1 908-caw-1605-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj CIVIL APPLICATION NO.1605 OF 2011 IN WRIT PETITION NO. 4594 OF 2005 Shri Sitlaprasad Gupta thorough C.A. Shri Ramprasad H. Gupta .. Applicant. V/s. Shri Ramesh B. Chandan (since deceased) through his Legal Heirs & Others .. Respondents. Mr. Amogh Karandikar i/b. M/s.Khandeparkar & Associates, for the Applicant. Mr. P. N. Joshi, for Respondent Nos.1A to 1D. CORAM : G.S.GODBOLE, J. DATE : 8th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 Perused the application and the affidavit in reply. The Writ Petition is admitted and interim stay has been granted on 26th October, 2005. The Application is made essentially for repairs of the small shed 2 908-caw-1605-2011.sxw which is the suit premises. Advocate for Applicant states that the Applicants desires to carry out following repairs:- (a) replacement of rotten / decayed/ broken wooden planks/ rafts which are the base of the suit shed; (b) replacement of rotten tin sheets being roof and/or walls of the suit shed; (c) replacement/ repairs of the rotten supports to the tin sheets of the roof which are wooden bullies. 3 The learned Advocate for the Applicant states that even if Applicant is allowed to carry out the said repairs, the Applicant will not claim any equity whatsoever and will not :- (a) claim that the original suit premises no longer exists and new premises have come into existence; (b) claim that on account of the repairs being permitted, the said Applicant is no longer bound by the decree for eviction which has been passed by the District Court. (c) claim any equities or make any claim about the legality of the said old structure or the one that would come into existence by the order permitting repairs. 4 The learned Advocate for Respondent Nos. 1A to 1D opposes 3 908-caw-1605-2011.sxw this application on various grounds including the ground that premises do not require repairs and that the Applicant has no right in the suit premises and has been held to be a sub-tenant and that the Applicant will claim equities on the basis of this order. 5 I have carefully considered the submissions. Writ Petition is admitted and possession of the Applicant is protected by interim order. Applicant is carrying on business in the suit premises. The correctness of the photographs annexed to the Civil Application is not disputed. In fact, the learned Advocate for Respondent Nos.1A to 1D relied on photographs taken by said Respondents which also indicate that the said shed is not in a dilapidated condition. Hence, according to me, no prejudice will be caused to the said Respondents if the Applicant is allowed to carry out the repairs referred in paragraph 2 sub-paras (a) to (c) above, subject to Applicant personally filing an undertaking in this Court incorporating the statements as noted in paragraph 3 above. 6 Hence, I pass the following order:- (i) RULE is made absolute in terms of prayer clause (a), with a clarification that the Applicant is permitted to carry out only the following repairs entirely at his own costs, without claiming any equities whatever 4 908-caw-1605-2011.sxw and without claiming any reimbursement of expenses at any point of time, namely:- (a) replacement of rotten / decayed/ broken wooden planks/ rafts which are the base of the suit shed; (b) replacement of rotten tin sheets being roof and/or walls of the suit shed; (c) replacement/ repairs of the rotten supports to the tin sheets of the roof which are wooden bullies. (ii) This order will be subject to the condition that the Applicant shall personally file his written undertaking in this Court duly interpreted to him by the interpreter of this Court or the Superintendent of the Civil Court at Karjat, incorporating the following statements/ undertaking on oath that even if Applicant is allowed to carry out the said repairs, the Applicant will not claim any equity whatsoever and will not :- (a) claim that the original suit premises no longer exists and new premises have come into existence; (b) claim that on account of the repairs being permitted, the said Applicant is no longer bound by the decree for eviction which has been passed by the District Court. (c) claim any equities or make any claim about the legality of the said old structure or the one that would come into existence by the 5 908-caw-1605-2011.sxw order permitting repairs. (iii) It is clarified that this order does not deal with the legality or otherwise of the suit shed and shall not be relied upon by the Applicant to contend that the suit shed is legal. As and when any such issue is required to be decided/ considered in any other proceedings, same will be considered in accordance with the law and on the basis of evidence as may be adduced by the parties to said proceedings. (iv) Before carrying out actual repairs, if undertaking as aforesaid is filed, copy of the said undertaking should be served on the Advocate for the Respondents and shall also be sent to the Respondents by RPAD before the actual repairs are commenced. Notice of atleast two days in advance will be given to the Advocate for the Respondents. (v) Respondents will be entitled to remain present at the time of repairs, subject to the condition that Respondents will not obstruct the work of repairs in any manner, either orally or otherwise, either by themselves or through any other persons. (vi) Subject to above clarification, Civil Application is disposed off. (G.S.GODBOLE, J.)