1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4849 OF 2009 WRIT PETITION NO.4853 OF 2009 WRIT PETITION NO.4891 OF 2009 Dilip Vadilal Sanghavi ...Petitioner (in all petitions) vs. Navin Bachubhai Parekh & Ors. ...Respondents (in all petitions) Mr.Jayesh Bhatt for the petitioner Mr.R.M.Haridas for the respondent no.1 CORAM :A.S.OKA,J. DATE : SEPTEMBER 29, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the first respondent. An application for injunction was made by the first respondent in an Appeal preferred by the petitioner and the respondent nos.2 and 3 restraining the petitioner and respondent nos.2 and 3 from creating third party interests and from inducting any third party in the suit premises till the disposal of the appeal. The decree for possession has been passed in favour of the first respondent which has been stayed till the disposal of the appeal. 2 The grievance of the learned counsel for the petitioner is that though the petitioner was unwilling to continue the undertaking given by him which was to operate only up to a particular date, by the impugned 2 order, he was forced to continue the undertaking till the disposal of the appeal. He submitted that various defences and contentions have been raised by the petitioner and the respondent nos.2 and 3 which have not been considered. 3 The learned counsel for the first respondent submitted that what has been done by the Appellate Court is only to ensure that the appellants in the pending appeal should not create any third party interests and should not part with possession and therefore, no case is made out for interference. 4 I have considered the submissions. The impugned order reads thus : Without granting specific injunction order undertaking filed by the appellant no.2 is extended till disposal of the appeal. Appellant is to abide undertaking. Appeal is expedited. 5 It is a matter of record that the undertaking given by the petitioner was to operate up to a particular date. If the petitioner was not desirous of continuing the undertaking, while deciding the application under Rule 1 and 2 of Order XXXIX of the said Code, the court cannot compel him to continue the undertaking. If the petitioner was unwilling to continue the undertaking, the 3 court ought to have decided the application on merits. The direction given by the Appellate Court that undertaking given by the petitioner which was operating up to a particular date will continue to operate till the disposal of the appeal is completely erroneous and the same deserves to be quashed and set aside. However, the application for temporary injunction made by the first respondent will have to be heard on merits as the petitioner is unwilling to continue the undertaking. 6 Hence, I pass the following order : i) Impugned Judgments and orders are quashed and set aside. Applications for injunction made by the first respondent are restored to the file of the Appellate Court and the Appellate Court will decide the said applications expeditiously and preferably on or before 30 th November 2009. ii)Till the applications made by the first respondent are heard, the petitioner and the respondent nos.2 and 3 will not create any third party interests in respect of the suit premises and will not part with possession of the suit premises. iii)Writ petitions are partly allowed in above terms. JUDGE