1 WP 1998/10 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1998 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Milind Deshmukh for the petitioner. Mr. R.D. Suryawanshi for the respondent. CORAM : D.G. KARNIK, J. DATE : 28TH JULY 2010 P.C. : 1. Heard. 2. Rule. By consent, Rule is made returnable forthwith. 3. Heard counsel for the parties. 4. The respondent filed a suit against the petitioner for an injunction restraining him from carrying out the construction over the suit property alleging that it was a joint family 2 WP 1998/10 property. In the suit, the respondent did not claim the relief of partition. The suit was merely for injunction. There was an old structure in the suit property which was occupied by the petitioner for his residence. After demolishing the structure, he started construction of the new structure for his residence. Till the old structure was demolished, the respondent did not take any action and only when the new construction was started that the respondent filed the suit for restraining the petitioner from carrying out the new construction. Injunction was refused by the trial court but was granted by the appellate court. 5. In this petition, the petitioner has given an undertaking that he would not claim any equities in respest of the new structure and also would not create any third party interest therein. In such circumstances, permission can be granted to the petitioner to carry out the 3 WP 1998/10 new construction. Balance of convenience is clearly in favour of the petitioner who has demolished the new structure and is re-erecting it. If new structure is not allowed to be constructed, he would have no premises to live in. Conduct of the respondent is also not appreciable. He allowed the petitioner to demolish his old structure without raising any objection and appears to have filed the suit only after allowing the petitioner to alter his position. 6. It may be noted that pending the present suit, the respondent has also filed a separate suit for partition without withdrawing the present suit. Thus, he is pursuing two suits in respect of the same property simultaneously. This also shows his intention to drag the petitioner to the Court in different litigations in respect of the same property. 7. For these reasons, the impugned order is 4 WP 1998/10 set aside and the order of the learned trial Judge is restored by accepting the undertaking filed by the petitioner in this Court dated 20 April 2010, copy of which has already been furnished to the respondent’s advocate. 8. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)