1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6386 OF 2010 1 Sk. Wahid s/o Sk. Hasinoddin, age: 50 years, Occ: Driver; 2 Sk.Khalil s/o Sk. Hasinoddin, age: 45 years, Occ: Service; 3 Sk. Jakir s/o Sk. Ibrahim, age: 42 years, Occ: Business; 4 Sk. Hakim s/o Sk. Ibrahim, age: 49 years, Occ: Nil; 5 Sk. Kalam s/o Sk. Ibrahim, age: 40 years, Occ: Business; 6 Sk. Hukum s/o Sk. Ibrahim, age: 59 years, Occ: Nil; 7 Sk. Iliyas s/o Sk. Ibrahim, age: 29 years, Occ: Business; All R/o Municipal Colony, at present residing at Plot No.78, Shivaji Nagar, Dhule, Tq. and District Dhule. Petitioners Versus Mujahaid Hasan s/o Mohammed Najir, age: 59 years, Occ: Business, R/o C.T.S. No.4714, Municipal Colony, Plot No.78, Dhule, Tq. and District Dhule. Respondent 2 Mr. S.S.Kazi, advocate for the petitioners. CORAM: R.M.BORDE, J. DATE : 24 rd August, 2010. P.C.: 1 An interlocutory order dated 09.04.2010, below Exhibit-22 in Civil Appeal No.1/2008, passed by Ad hoc District Judge-2, Dhule, is subjected to challenge in this petition. 2 Petitioners – original defendants presented an application in pending appeal requesting the Court to frame an additional issue in respect of applicability of principle of estoppel and remit the matter back to the trial Court for recording evidence touching the issue so framed. The appellate Court, however, has turned down the application. 3 It transpires from perusal of the order that issues no.1 and 2 framed by the trial Court were in respect of bar of suit in view of principle of res judicata and tenability of the suit with reference to Order II Rule 2 of the Code of Civil Procedure. Both the issues have been answered in favour of the plaintiff. The appellate Court also found that there is no specific averment as to what was the pleading and evidence in Regular Civil Suit No.58/93 and as to how the principle of estoppel is attracted in the matter. 3 It is also observed by the appellate Court that the defendants did not file any material before the Court to enable it to frame such issue. However, on consideration of pleadings and material on record, the trial Court framed issues at Exhibit-15 and Issues No.1 and 2 relate to tenability of the suit in view of principle of res judicata and provisions of Order II Rule 2 of the Code of Civil Procedure. In these circumstances, it appears that the defendants have not made out any case for framing additional issues based on principle of estoppel. Even otherwise, the trial Court has dealt with the issue based on pleadings of the parties and in respect of the principle enumerated under the provisions of Order II Rule 2 of the Code of Civil Procedure. The first appellate Court was, therefore, justified in turning down the request made by the petitioners – original defendants. 4 In exercise of extraordinary powers under Article 227 of the Constitution, this is not a fit case to cause interference and more specifically at the interlocutory stage of the matter. Petition is devoid of substance. 5 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp638610