1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 250 OF 2009 Dr. Subhash s/o Namdeorao Sonawane & another .. PETITIONERS VERSUS The Maharashtra State Finance Corporation & others .. RESPONDENTS Mr. Hemant Surve, Advocate for the petitioners. Mr. S.R. Deshpande and Mr. R.D. Deshpande, Advocate for respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 12 th November, 2009 PER COURT : 1 Petitioner is raising exception to the interlocutory order passed by the trial court in respect of recasting of issues. Petitioner approached the civil court by presenting Regular Civil Suit no. 1/2001 seeking declaration that defendant nos. 1 to 3 / respondents herein are not entitled to seize the property in question treating it as collateral security mortgaged by the 2 plaintiff in their favour. Plaintiff has also sought for a decree of perpetual injunction against the defendants restraining them from taking action of disposal of property for recovery of loan alleged to have been secured by the petitioner / original plaintiff. Petitioner contends in the plaint that he and his wife are residents of Jalgaon and are residing in the residential property which is subject matter of dispute. They have secured loan from respondent / Maharashtra State Finance Corporation for the purpose of running dairy business. Plaintiffs have specifically denied to have executed any mortgage deed in respect of the property in question. However, on receipt of the notice from the financial agency, plaintiffs / petitioners apprehend that action would be taken by the agency i.e. respondent no. 1 and the property in question would be attached and would be disposed of for recovery of loan. As such, the plaintiffs have approached the court, seeking relief as prayed for in plaint. Adverse contentions raised by the plaintiffs in the suit have been controverted by the defendants by filing written statement. 2 On the basis of pleadings, trial court framed issues at exhibit 50. Plaintiff presented application on 20-8-2008 requesting the court to recast the issues. Plaintiffs have requested the court to delete issue nos. 1 and 2 3 and has further requested the court to frame following issue : . Does defendant prove that the plaintiff has mortgaged the property under question in the suit to the defendant ? . Trial court on considering the application tendered by plaintiffs / petitioners directed framing of issue no. 4(a) as : . Does plaintiff prove that plaintiff has not mortgaged the property in question in the suit to the defendant ? . According to the plaintiff, negative burden is cast on the plaintiff to prove the document which according to him is not in existence. As such, framing of issue which is styled improperly is likely to affect his case. 3 Plaintiffs have approached the civil court specifically contending that they have not executed any document thereby mortgaging the residential property with the finance agency i.e. respondent no. 1. Contentions raised by the plaintiff have been controverted by defendant / respondent no. 1 and copy of the document (main security and collateral security) is placed on record. Property in question which is subject matter of the suit is 4 described in the document as collateral security. It also discloses that the plaintiff is party to said document. Objection is raised in respect of the document contending that it does not bear the signature of the plaintiff. Original document is stated to have been presented to the trial court. The question of admissibility of the document or validity thereof is required to be determined by the trial court at appropriate stage. Learned counsel for the plaintiff / petitioner has placed reliance on a judgment in the matter of Anil Rishi Vs. Gurbaksh Singh reported in AIR 2006 Supreme Court 1971. I have gone through the judgment. Facts in the reported judgment are totally different and as such the ratio laid down in the said judgment is not applicable to the instant case. Considering the facts and circumstances of the case and considering the interlocutory nature of the order passed by the trial court, this court need not exercise discretion conferred under Article 227 of the Constitution of India, in causing interference in an interlocutory order, at this stage. Petition therefore stands rejected summarily. 4 Learned counsel for the petitioner seeks stay of the impugned order so as to enable him to raise further challenge to the order. Since the order under challenge in respect of recasting of issues was passed by court on 18-10-2008 and on presentation of petition no interim relief was ever granted, 5 I do not deem it appropriate to direct stay of further proceedings in suit after lapse of more than an year of passing of impugned order. The request made by counsel therefore stands rejected. ( R. M. BORDE, J.) dyb/office/wp250.09.odt