1 WP 2732/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2732 OF 2010 Mehboob Rasul Nejkar .. Petitioner V/s Nanasaheb Khutub Nejkar .. Respondent Mr. Surel S. Shal for the petitioner. Mr. V.A. Shastry i/b Mr. R.S. Kulkarni for the respondent. CORAM : D.G. KARNIK, J. DATE : 9TH AUGUST 2010 P.C. : 1. Heard. 2. By this petition, the petitioner challenges the order dated 3 March 2010 passed by the learned District Judge­1, Ichalkaranji, dismissing the petitioner’s application for interim injunction. 3. The petitioner and the respondents are cousins. The petitioner owns a land on the western side and the respondent owns a land on the eastern side. The petitioner initially obtained the right of way through the petitioner’s land as an easement of necessity and filed a suit which was dismissed. The order of 2 WP 2732/10 dismissal was confirmed upto the High Court. It appears that during the pendency of the previous litigation, the petitioner and the respondent settled their dispute and the respondent agreed to grant to the petitioner a right of way by way of grant subject to certain conditions. The conditions were that the petitioner would withdraw the objection he had raised before the Municipal Council about the respondent’s proposed construction and that he would also not raise any objection to the powerloom shed of the respondent. 4. After dismissal of the second appeal in the first suit, the petitioner filed a second suit claiming easement by grant for use of the suit road on the basis of the agreement. Therein he made an application for interim injunction. The application was resisted by the respondent saying that the petitioner had not complied with the conditions of the grant. He had not withdrawn the objection which he had raised before the Municipal Council and was still objecting the construction of the respondents. The respondent, therefore, filed written statement making counter claim for cancellation of the agreement, inter alia, on the ground of breach. 3 WP 2732/10 5. Before me, it is not disputed that the petitioner has not complied with the conditions and in particular condition contained in nos.7 and 8 of the agreement by which he claimed easement by grant. Counsel fairly stated that the petitioner has not withdrawn his objection raised before the Municipal Council till date. He however submitted that the petitioner is now willing to withdraw the objection raised before the Municipal Council. The submission is too late in the day. The petitioner has not complied with the conditions of grant. The respondent has already made a counterclaim for revocation and cancellation of the agreement. The petitioner cannot claim equitable relief of injunction by taking unfair advantage and continue to obstruct the respondent’s construction and still claim a right of way through his land which was proposed to be granted as a condition for his withdrawal of objection for construction. There is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)