( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2374 OF 2010 Prakash s/o Onkar Patil, R/o Chawalkheda, Taluka Dharangaon, Dist. Jalgaon. PETITIONER VERSUS Sanjay s/o Pandit Wani, R/o Chawalkheda, Taluka Dharangaon, Dist. Jalgaon. RESPONDENT .... Mr. Hemant Surve, advocate for the petitioner. Mr. Vinod P. Patil, advocate for the respondent. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th June, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and by consent of learned counsel of the parties, heard finally. 2. By this petition, the petitioner challenges judgement and order dated 10th February, 2010, passed by learned District Judge, Jalgaon, in Misc. Civil Appeal No. 147/2009. ( 2 ) 3. The petitioner is original defendant and the respondent is original plaintiff. The respondent filed suit (R.C.S. No. 28/2009) for injunction, restraining the petitioner from constructing his house property so as to close down the windows which are in existence in the eastern wall of his house. The respondent is owner of a house property which is adjacent to the open plot of the petitioner. The petitioner’s open plot is situated on eastern side of the respondent’s house property. There are two (2) windows in the eastern wall of the respondent’s house. The case of the respondent is that due to proposed construction of the house property by the petitioner, those two (2) windows were likely to be closed down. Consequently, he filed suit for injunction. In his suit for perpetual injunction, he moved an application for interim injunction. The trial Court rejected his application. By the impugned judgement and order, the first Appellate Court allowed the appeal and granted prohibitory injunction against the petitioner. With the result, the construction of the house property of the petitioner is stalled. 4. Heard learned counsel for the parties. ( 3 ) 5. It is important to notice that a Court Commissioner was appointed before consideration of the application for interim injunction. The trial Court observed that the report of Court Commissioner and the map (Exh-23) was not objected by any parties. The report and the map of the Court Commissioner prima facie indicated that the proposed construction of the house property by the petitioner was not likely to close down the eastern windows of the house of the respondent. Considering the report of the Court Commissioner, the trial Court rejected the application for interim injunction. The first Appellate Court, however, observed that the two (2) windows are not covered by the defendant and as such, no prejudice would be caused to the defendant if the order is granted since all along it has been the case of the plaintiff that his right would be affected by the construction. The impugned orders appear to be outcome of defiance exhibited by the petitioner to the proposal made by the Court to furnish an undertaking. This is quite clear from following observations of the first Appellate Court. “It is pertinent to note that the Defendant committed before this Court that he may file an undertaking in that regard so that the appeal as ( 4 ) well as the suit could be disposed of. However, the defendant was not inclined to file such an undertaking. In such circumstances, I am of the view that the Plaintiff was entitled to protection of the Court by granting temporary injunction and, as such, I pass following order.” Perusal of the above observations would make it manifest that because the petitioner did not give positive response to what the District Judge wanted him to do, the impugned order was passed. This approach, it may be said, is improper. The Court has no business to impose certain conditions on a litigant, on its own and in any case if the litigant is not ready to accept the condition or the suggestion of the Court, he cannot be made sufferer only for such a reason. The Court is required to independently examine the issue and reach appropriate conclusion regarding the necessity of granting the relief. Once it is found that the construction of the house property by the petitioner was unlikely to close down the windows, the injunction could not be granted in favour of the respondent. Even assuming that the construction of the house property by the petitioner was likely to affect the easementary rights of the respondent, then also at the most, protection could be granted in order to ensure that 45 degree light and air would be available to the plaintiff ( 5 ) (respondent). 6. For the reasons aforestated, I find that the impugned judgement and order is arbitrary and unsustainable. Hence, the petition is allowed. The impugned judgement and order is set aside. The petitioner, however, shall not carry out the construction of the western side of his house, which will completely close down the windows of the respondent and shall ensure that 45 degree light and air is available to the windows and partially they are open to the said extent. The hearing of the suit shall be expedited and shall be decided by the trial Court within period of nine (9) months as far as possible. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp2374-10