1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.6061OF 2009 Venkat s/o Shripati Kale, age 50 yrs, Occ. Business, r/o Venkatesh Furniture works, Ambajogai Road, Ahmedpur, Tq. Ahmedpur, Dist. Latur. ..PETITIONER. V E R S U S 1. The State of Maharashtra, (copy to beserved on the Government Pleader of the High Court of Bombay Bench at Aurangabad.) 2. The Forester, The Forest Zone Office, Ahmedpur, Tq. Ahmedpur, Dist. Latur. ..RESPONDENTS. Shri H.I. Pathan, Advocate for the petitioner. Shri D. R. Kale, Advocate for the respondent. CORAM : K. K. TATED, J. DATE : 11TH SEPTEMBER, 2009. PER COURT :- 1. Heard the learned counsel Mr. H.I. Pathan, for petitioner 2 and learned AGP Shri D.R. Kale, for respondent. 2. Rule. Rule made returnable forthwith. By consent matter is taken on board for final hearing. 3. By this petition under Articles 226 and 227 of the Constitution of India, present petitioner-plaintiff challenges the order dated 6th May, 2009 passed by the Civil Judge S.D. Ahmedpur below Exh. 82 in Reg. C.S. No.18/2007 . The petitioner filed an application under order 14 Rule 5 of Code of Civil Procedure dated 13.02.2009 for amendment and striking of issues no.1 and 2 framed by the Trial Court and for framing additional issues. The petitioner filed Reg. Civil Suit No.18/2007 in the Court of Civil Judge Senior Division, Ahmedpur for perpetual injunction restraining respondents/original defendants from causing obstruction and interference in petitioners business i.e furniture work shop. In the said suit, respondents/original defendants filed their written statement dated 29.09.2007 submit that the petitioner is using cutting machine for more than size of 12 inches and therefore 3 same is covered under Government Gazette Dt. 03.11.2003 as Saw Mill. On the basis of pleadings, the trial court framed in all four issues on 07.07.2007 which are as under :- 1. Does plaintiff prove his title referable to valid possession over the suit property ? 2. Does plaintiff prove alleged obstruction at the hands of defendant to his possession over the suit property ? 3. Is plaintiff entitled to perpetual injunction as prayed for ? 4. What order and decree ? 4. It is the case of the petitioner that issues No.1 and 2 is not necessary to decide this civil suit. He submitted that the trial court ought to have framed some additional issues as stated by him in his application dated 13.02.2009 i.e . a) Whether the defendants can prove the contents in paragraph no.4 of his written statement ? b) Whether the defendant/ respondent no.2 can prove whether machinery used by the petitioner is saw mill ? 4 c) Whether the defendant/ respondent no.2 proves that Ahmedpur Taluka has not been excluded as reserve or protected forest range ? 5. The trial Court rejected the petitioners application on the ground that these additional issues are not necessary to decide the petitioners suit simplicitor for perpetual injunction restraining the respondents not to disturb his business. The learned counsel appearing on behalf of the petitioner submits that the respondents/original defendants in their written statement raised objection on the basis of Government Gazette Dt. 03.11.2003 that the petitioner is using cutting machine of more than size of 12 inches. They further specifically raised objection in the written statement that area of Ahmedpur is covered by forest area. The learned counsel appering on behalf of petitioner submitted that, on these specific objections raised by the respondent in the written statement, it is necessary to frame additional issues as stated by the petitioner in his application dated 13.02.2009 below Exh.82. In 5 support of his contention, the learned counsel Shri H.I. Pathan, appearing on behalf of petitioner relied on authority in the matter of M/s Unitech Industrial Corporation and another V/s M/s Arvind Engineering Co. reported in AIR 2001 A.P 177 head note of this authority is as under :- "Framing of additional issue – When necessary – objection taken in written statement that person who had signed plaint had no authority to sign and verify plaint – Said person also admitting in cross – examination that on date of singing he had no special power of attorney – Trial Court was duty bound to frame issue with regard to authority of deponent to sign plaint and maintainability of suit – Finding given that deponent had letter of authority to sign plaint without framing issue – Is improper.” 6. He also relied on authority in the matter of Smt. Indira Madnani and ors v.s Hola Ram (deceased) by L.Rs reported in AIR 2003 Delhi, page 49 head note of this judgment reads as under : “Framing of additional issue – Suit for dissolution of partnership and rendition of accounts – Issue as to “Whether tenancy rights of plaintiff came to end vide agreement without surrendering to landlord” - Tenancy of suit premises stated to be one of assets of 6 partnership – Issue based on mixed question of fact and law was required to be framed for effective adjudication not controversy – Application for housing of said issue allowed “ 7. I have gone through both the authorities carefully. In my opinion, both these authorities are not applicable in the present case because, the petitioner herein have filed suit simplicitor for perpetual injunction restraining the respondents from interfering in his business. The burden is casted upon the petitioner to prove that respondents/original defendants are interfering in their business. Considering these facts, I do not find any substance in the present writ petition, same is dismissed with costs of Rs. 1,500/-. The payment of costs is a condition precedent . Petitioner to deposit costs, payable to respondents No.1 and 2 in trial court. ( K. K. TATED ) JUDGE. ..... aaa/6061.09