IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2150 of 2009 (M/S) M/s Omni Healthcare, F-111-112, Selaqui Industrial Area, Dehradun, Uttarakhand through its partner Sh. Sharad Gupta. ……Petitioner. Versus 1. Krishan Punj, S/o Late Sri S.L. Punj. 2. Manoj Punj, S/o Late Sri S.L. Punj. Both residents of Upper Sainik Basti, Kaulagarh, Dehradun. 3. Civil Judge, Senior Division, Vikas Nagar, Dehradun. ………Respondents. Mr. Sanjeev Agarwal, learned counsel for the petitioner. Mr. R.C. Arya, learned Brief Holder for the respondent No.3. Date:- 21-12-2009 Hon’ble B.S. Verma J. Heard Mr. Sanjeev Agarwal, learned counsel for the petitioner and Mr. R.C. Arya, learned Brief Holder for the respondent No. 3. By means of this writ petition, the petitioner has prayed for a writ of mandamus directing the trial court Civil Judge(Senior Division), Vikas Nagar to decide the preliminary issue framed as issue No.1 in the Original Suit No. 79 of 2007, M/s Omni Healthcare Vs. Sh. Krishan Punj and another, “ Whether the plaintiff was in possession of the suit premises as on 20-7-2006, the date on which the status quo orders were passed” and it was further prayed by the petitioner that the plaintiff was illegally and unlawfully thrown out of the possession subsequently by the defendants as pleaded by the plaintiff. 2 I have perused the material placed on record. The issue whether the plaintiff was in possession at the time of filing of the suit is a mater of evidence and is to be decided at the final stage. This is not the issue of preliminary nature. No such mandamus can be issued. The Trial Court at final stage while deciding the suit shall decide the said issue. Since they are disputed questions of fact as to who are in possession at the time of filing of the suit either plaintiff or defendants. As per version of the petitioner, he has been evicted forcibly by the defendants after filing of the suit, he may amend his pleading of the suit if so advised and may also adduce the evidence. Learned counsel for the petitioner has informed to the court that he had already filed the suit under Section 6 of the Specific Relief Act, which is consolidated with this original suit. Both the suits are to be decided together by the court on merit. It is made clear that the issue whether the plaintiff was in possession at the time of filing the suit is not preliminary in nature and can be decided after recording of evidence. No such mandamus as prayed by the petitioner can be issued to the trial court. The writ petition is devoid of merit and is liable to be dismissed. The writ petition is dismissed in limine. (B.S. Verma, J.) 21-12-2009 MK