1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6542 OF 2010 Rajaram Bhagwan Lokare, Age 62 years, Occ. Agriculturist, R/o Galli No.4, Vithal Lokare Bhavan, House No.2264, at and District Dhule. ... PETITIONER VERSUS 1. Swoddharak Vidharthy Sanstha, Dhule, District Dhule Office D.R.O.B.D. High School, Awar Dondaicha, Taluka Shindkheda, District Dhule – 425 008 2. Sarkarsaheb J.J. Raval, President, Age Major, Occ. Agriculture, R/o Havai Mahal, Dondaiche, Taluka Shindkheda, District Dhule. 3. Jaykumar Raval, Hon’ble Secretary, Age major, Occu. M.L.A., R/o Havai Mahal, Dondaiche, Taluka Shindkheda, District Dhule. 4. Bapusaheb J.J. Raval, Executive Director, Age major, Occu. Agriculture, R/o Havai Mahal, Dondaiche, Taluka Shindkheda, District Dhule. 5. Chayansingh Navalsingh Rajput, Secretary, Age major, Occu. Agriculture, R/o Gandhi Awar, Dondaiche, Taluka Shindkheda, District Dhule. 6. Dr. P.V. Sohani, Vice President, Age major. Occu. Doctor, R/o Station Area, Dondaiche, Taluka Shindkheda, District Dhule. 2 7. R.R. Tongaonkar, Director, Age major, Occu. Doctor, R/o Srirang, Dondaiche, Taluka Shindkheda, District Dhule. 8. Rajaram Jagannath Sonar, Director, Age major, Occ. Sonar, R/o Sonar Galli, Taluka Shindkheda, District Dhule. 9. Narayan Kashinath Sathe, Director, Age major, Occu. Agriculture, R/o Gangabhuwan, Dondaiche, Taluka Shindkheda, District Dhule. 10. Ishwarlal Babulal Bhavsar, Director, Age major, Occupation Business, R/o Station Area, Dondaiche, Taluka Shindkheda, District Dhule. 11. Subhash Shankar Agrawal, Age major, Occu. Business, r/o ‘Kamal’ Niwasl, Jamnalal Bajaj Road, Dhule. 12. Smt. Shantadevi Yogendrasingh Jamadar, Age major, Occu. Agriculture, R/o Dadasaheb Rawal Co-op. Housing Society, Dondaiche, Taluka Shindkheda, District Dhule. 13. Sow. Nayankuwar Jitendrasingh Rawal, Age major, Occu. Agriculture, R/o Hawai Mahal, Dondaiche, Taluka Shindkheda, District Dhule. 14. Sow. Binakumar Jaydeepsingh Rawal, Age major, Occu. Agriculture, R/o Hawai Mahal, Dondaiche, Taluka Shindkheda, District Dhule. (Respondents Nos.2 to 14 are executive Directors of respondent No.1 - Sswoddharak Vidhyarthi Sanstha, Dhule) ... RESPONDENTS ..... Shri S.D. Kulkarni, Advocate for the petitioner Shri P.R. Patil, Advocate for respondent No.5 ..... 3 CORAM : R.M. BORDE, J. DATE : 18th October, 2010 ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, the petition is taken up for final hearing at the stage of admission. 2. The petitioner herein (original plaintiff) presented Regular Civil Suit No.289/2008, claiming the decree of perpetual injunction, restraining the defendants from causing interference in his possession. The plaintiff has also claimed damages to the tune of Rs.40,000/- from the defendants. The defendants appeared and resisted the suit by filing written statement. In paragraph No.4 of the written statement, the defendants have admitted that the father of the plaintiff was an ordinary tenant over the suit property and have further contended that the issue of tenancy needs to be framed and needs to be referred to the Tenancy authorities. In paragraph No.7 of the written statement, it is contended that the property belongs to the Trust and as such, the same cannot be said to have been purchased by the tenant on the tiller’s day. It is also contended that, the lands are included within the urban area and as such, are deemed to have been deleted from the operation of the provisions of Tenancy Act. The defendants, however, have presented an application at Exh. 34/D on 14.9.2009, requesting the Court to frame preliminary issue in respect of tenancy and pass necessary orders in respect of the preliminary enquiry on framing of such issues. The 4 application was opposed by the respondents, contending that, the applicant does not require consideration. The trial Court, however, directed to frame issue as regards the jurisdiction of the Court to try the instant suit and further directed that it will be treated as preliminary. The said order passed by the trial Court framing an issue in respect of jurisdiction and further issuing a direction to try the said issue as a preliminary issue in view of the order dated 9.3.2010 is subjected to challenge in this petition. 3. Considering the pleadings raised by the parties, the issue in respect of entertainability of the Court to try the suit in fact does not arise in the matter and it cannot be controverted that the Civil Court has jurisdiction to entertain the suit. The only objection raised by the defendants is in respect of applicability of the provisions of Tenancy Act and it has been urged to make a preliminary enquiry in that regard. The defendants want to suggest that the issue in respect of tenancy is required to be framed and is also further required to be referred to the Tenancy authorities. On perusal of the pleadings raised by the defendants, it would be for the trial Court to consider the permissibility to frame the issue in respect of tenancy and make reference thereof to the Tenancy authorities. The trial Court would obviously take into consideration the pleadings raised by the defendants in paragraph No.2 of the written statement while directing the framing of issue in the matter. It is pointed out that, although the plaintiff and defendants have submitted their pleadings on record, the trial 5 Court has not framed the issues in the matter. It would be proper for the trial Court to frame the issues and if at all after considering the contentions raised by respective parties, the trial Court comes to the conclusion that some issues ousting the jurisdiction of the Civil Court are required to be framed and decided, may pass appropriate order as regards framing of such issue or reference thereof. At this stage of the proceedings, it was not open for the Court to frame an issue of jurisdiction of the Court and to treat it as a preliminary issue. In fact, considering the facts and circumstances of the case, the question of Court’s having no jurisdiction does not arise i.e. when proper contentions are raised in the plaint, the jurisdiction of the Civil Court is invoked and it would be for the Civil Court to entertain the Civil Suit. The trial Court also, while framing the issues, would consider the application tendered by the defendants at Exh. 34/B and proceed to pass appropriate orders. 4. For the reasons recorded above, the Writ Petition is allowed. The order passed by the trial Court on 9.3.2010 below Exh. 34/D is quashed and set aside. The trial Court is directed to frame issues in the matter in accordance with the provisions of the Code of Civil Procedure and after considering the application tendered by the defendants at Exhibit 34/D. Rule is accordingly made absolute. R.M. BORDE JUDGE