have filed a suit for partition and in such suit, the Trial Court has passed an order of status quo in respect of the suit property till the disposal of the suit. The defendant No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for modification of the said order of status quo and the learned Trial Court after hearing both the sides ultimately permitted the said defendant No.2 to complete his construction by order dated 22.09.2011.

IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT PORT BLAIR … CR No.005 of 2012 ( Mrs.P.Omana & ors. Vs. Mr.P.Sivan & Ors.) Mr.Arun S. Kumar ... for the petitioners Mr.Krishna Rao … for respondents January 18, 2012 The petitioners, as plaintiffs, have filed a suit for partition and in such suit, the Trial Court has passed an order of status quo in respect of the suit property till the disposal of the suit. The defendant No.2 in the suit filed an application under Order 39 Rule 4 C.P.C. for modification of the said order of status quo and the learned Trial Court after hearing both the sides ultimately permitted the said defendant No.2 to complete his construction by order dated 22.09.2011. The said order dated 22.09.2011 was challenged by the petitioners in Misc. Appeal No.20 of 1011 before the learned District Judge, A & N Islands. The learned District Judge by the impugned order dated 13.01.2012 affirmed the said order dated 22.09.2011 and dismissed the Misc. Appeal. On perusal of the order dated 22.09.2011 passed by the learned Trial Court, it appears that a Report of the Commissioner appointed under Order 26 Rule 9 C.P.C. was considered by the learned Trial Court. The learned Trial Court found that the defendant No.2 has no suitable and safe accommodation at present and for such reason construction of a new house on the suit land covering an area of 90/95 square meters is required and it will not prejudice the plaintiffs or any other party to the suit since such parties have also constructed their house thereon. The learned Trial Court further found that the defendant No.2 is presently residing in a house which is in a dilapidated condition and the learned Trial Court took into consideration the apprehension of the said defendant that owing to such dilapidated condition of the house there may be injury to persons and property. The said learned Trial Court also considered the said Report and came to the conclusion that repairing the present house of the defendant No.2 may not be sufficient and the entire building is to be renovated. The learned Trial Court was of the view that it was an exceptional circumstance and, therefore, the defendant No.2 should be permitted to complete his construction. The learned Trial Court directed that the construction work can be done only in presence of the Commissioner appointed by the Court and the defendant No.2 will not encroach any further portion beyond the present area and such construction shall be only for the purpose of the defendant No.2’s safe accommodation and the defendant No.2 shall not be entitled to claim any equity with regard to such construction. The learned Trial Court gave other directions also as it appears from the said order dated 22.09.2011. The learned lower Appellate Court considered the entire aspect of the matter and concurred with the view of the learned Trial Court. The learned advocate for the petitioners submits that it is disputed that the plaintiffs constructed their own house, and no exceptional circumstances exist for permitting the defendant No.2 to complete his construction. As it appears from the records that both the learned Courts below made concurrent finding with regard to the exceptional circumstance under which the defendant No.2 was permitted to complete his construction. With regard to such finding of fact, this Court is not inclined to interfere with such concurrent findings in its Revisional Jurisdiction. The learned advocate appearing on behalf of the petitioners cited a decision reported at AIR 2005 SC 104 and referred to paragraphs 7 and 10 of the said reports in support of his contention that generally during the pendency of the suit status quo should be maintained as it existed on the date of the suit and it is only in exceptional circumstance and where irreparable damage is feared, the Courts permit change of status quo. In the facts of the present case, as already discussed above, both the learned Courts below have come to the conclusion that exceptional circumstances do exist in the present case. Therefore, the said reports cannot be of any assistance to the petitioners in the present case. Accordingly, this Court does not find any merit in the present application under Article 227 of the Constitution of India. The application is, accordingly, dismissed. Urgent certified xerox copy of this order, if applied for by the parties, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. ( Tapan Kumar Dutt, J. )