1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION NO. 108 OF 2009. Shaikh Nanushad Shaldar .vs. Shri Gulabrao J.Madekar and ors. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Mr.A.D.Sonak,,Adv. for the petitioner. Mr.R.R.Vyas, Adv. For respondents no.1 and 2. Mr.M.I.Dhatrak, Adv. for respondent no.3. Coram: C.L.PANGARKAR,J. Dated : 17th APRIL, 2009. 1. Heard the learned counsel for the parties. 2. This writ petition has been filed against the order passed by Civil Judge (Jr.Dn.), Saoner on 29/9/2008 on an application under Section 9-A of the C.P.C. 2 The petitioner is original defendant no.2 and respondent no.1 is the original plaintiff, while Municipal council – respondent no.3 is the original defendant no.1. Municipal council – respondent no.3 has issued a notice to the petitioner to demolish his house on account of the fact that it has become dilapidated. Respondent no.1 is occupying the suit premises as a tenant. Since a notice has been issued by the Municipal council for demolition of the suit premises, respondent no.1 has instituted a Reg.Civil suit No.81 of 2006 before the Civil Judge (Jr.Dn.), Saoner praying for an injunction from demolishing the shop in possession of the plaintiff and restraining them from evicting the plaintiff without following the due process of law. 3. The petitioner as well as respondent no.1 appeared in the said suit and filed written statement contending inter alia that the suit was not maintainable because of the fact that no notice under 3 section 304 of Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965 was given. The learned judge of the trial court thereafter framed the issues. The court had failed to frame an issue with regard to the maintenability of the suit for want of notice under Section 304 of Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965 and therefore, the petitioner moved an application under Section 9-A of CPC contending that the issue with regard to the maintenability of the suit for want of notice should be framed and should be tried as a preliminary issue. The learned judge of the trial court passed an order to the effect that the issue can be decided at the time of final hearing itself. The order as passed by the learned civil judge has to be set aside on the simple ground that the issue has not been framed at all by the learned judge and yet he has said that it can be decided at the time of final hearing. In view of this, the learned 4 counsel for the petitioner as well as the respondents submit that the parties do not have any objection if issue is decided at the time of final hearing but it is necessary to direct the trial court at least to frame an issue as to maintenability of suit for want of notice. In the circumstances, the petition is disposed with a direction to the trial court that the trial court shall frame an issue as to whether the suit is maintenable without a notice under Section 304 of the Maharashtra Municipalities Act. The trial court may thereafter decide the issue along with suit. JUDGE. chute 5