: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4098 OF 2007 CIVIL APPLICATION NO.4098 OF 2007 CIVIL APPLICATION NO.4098 OF 2007 IN IN IN FIRST APPEAL NO.936 OF 2004 FIRST APPEAL NO.936 OF 2004 FIRST APPEAL NO.936 OF 2004 Sayyed Rafiq Kayasuddin ...Applicant V/s. Jagdiah Anant Bandodkar & Ors. ...Respondents Mr.M.U. Pandey, Advocate, for the Applicant. Mr.H.S.S. Murthy, Advocate, for Respondent No.1. Mr.J.J. Xavier, Advocate, for Respondent No.2. Ms.G.P. Mulekar, AGP, for Respondent Nos.3 to 5. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. DATE : 28TH MARCH, 2008. P.C.: P.C.: P.C.: 1. Not on board. Taken on board. 2. Heard Advocates appearing for the parties. Perused the photographs annexed to the affidavit dated 3rd October, 2007 filed by the constituted attorney of the applicant. The learned Advocate for the applicant has tendered on record affidavit dated 28th March, 2008 of the constituted attorney of the applicant. In paragraph No.2 of the affidavit, it is stated thus:- "2. I say that one side wall of the suit structure is the compound wall of : 2 : the adjoining property. I say that on three sides the Petitioner shall replace the wooden poles of the same height and above that he shall replace the Tarpaulin Sheet supported by wooden sticks poles. I further say that in the event the Hon’ble Court directs the Petitioner to carry out the repairs with any other construction material he is ready and agreeable to do." 3. Though permission deserves to be granted to carry out repairs to the existing structure, the same will have to be subject to compliance with the various conditions. 4. Hence, Civil Application is disposed of by passing following order:- "O R D E R" "O R D E R" "O R D E R" (a). The applicant is permitted to carry out repairs to the existing structure only by replacing the old wooden poles by new wooden poles and by replacing the plastic sheet by tarpaulin sheet which will be supported by the wooden poles. However, the applicant will not alter the existing size of the structure in dispute. The applicant will not carry out any brick work while carrying out the repairs. : 3 : The repairs will be confined to replacing the wooden poles and replacing the plastic sheets by the tarpaulin sheets. (b). The permission is granted subject to condition that on the basis of this order, the applicant will not be entitled to claim any equity in his favour and the repair work which will be carried out to the suit structure will be naturally subject to final outcome of the Appeal. (c). In case the applicant commits any breach, it will be open for the respondents to take out appropriate proceedings in that behalf. The undertaking of the applicant incorporated in the second sentence of paragraph No.3 of the affidavit dated 28th March, 2008 is accepted. The statements made by the applicant in the affidavit are accepted. (d). There will be no orders as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]