1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 134 OF 2010 IN WRIT PETITION NO. 4061 OF 1999 Birbal Gopal Deshmukh, since deceased by his heirs and legal representatives : 1A. Smt. Chingabai w/o. Birbal Deshmukh & Ors. .. Applicants. Vs Sau. Pushpa wife of Vinayak Shende & Ors. .. Respondents -- Shri Sanjay D. Thokade for the Applicants. Shri Mandar Soman i/by Shri T.D. Deshmukh for the Respondents. -- CORAM : A.S.OKA, J. DATE : 10TH MARCH, 2010 P.C: . Heard learned counsel appearing for the parties. This application has been made by the Petitioners in the Writ Petition. The Petitioners in the Writ Petition are the tenants in a suit filed by the Respondents. The prayer in this Application is for permitting the Applicants to carry out repairs to the suit premises. The photographs showing dilapidated condition of the premises are annexed to the Application. The Application is opposed by the Respondents. The Respondents have filed an affidavit. The Paragraphs 2 and 4 of the said Affidavit read thus:- 2 “2. As far as contents of para No.1 are concerned the same are not true and correct. I say that the applicants have caused damage to the suit property from the inside portion of the suit property in their possession and creating danger to the adjoining wall of our property. It can be seen from the photographs annexed and marked as EXHIBIT “A” to this reply portion of roof coverage ( वरवंडी) is damage from the internal side of the suit premises by the applicants. Thus, the applicants are trying to cause damage to suit property themselves and trying to seek the direction for repairs. 3. xxx xxx xxx 4. The contents of next para of said civil application (wrongly typed as para No.5 ), I say that under the pretext of tenable repairs to repair the wooden support of the roof, the applicants want to make permanent construction of portion of roof coverage ( वरवंडी) which is damaged from the internal side of the suit premises by the applicants themselves, only with a view to cause to damage to our adjoining wall of our other property. Therefore, the applicants cannot be permitted to make the repairs as prayed for.” 2. Today, an undertaking is filed by the Applicant No.1D for himself and on behalf of other applicants. In Paragraph 3 of the undertaking, it is stated that no permanent construction will be carried out and while carrying out repairs to the wooden support of the roof, no damage would be caused to the adjoining common wall. In the Civil Application, a statement has been made that if repairs are permitted to be carried out, the Applicants will not claim equity. 3 3. In view of the undertakings tendered today and in view of the fact that the Applicants are admittedly in possession, permission deserves to be granted to the Applicants to carry out repairs. 4. Hence, the Civil Application is disposed of by passing the following order. (a) The Civil Application is allowed in terms of prayer clause (b) subject to condition of abiding by the undertaking incorporated in Paragraph 3 of the affidavit tendered today. (b) It is obvious that the Applicants will not be entitled to claim any equity on the ground that they are permitted to carry out repairs. (c) In the event of any breach is committed by the Applicants of the undertaking tendered today, it will be open for the Respondents to file appropriate proceedings. (A.S.OKA, J)