1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5769 OF 2008 Shivaji s/o. Chandrahas Todkari Age 56 years, Occ. Agri. R/o. Bamni, Tq. and Dist Osmanabad. .. Petitioner Versus 1. Sarubai w/o Pandurang Todkar (Now deceased) 2. Chandrakant s/o. Suresh Pawar Age 37 yeas, Occ. Agri. R/o. Bamni, Tq. and Dist. Osmanabad. 3. Ramakant s/o. Suresh Pawar, AGe 32 years, Occ & R/o. As above. .. Respondents --- Mr. Prashant K. Deshmukh, Advocate for petitioner Mr. V.S. Tanwade, Advocate for respondent NOs. 2 and 3. CORAM : B.R. GAVAI, J. DATE : 11TH JUNE, 2009. PER COURT :- 1. Rule. Rule made returnable forthwith. Heard 2 by consent. 2. By way of present petition, the petitioner challenges the order dated 28th June, 2007, vide which the application filed by the present petitioner for recasting the issues, is rejected. 3. The respondents have filed a suit for perpetual injunction restraining the defendants from obstructing the peaceful possession of the plaintiffs over the suit land and also prayed for a decree of possession. 4. The claim of the plaintiff was resisted by the petitioner defendant by filing the written statement. From the perusal of the written statement, it can be seen that the averments made in the plaint have been specifically denied by the defendants and certain additional aspects have also been stated. 5. The learned trial court framed issued below Exhibit 57. Thereafter the petitioner filed an application for recasting the issues. The same is rejected. Hence, the present petition. 6. Shri Deshmukh, learned counsel for the petitioner submits that the learned trial court has not framed any issues pertaining to the averments 3 made by the petitioner in the written statement. It is submitted that all the issues are framed on the basis of the averments made in the plaint. He,therefore, submits that the impugned order is not sustainable in law. 7. Shri Tanwade,learned counsel for the respondent Nos. 2 and 3, on the contrary submits that the trial court has rightly framed issues and hence did not find it necessary to recast the issues and hence, no interference is warranted. 8. Perusal of the impugned order would reveal that the trial court, while rejecting the application has considered the matters and has discussed the claim of the defendants pertaining to the merits. Perusal order XIV would reveal that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Perusal of the impugned order would reveal that the learned trial court has not taken taken into consideration this aspect of the matter and has rejected the application only taking into consideration the merits of the matter. 9. In that view of the matter, I am inclined to allow the petition. The impugned order dated 28th June, 2007 is quashed and set aside. The matter is remitted back to the learned trial court for framing 4 the appropriate issues, taking into consideration the pleadings of the parties. 10. Rule made absolute in aforesaid terms, with no orders as to costs. [B.R. GAVAI, J.] grt/