1 wp 6297.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6297 OF 2011 Jasawantsingh Yadav Koli (Tawar), Age : 38 Years, Occu. : Service, R/o Andale Chaure Housing Society, Near Renuka Mata Mandir, Kedgaon, Ahmadnagar. .. Petitioner Versus 1. Purushootasm Lotan Patil, Age : 55 Years, Occu. : Agril., R/o Varshi, Tq. Sindhkheda, Dist. Dhule. 2. Shaligram Kashiram Patil, Age : 63 Years, Occu. : Agril., R/o Tavkheda, (Pra-Betawad), Tq. Sindhkheda, Dist. Dhule. 3. The Zilla Parishad Dhule, (Through the Chief Executive Officer) 4. The Panchayat Samiti, Sindhkheda, (Through Block Development Officer) Tq. Sindhkheda, Dist. Dhule. 5. Ranjitsingh Yadav Tawar, Age : 56 Years, Occu. : Service, R/o Railway Quarter, Nandurbar, Tq. & Dist. Nandurbar. 2 wp 6297.11 6. Karansingh Yadav Tawar, Age : 50 Years, Occu. : Service, R/o 62, Om Nagar, Near Akashwani Kendra, Deopur, Dhule. 7. Smt. Minabai Bhagwan Shirsath, Age : 54 Years, Occu. : House, R/o 3, Draupadi Nagar, Gat No. 40, Jalgaon. 8. Vimalbai Motilal Shirsath, Age : 50 Years, Occu. : Household, R/o 16, Adhyapak Nagar, In front of Kisan Pipe Factory, Bhoi Society, Deopur, Dhule. 9. Sau. Arunabai Vilas Sonawane, Age : 49 Years, Occu. : Household, R/o Valmik Nagar, Shirpur, Tq. Shirpur, Dist. Dhule. 10. Sau. Lalitabai Nimba Navasare, Age : 46 Years, Occu. : Household, R/o Railway Quarter, Manmad, Tq. Nadgaon, Dist. Nasik. .. Respondents Shri S. S. Patil, Advocate for the Petitioner. Shri A. S. Sawant, Advocate for Respondent Nos. 1 and 2. The Respondent Nos. 3 to 10 are deleted. CORAM : S. V. GANGAPURWALA, J. DATE : 21ST SEPTEMBER, 2011. 3 wp 6297.11 ORAL JUDGMENT : . Shri Patil, the learned counsel for the petitioner seeks leave to delete the respondent Nos. 3 to 10. The respondent Nos. 3 to 10 are deleted at the risk of the petitioner. 2. Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 3. The present respondent Nos. 1 and 2 are the original plaintiffs who have filed suit for perpetual injunction. The present petitioner/original defendant No. 6 filed an application for framing the issues with regard to limitation, res-judicata, maintainability of representative suit and non joinder of necessary party as preliminary issues. The court rejected the said application. The Court not only rejected the said application, but also given findings on those issues. The said order is assailed in the present writ petition. 4. Shri Patil, the learned counsel for the petitioner submits that the application was given only for the purpose of framing the said issues as preliminary issues. The Court was hearing the application for framing the preliminary issues, but while 4 wp 6297.11 deciding the said issues has given findings on the said without giving opportunity to the petitioner and without evidence been led. According to the learned counsel the Court exceeded its jurisdiction while dealing with the same. 5. Shri Sawant, the learned counsel for respondent Nos. 1 and 2 submits that on the face of it the Court found that the said issues did not arise and that the suit is not barred by the res- judicata and not barred by the limitation. In the light of that there is no error committed by the Court in passing the impugned order. 6. The text of the application filed by the petitioner shows that the application was filed only for framing the issues of res- juidcata, limitation, maintainability, non joinder of necessary party as preliminary issues. Unless and until an issue is framed and opportunity is given of hearing, the same cannot be decided. The issues about res-judicata and limitation, they are all mixed questions of law and fact and cannot be decided without the evidence been led. 7. In the light of the above the order passed by the Trial Court deciding the issues about res-judicata, limitation and 5 wp 6297.11 maintainability is quashed and set aside. The Trial Court shall frame the said issues and decide the same at the time of final decision by giving opportunity to the parties to adduce evidence. 8. At the same time the application of the petitioner for framing said issues as preliminary issues cannot be granted, as all those issues will have to be tried along with the other issues as required U/O 14 Rule 2 of the Code of Civil Procedure. The writ petition is accordingly allowed in above terms, however, no order as to costs. Rule is made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11