1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3575 OF 2009 M/s.D.D.Enterprises ..Petitioner Versus Jyoti Dipak Patil & Ors. ..Respondents Mr.V.N.Tayade for the petitioner. Mr.R.R.Lote for the respondents. CORAM : A.S.OKA, J. DATE : 12th August 2009. P.C.: . By this writ petition under Article 227 of the Constitution of India, the petitioner who is the 1st defendant has impugned an order passed by the trial Court on 09th January 2009 by which the application made by the petitioner for recasting the issues has been partly allowed. 2. The grievance of the petitioner-1st defendant is that an issue as regards maintainability of the suit under Order XXXVII of the Code of Civil Procedure, 1908 ought to have been framed and the same ought to have been tried as preliminary issue. That prayer has been rejected by the impugned order. However, prayer for framing other 2 two additional issues has been granted. 3. Apart from the fact that the impugned order is purely interlocutory which is capable of being challenged in an appeal which may be preferred against the decree, the learned Judge in the impugned has observed that the issue regarding maintainability of the suit will be considered at the time of hearing of the suit. The learned counsel appearing for the petitioner submitted that a preliminary issue on the maintainability ought to have been framed. Under sub-rule 2 of Rule 2 of Order XIV of the said Code, the issue of maintainability could not have been treated as a preliminary issue. In view of observations made in paragraph 8 of the impugned order, the trial Court is bound to consider the objection of the petitioner to the maintainability of the suit. Subject to what is observed above, writ petition is not entertained and the same is rejected. (A.S.OKA,J)