1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1924 OF 2007 Bhalchandra @ Baburao Raoji Shinde ..Petitioner V/s. Prakash Shamrao Wakundkar & Ors. ..Respondents ---- Mr.P.G.Chavan for the petitioner. Mr.P.S.Bhavala i/by N.V.Bandiwadekar for respondent nos.1 & 2. Mr.N.S.Sonawane i/by S.S.Patwardhah for respondent no.4. ---- Coram : R.S.MOHITE,J Date : 13th July, 2009. PC 1 Heard all parties. Admit. By consent, the matter is taken up for hearing. 2 The plaintiff has filed the suit seeking a mandatory injunction against defendant nos. 1 & 2 for reconstructing floor mill which is situated in the area 20 feet x 15 feet. As regards the same floor mill, Kolhapur Municipal Corporation which is respondent no.4 has issued a notice dated 8.11.2005 informing the plaintiff and defendant no.1 that the structure in question which is situated in CTS No.537 has become dilapidated and is likely to collapse. Since this notice is challenged, the plaintiff has filed this application in his suit for permission to repair structure. Since this application was rejected, the present Writ petition has come to be filed. 2 3. It is seen from the impugned order that the plaintiff is claiming title by virtue of an agreement dated 20.1.1961 between one Anusaibai and his father. After Anusaibai died, her daughter Sonabai filed a suit for eviction under the Rent Control Act. The said suit was decreed in the year 1976. A darkhast application was thereafter filed by present defendant Nos.1 & 2 claiming to be the heirs of Sonabai. That darkhast was dismissed for default on 30.9.2002. The trial Court has observed that by the dismissal of the darkhast the rights of defendant nos.1 & 2 do not come to an end. Be that as it may, the Court is not concerned with those rights of the parties in the present suit. The Corporation has given a notice for repairs on the footing that the structure is dilapidated and is likely to collapse. The plaintiff as an occupant would be the party who will suffer in case the building collapses for want of repairs. In such circumstances, the question of his title is not of much relevance. During the hearing, learned Advocate for the plaintiff stated that if he is allowed to carry out the repairs as per the notice of the Kolhapur Municipal Corporation, then the plaintiff will not put up any additional construction and will withdraw the suit. He further states that it can be clarified that the repairs which he will carry out will be without prejudice to the rights of defendant nos.1 & 2 to apply for restoration of the darkhast or to execute the decree in accordance with law. In this view of the matter, Writ petition is disposed off in the following directions :- (A) The plaintiff is allowed to repair the suit structure but it is made clear that while doing so, he will not carry out any new construction ; (B) The effecting of such repairs will not confer upon the plaintiff any equitable rights ; 3 (C) That the carrying out of the repairs will be without prejudice to the rights of defendant nos.1 & 2 to apply for setting aside the dismissal of their darkhast or to execute the decree passed in RC Suit No.946 of 1976, in accordance with law ; (D) On an application made by the Advocate for the plaintiff, in view of the aforesaid directions, RC Suit No.835 of 2005 is allowed to be withdrawn. The plaintiff will be entitled to refund of court fees as per rules. Writ petition stands disposed off. It is made clear that parties will be entitled to raise all contentions which they were entitled to raise in the darkhast application. It is further made clear that if the repairs are not effected within six months from today, the Corporation will be entitled to send a fresh notice and take further steps in accordance with law. ( R.S.MOHITE, J. )