kbp 1 4648-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4648 OF 2009 Jaywant Namdev Deshmukh and ors. ..Petitioners Vs. Namdev Yedu Chavan and ors. ..Respondents ......... Mr.N.R.Bubna, for petitioners. Mr.Dilip Bodake, for respondent no.2. ....... CORAM : A.S.OKA, J.. DATE : 15 th OCTOBER, 2009. JUDGMENT : 1] Heard submissions of the learned counsel for the parties. The parties were put to notice that the petition will be taken for final disposal at admission stage. 2] The petitioners in this petition under Article 227 of the Constitution of India are the original plaintiffs. The petitioners filed a suit for declaration that the respondents no.1 to 3 (first to third defendants) have no right, title or interest in respect of an area of 4.5 gunthas out of suit property admeasuring 9 gunthas bearing Survey No.505 and that the petitioner are the owners of the said area of 4.5 gunthas. Various other reliefs were prayed for in the said suit such as removal of encroachment allegedly made by the first to third respondents. An application for temporary injunction was taken out by the petitioners. The prayer kbp 2 4648-09.sxw in the said application was for restraining first to third respondents from making any construction or encroachment upon the property. There was another application made at exhibit 21 by the petitioners for temporary injunction. By judgment and order dated 29 th January, 2009, the trial court allowed the said application and restrained the first to third respondents from making any further construction in the existing structure. An appeal was preferred by the first to third respondents for challenging the said order. By the impugned order, the said appeal has been allowed and order of temporary injunction has been set aside. 3] Learned counsel for the petitioners invited my attention to the impugned judgment and order and submitted that the learned District Judge has not at all considered the merits of the case and he has proceeded on the footings that a permanent construction has been already made on the said property. It is submitted that without considering the merits, the appellate court should not have interfered with the impugned order. 4] Learned counsel for the first to third respondents supported the impugned order and submitted that no interference is called for. There is a reply filed by the second respondent for himself and on behalf of respondent nos.1A to 1C and respondent no.3. The photographs of the structure erected by the said respondents have been annexed to the reply. It is contended that the structure has been assessed for Gram Panchayat taxes. There is a further affidavit filed kbp 3 4648-09.sxw in which certain statements have been made which are referred to in the latter part of this order. He submitted that in view of the said statements no interference is called for with the impugned order. 5] I have given careful consideration to the submissions. Before dealing with the submissions on merits, it will be necessary to refer to the additional affidavit of the second respondent filed on 29 th September, 2009. To the said additional affidavit, a sketch has been annexed. It is stated therein that the said respondent wants to construct a bathroom admeasuring 1.20 X 2.10 meters as shown on the sketch annexed to the said affidavit. In the earlier affidavit dated 25 th August, 2009, the said respondent has stated that he only intends to carry out repairs to the existing structure and no new construction is proposed to be made. 6] Prima facie, it appears that it is an admitted position that there is an existing structure of the first to third defendants in the suit property. The learned counsel for the first to third respondents stated that first to third respondent are intending to carry out only repairs to the said structure. It is stated that except construction of a small bathroom, no other construction in vertical and horizontal direction shall be made. 7] Turning to the impugned order, the learned counsel for the petitioners was justified in contending that the appellate court has disposed the appeal by a cryptic order in a most unsatisfactory manner. The only relevant factor which is kbp 4 4648-09.sxw noted by the learned District Judge is that there is a permanent construction existing on the said property. It is true that such a cryptic judgment cannot be allowed to stand and the order of the trial court will have to be restored. However, a modification will have to me made to the order of the trial court thereby permitting first to third respondents to carry out repairs to the existing structure. A permission will have to be granted to the said respondents to construct a bathroom as stated in affidavit dated 29 th September, 2009. It is obvious that the said respondents will have to apply for and obtain a permission of the local authority before the bathroom is constructed. The local authority cannot deny the permission to the said respondents only on the ground of the pendency of the suit. It is obvious that the said respondents will not claim equity on the basis of the repair work carried out by them or on the basis of the construction of a bathroom made by them and said work will be naturally subject to the final outcome of the suit. 8] As far as merits are concerned, considering that the suit is pending it is not necessary to record detailed findings as the same may cause prejudice to the either parties. 9] Hence, I pass the following order:- a) The impugned judgment and order dated 24 th April, 2009 is quashed and set aside and the judgment and order dated 29 th January, 2009 passed by the trial court is restored. kbp 5 4648-09.sxw b) Notwithstanding the order of injunction, it will be open for the first to third respondents to carry out repairs to the existing structure. It will be open for the first to third respondents to apply for obtaining permission of the local authority for construction of a bathroom admeasuring 1.20 X 2.10 meters. After obtaining permission, it will be open for the said respondents to carry out construction of a bathroom. It is made clear that the construction of the bathroom can be made abutting the existing structure only after obtaining the permission. c) The said work of carrying out repairs and construction of the bathroom will be naturally subject to final outcome of the suit and the respondents will not be entitled to claim any equity on the basis of the said work. d) It is made clear that apart from what is permitted above, no further work of construction shall be carried out by the first to third respondents till the disposal of the suit. e) The Writ Petition is partly allowed in the above terms. f) All contentions of the parties on merits are expressly kept open. ( A.S.OKA, J. )