1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Appeal against Order No.24 of 2010 (Sau.Meena w/o Suraj Ramani and another vs Rajesh mulchandji Baid) ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or directions Court's or Judges order or Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- Shri Nitin Lalwani, Advocate for applicants. Shri S.V.Sohoni, Advocate for respondent-sole. CORAM: K.U.CHANDIWAL, J. DATED: 23rd June, 2010 Heard learned counsel for the parties. 1. Grant of injunction restraining the defendants from carrying construction activities next to the suit window is questioned by the defendants. The inter-se description of the properties, sale deeds of the plaintiff are not in controversy. 2. The learned counsel for the applicants/appellants pointed out, in the plaint paragraph 1 the existence of lane is not disclosed to the east side, which indeed is in existence as can be gathered from the sale deed of 1985 or from the photographs tendered by the appellants herein. The other aspect criticized by the learned counsel for the appellants is, in paragraph 3, the plaintiff asserts that the disputed windows are the sole source of 2 natural light and air to the building. The counsel informs and uncontroverted, there exists windows to the east side of the property. The distance between the windows of east side and the room dimension may be a factor, to be appreciated, however that does not mean that the plaintiff should have suppressed the disclosure thereof. 3. The wall at the western side where disputed windows are in existence, prior to 1985, is acceptedly to be a common wall. The learned Judge certainly will be guided with the settled position of law indicated in the judgment of this Court reported in AIR 1938 Bombay 215( Narayan Balwant ..vs.. Shankar Waman) and also in the judgment of the Apex Court in the matter of Chapsibhai Dhanjibhai Danad ..vs.. Purushottam reported in 1971(2)SCC 205. 4. The order, if at this stage interfered with, it will be certainly deciding the suit as a whole, as the construction activities of the defendants will result in closing the existing windows at the western side. Consequently, the parties are allowed to lead evidence to establish their case, contentions in the light of the respective pleadings and documents. The order in terms of clause 3 dated 19/12/2009 allows the defendants to make construction of their building keeping a reasonable distance of 3 feet from the suit windows, which may be utilized by the defendants/appellants, if so advised. 5. At this stage, without further adverting to the merits and facts, the order under challenge remain unalter, the learned 3 Judge shall expedite the hearing and complete the trial within four months of receiving writ of this Court. The learned Judge shall not grant unreasonable adjournments to the parties and if the learned Judge finds, the plaintiff is taking undue advantage of the injunction and keen to protract the matter, the learned Judge shall be justified in vacating the injunction and to proceed with the matter. In view of aforesaid observations, the Appeal against Order is disposed of. Since, the Appeal against Order is disposed of by this order, civil applications No.26/2010 and No.82/10 do not survive and accordingly dismissed. No costs. (K.U.Chandiwal) JUDGE Andurkar