IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7683 /2008 Shri Vasant Chintaman Sapkale .. Petitioners Versus Shri Kamlakar Vinayak Kulkarni .. Respondent. --- Mr. Mukul Kulkarni, Advocate for petitioner. Mr. Shrikant Bhalerao, Advocate holding for Mr. S.P. Brahme, Advocate for respondent CORAM : B.R. GAVAI, J. DATE : 24th June, 2009. ORAL ORDER :- 1] By way of present petition, the petitioners challenge the order dated 3rd October,2008 vide which the learned trial court has directed that all the issues should be framed and the evidence should be recorded on all the issues. 2] The respondent/plaintiff has filed a suit for recovery of possession on various grounds including the arrears of rent, willful default nd bonafide need. The said suit was resisted by the defendant /petitioner . One of the grounds raised by the petitioner is that the suit is not tenable in view of Order 9 Rule 9 and Order 2 Rule 2. 3] It is the contention of the defendant that an earlier suit for recovery of rent being R.C.S. No,. 142/1996 was dismissed for default on 9th December, 2003 and the Misc. Application No. 31/2004 for restoration of the suit was also rejected. It is, therefore, the averment of the defendant that in view of the dismissal of the earlier suit, the present suit was not maintainable. 4] On the basis of the pleadings of the parties, a preliminary issue, as to whether the suit was barred by the provisions of Order 9 Rule 9 or under Order 2 Rule 2, came to be framed vide order dated 11/1/2008. It appears that the suit was adjourned on various dates. Subsequently, an application came to be filed by the plaintiffs below Exhibit 28, submitting therein that in order to avoid calling the witnesses on number of occasions, it would be appropriate in the interest of justice that all the issues are framed and the evidence is recorded on all issues. The said application is allowed. Hence, the present petition. 5] Shri Mukul Kulkarni, learned counsel appearing for the petitioner submits that the learned trial court, without setting aside order dated 11/1/2008, could not have passed the order impugned herein. He submits that unless the preliminary issue is decided, since the same goes to the root of the matter, the recording of evidence on all the issues will be an exercise in futility. He, therefore, submits that the impugned order be quashed and set aside. 6] Shri Shrikant Bhalerao, holding for Shri Shailesh Brahme, Advocate for the respondent submits that the learned trial court has rightly directed that evidence should be recorded on all the issues in order to avoid multiplicity of proceedings. 7] In any event, no prejudice is likely to be caused to the present petitioner, inasmuch as, the trial court has itself directed that after the recording of evidence, the preliminary issue would be decided first.From the perusal of the plaint itself, it is clear that the recovery of possession is sought on various grounds including the ground of bonafide requirement and recovery of rent. 8] I do not find that any infirmity has been committed by the learned trial court in directing all the issues to be framed and evidence to be recorded on all the issues. In so far as the contention regarding earlier order is concerned, the order dated 11/1/2008 only frames a preliminary issues and nowhere states that the preliminary issue would be decided prior to the decision on the other issues. The said order also does not direct the parties to lead evidence on the preliminary issue. In any event, in order to avoid witnesses being summoned twice, it would be in the interest of justice that the evidence is recorded on all the issues. The trial court has also protected the interest of the petitioner by directing that after the evidence is recorded, hearing on the preliminary issue would be taken first in order to decide the issue regarding tenability of the suit. . In that view of the matter, no perversity is found with the approach adopted so as to warrant interference in the extraordinary jurisdiction of this court under article 227 of the Constitution of India. Hence, writ petition is rejected. [B.R. GAVAI] JUDGE. **** grt/-