1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4730 OF 2008 Murlidhar S/o.Mohanlal Sakla, Age-75 years, Occu-NIL, R/o.Tilak Road, Sonar Galli, Behind Kalika Mata Mandir, Nandurbar, Tq.Dist : Nandurbar PETITIONER VERSUS 1) Bhagwan S/o.Shivram Varsale Age-48 years, Occu-Labourer, R/o.Bhat Galli, Nandurbad, Tq. And Dist : Nandurbar 2) Chief Officer, Nandurbar Municipal Council, Nandurbar, Tq. And Dist : Nandurbar RESPONDENTS Mr.C.R.Deshpande, advocate for petitioner. Mr.J.R.Shah, advocate for respondent no.1. Respondent no.2 served, but absent. (CORAM : A.V.POTDAR, J.) DATE : 10/06/2009 ORAL JUDGMENT : 1. By the present writ petition, the petitioner/original defendant no.5 is challenging the order passed below Exh.36 in RCS No. 39/2008, dated 10/07/2008 under Article 227 of The Constitution of India. 2 2. Considering the small issue involved in this writ petition, Rule. Rule made returnable forthwith and the writ petition is finally heard at the stage of admission itself. 3. The factual matrix which gave rise to file the present writ petition can be summarized that the first respondent/original plaintiff have filed the suit for injunction and possession against the present petitioner and second respondent. In the said suit, as according to the first respondent, the petitioner is challenging the nature of the suit property have applied for temporary injunction under Order 39 Rule 1 & 2 of CPC which came to be allowed on merit after hearing both the sides. Subsequent to the order passed on the application for temporary injunction, an application was moved at Exh.36 to allow the petitioner to put up the plastic sheet by replacing the damaged tin sheets on the roof of the suit property as there is leakage to the existing roof of the tin sheets of the suit property. This application was opposed by the first respondent/the original plaintiff. But after hearing both the sides, the learned Lower Court gave liberty to the present petitioner to put up the plastic sheets over the existing roof of the suit property. Being aggrieved by the said order, the petitioner/original first defendant has came before this Court in the extra ordinary writ jurisdiction of this court. 4. Heard Advocate C.R.Deshpande for the petitioner followed by the arguments of Advocate Mr.J.R.Shah for the first respondent. 3 Here it is to be made clear that change of the roof by replacing the tin sheets in existence is not the structural change in the suit property. In other words, by keeping the rights of the first respondent intact and not allowing the petitioner the first defendant to do any structural changes in the property and considering the ensuing rainy season, in the interest of protection of the property also this application required to be considered on the humanitarian ground without prejudice to the rights of the parties to the suit. In the premise only on this ground alone, the application at Exh.36 be allowed by quashing and setting aside the order passed below it by the learned Lower Court vide order dated 10/07/2008. Rule made absolute as indicated above, and the writ petition to be disposed of accordingly with no order as to costs. 5. It is made clear at this stage that this permission is given to the petitioner/first defendant without prejudice to the proprietary rights of the first respondent/original plaintiff subject to giving undertaking before the Trial Court that he will remove these tin sheets at his costs if the decision of the suit will go against him. In case, he will not remove the tin sheets, he has to bear the costs of the tin sheets and in the condition as it is where it is, he has to hand over the possession of the property to the first respondent/plaintiff. With this clarification, writ petition stands disposed of. (A.V.POTDAR, J.) khs/wp4730-08