1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 6845 OF 2009 Shri Babaji Kondiba Nanekar. .. Petitioner Vs Shri Raghu Kondiba Nanekar & Anr. .. Respondents -- Shri Girish Paryani for the Petitioner. Shri G.S. Godbole i/by Shri Ditendra Mishra and Ramesh Lokhande for the Respondents. -- CORAM : A.S.OKA, J. DATE : 11th February, 2010. P.C.: . Heard Learned counsel appearing for the parties. A challenge in this Writ Petition under Article 227 of the Constitution of India is to an order dated 9th July, 2009 passed by the District Court in an appeal preferred by the Respondents. The Petitioner is the original Plaintiff. The Petitioner filed a suit for injunction against the Respondents in respect of the property more particularly described in Paragraph 1 of the Plaint. In the Plaint, it was contended by the Petitioner that the first Respondent is his real brother and the 2nd Respondent is his uncle. It is stated that the father of the Petitioner died in the year 1995 and he is survived by five sons and three married daughters. It is alleged that during the lifetime of the father, there was a partition effected of the family properties but the suit property continued to be joint between the parties and it was intended to 2 be used jointly for religious ceremony. The allegation is that the Respondents started demolition of a house on the suit property with a view to construct a new house. That is the cause of action pleaded for filing a suit. In the said suit, an application for temporary injunction was made by the Petitioner which was opposed by the Respondents. It was contended that the suit property has not been partitioned. It was contended that the Petitioner ought to have filed a suit for partition. 2. The trial Court granted temporary injunction restraining the Respondents from carrying out construction on the suit property. By the impugned judgment and order, the Appellate Court has interfered on the ground that the other co-sharers have not been made parties to the suit. The Appellate Court observed that the photographs produced on record show that the house on the suit property has already been demolished. 3. The learned counsel appearing for the petitioner submitted that even according to the case of the Respondents, the suit property is a joint property and, therefore, without consent of the Petitioner and other co-sharers, the Respondents could not have demolished the house on the suit property. He submitted that the suit simplicitor for temporary injunction was maintainable and it was for the Respondents to file a suit for partition. The learned counsel appearing for the Respondents submitted that admittedly the suit property is a joint family property and a suit simplicitor for temporary injunction has been filed after the Respondents 3 have demolished the existing house in their possession. He submitted that admittedly the first Respondent has undivided share in the suit property and by filing a suit simplicitor for injunction, the Petitioner cannot prevent the first Respondent from re-erecting the house which has been demolished. The learned counsel appearing for the Respondents has tendered an undertaking of the 1st Respondent as well as the undertaking of the 2nd Respondent given through his Constituted Attorney along with a true copy of the power of attorney. 4 I have carefully considered the submissions. The case of the Respondents is that the old house on the suit property has been pulled down with a view to construct a new house. In the undertakings, the Respondents have stated that if they are allowed to carry out and complete the construction of the suit house, they will not create any third party rights and interests in respect thereof and will not part with possession of the same. They have stated that they will not claim equity on the basis of the construction of new house and that the construction of the new house will be subject to the final outcome of the suit. 5. The Appellate Court has declined to grant discretionary and equitable relief of temporary injunction to the Petitioner. Admittedly the old house in existence has been demolished and the same is sought to be re-constructed by the Respondents. In view of the undertakings, if the Respondents re-erect the house, the Petitioner will be sufficiently protected. 4 The undivided share of the Petitioner is not disputed by the Respondents in the reply filed at Exhibit – 5. In view of the undertakings and in view of the findings recorded by the District Court, no interference is called for with the impugned order. Hence, the Writ Petition is disposed of by passing following order. (a) The undertaking of the 1st Respondent is marked “X” for identification and the same is accepted. (b) The undertaking of the 2nd Respondent given through his Constituted Attorney Shri Laxman Govind Nanekar is marked “Y” for identification and the same is accepted. (c) Subject to what is observed above, no interference is called for. The Writ Petition is rejected. (d) All contentions of the parties on merits of the pending suit are kept open. (A.S.OKA, J) ash