:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7803 OF 2007 The New India Co-operative Housing Society Ltd. ..Petitioner Vs. The State of Maharashtra and anr. ..Respondents Mr. Shekhar Shetye with Mr. Viral P. Amin i/by M/s. B. Amin and Co. for petitioner. Ms. P.S. Cardozo, AGP for respondent no.1. Mr. Y.S. Jahagirdar, Senior Advocate with Mr.Kirit J. Hakani for respondent no.2. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : April 22, 2008. Date : April 22, 2008. Date : April 22, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Shetye i/by M/s. B. Amin and Co. for the petitioner-society and Mr.Jahagirdar, the learned Senior Counsel with Mr. Hakani for respondent no.2. The learned AGP appears for the State of Maharashtra which is a formal party. 2. Rule. Respondents waive service. :2: 3. By consent of the parties, the petition is taken up for final hearing forthwith. 4. By the impugned Judgment and Order dated 6/8/2007, Appeal No. 80 of 2007 filed by the petitioner-society came to be dismissed. The Lower Appellate Court framed the following issues and answered them accordingly in para 8:- Points Findings ------ -------- (A) Does the disputants prove that No the opponent committed breach of lease agreement? (B) Whether the disputant proves No that he is entitled for the prayer for demolition of excess portion of the building? 5. It was submitted by Mr. Shetye the learned counsel for the petitioner-society and who also had appeared before the Lower Appellate Court for the said society that the appeal was argued only on the issue as to whether the opponent i.e. respondent no.2 :3: proved that the condition in Clause 3(6) of the Lease Deed was illegal, void and improper and not binding on the opponent. It was further submitted that the arguments advanced by the parties were confined only on the same issue. However, the learned Judge of the Lower Appellate Court suo motu and without notice to either of the parties framed the issues in the impugned judgment, as quoted hereinabove and proceeded to decide the appeal. An affidavit has been filed by Mr.Viral Pinakin Amin, Advocate and Solicitor, who appeared before the Lower Appellate Court on behalf of the petitioner-society. Notwithstanding the arguments advanced and the statements made in the affidavit, Order XLI Rule 2 states, inter alia, that the Appellate Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. 6. I have also perused the appeal memo as submitted before the Lower Appellate Court and several issues were raised. It could be appropriate for the Lower Appellate Court to frame the issues and put the :4: parties on notice to advance arguments on those issues. It would be, therefore, appropriate that the appeal is remanded to the Lower Appellate Court so that the issues framed in para 8 of the Judgment or any additional issues that are required to be framed are considered afresh after both the parties are given an opportunity of advancing their arguments. The learned counsel for both the parties have consented for such a course of action and, therefore, on this limited ground the petition succeeds without making any observation on merits. 7. Hence, the petition is allowed partly and the impugned order is quashed and set aside. Appeal No. 80 of 2007 is restored to the file of the Lower Appellate Court so as to hear the parties afresh on the issues framed in para 8 or any additional issues. On remand the appeal shall be heard and decided preferably by 31/7/2008. Rule is made absolute accordingly. :5: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)