1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5616 of 2008 Manda @ Nirmala Shamrao & Ors. .. Petitioners versus Vitthal Yallappa Lohar .. Respondent ... Mr.S.A. Sawant for the petitioners. CORAM : A.M.KHANWILKAR, J DATED : 29th August 2008 P.C.: 1. In the writ petition, although two separate orders have been challenged, however, at the hearing, counsel for the petitioner states that the petitioner may be permitted to withdraw the writ petition filed against the order dated 24th June 2008 passed below Exhibit-34 in RCS No.3 of 2008 as the petitioner will have to avail of remedy of revision against the said order. 2. In the circumstances, petition is allowed to be withdrawn to the extent of challenge to order 2 dated 24th June 2008 passed below Exhibit.34 with liberty to file revision application as prayed. Revision Application be decided on its own merits in accordance with law. 3. In so far as challenge to order dated 21st June 2008 passed below Exhibit-21 is concerned, no fault can be found with the opinion recorded by the trial court - that order passed by it on 8th January 2008 below Exhibit-11 was not challenged. If that order was allowed to operate, the respondent- plaintiff was entitled to carry on repairs to the suit property. However, the grievance of the plaintiff was that the petitioner was obstructing the plaintiff to carry out repairs. To address that grievance relief has been granted by the trial court in terms of the impugned order dated 21st June 2008 passed below Exhibit.21. That was the natural order to be passed in that situation. 4. The grievance of the petitioner however is that although the court had permitted the plaintiff only to carry out repairs, in the guise of that order, the plaintiff was actually erecting new structure. My attention is invited to averments filed before the trial court on behalf of the petitioner in this behalf. However, it appears that 3 this grievance was not canvassed before the trial court for which reason the trial court has not addressed itself on that aspect. The petitioner will be free to bring to the notice of the trial court that the plaintiff was in fact carrying on new construction and not confining to the repairs of the suit property which was the limited relief given to the plaintiff in terms of order dated 8th January 2008 passed below Exhibit.11. If the petitioner is able to substantiate that position, there is no doubt that the trial court will pass appropriate orders as may be advised. All questions in that behalf are left open to be decided on its own merits by the trial court. 5. Petition is disposed of on the above terms. 6. In the event, the petitioner does not produce any order of this court in relation to the view taken by the trial court in the order dated 24th June 2008 below Exhibit.34, within six weeks from today, the trial court will be free to decide the application for interim relief Exhibit-5 on its own merits in accordance with law as expeditiously as possible so as to put at rest all controversy in that behalf. 4 (A.M.KHANWILKAR, J)