wp10396.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.10396 OF 2010. Prabhakar Ramdas Sable and others. .. PETITIONERS. VERSUS Ramdas Bansi Sable and others. .. RESPONDENTS. ... Smt. Geeta L. Deshpande, Advocate for Petitioners. Shri R.G. Joshi, Advocate for R.No.2. ... CORAM : S.S. SHINDE,J. 15th SEPTEMBER, 2011. PER COURT: 1. The learned Counsel for the petitioners seeks liberty to add prayer clause in the writ petition. She submits that inadvertently, the prayer seeking quashing and setting aside the impugned order has not been incorporated in the petition. Leave granted. Amendment to be carried out forthwith. wp10396.10 2 2. This writ petition is directed against the order dated 13th July, 2010 passed by the C.J.J.D., Gangapur in RCS NO.73/2004. 3. The learned Counsel for the petitioners invited my attention to para 2 of the plaint and submitted that the issue of tenancy is not pleaded by the plaintiffs or even defendants in their written statement have admitted tenancy of Asaram Khanderao Sable. According to the learned Counsel for the petitioners, the issue of tenancy is not raised by the plaintiffs. Therefore, the application which was filed by the defendants for framing additional issue about the jurisdiction of the Court to entertain the suit was wholly unwarranted in the facts of this case. The learned Counsel for the petitioners would further submit that the provisions of Section 99 of the Hyderabad Tenancy and Agricultural Lands Act have no application in the instant case. It is further submitted that in the written statement filed by the defendants, no such issue has been raised. After wp10396.10 3 filing of the written statement, the plaintiffs have stepped into witness box and examination-in-chief has been completed. Thereafter the the application came to be filed on behalf of the defendants through Advocate raising the question of jurisdiction to try the suit. In support of her contention that such issue cannot be raised after filing written statement and if such point is not taken in the written statement, she placed reliance on the reported judgment of this Court in case of B.S.L. Ltd., v/s "Cristian-C" and others [AIR 1999 BOMBAY 320] and in particular, paragraphs 5 and 8 of the said judgment. She also placed reliance on the decision of the Supreme Court in case of Mercantile Industrial Development Co. (P) Ltd. v/s Wahid Chauhan [(2003) 10 SCC 282]. Therefore, according to the learned Counsel for the petitioners, this petition deserves to be allowed. 4. On the other hand, the learned Counsel for the respondents invited my attention to the averments wp10396.10 4 made in the application and also to the provisions of section 99 of the H.T. & A.L. Act and submitted that in case the issue regarding tenancy is raised, then the proceedings are maintainable before the Tenancy Court and, therefore, the suit filed by the plaintiffs about the tenanted land cannot be adjudicated by the Civil Court and proper forum is tenancy Court. The learned Counsel for respondents also submitted that there is no prayer in the petition for quashing and set aside the impugned order passed by the trial Court below Exh.47 in RCS NO.73/2004 and, therefore, this Court may dismiss the writ petition. 5. I have given due consideration to the rival submissions of the learned Counsel for the parties. On plain reading of Section 99 of the H.T. & A.L. Act, it is abundantly clear that if the tenancy is questioned or the issue is raised, whether the tenant is protected tenant or not, in that case, proper forum is the tenancy Court. However, in the present case, admittedly, the tenancy is not disputed by the wp10396.10 5 plaintiffs. Rather, it is admitted position that there is no issue raised about tenancy. In that view of the matter, the trial Court was not correct in entertaining the application of the defendants at belated stage, when such contention was not raised in the written statement and application came to be filed after the examination-in-chief of the plaintiffs was over. 6. Therefore, for the afore stated reasons, the impugned order dated 13th July, 2010 passed by the C.J.J.D., Gangapur below Exh.47 in RCS NO.73/2004 framing additional issue of jurisdiction, cannot be sustained and the same is quashed and set aside. Consequently, additional issue framed by the trial Court will not survive. Trial Court to proceed to decide the suit on other issues. Writ Petition is allowed, accordingly and disposed of. [ S.S. SHINDE ] JUDGE. Kadam/*