1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9635 OF 2009 Balkrishna Pritamlal Vadhavan ...Petitioner vs. Pandurang Shahaji Mandhare ...Respondent Mr.Sagar Joshi for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : JANUARY 4, 2010 P.C. 1 Heard the learned counsel for the petitioner. The petitioner is the original defendant in a suit filed by the respondent. The suit is filed for possession of the immoveable property. The second prayer in the suit is for declaration that the agreement between the parties executed on 14 th June 1995 is illegal and the same be cancelled. Written statement was filed by the petitioner contesting the said suit. The issues were settled by the trial court. Thereafter, an application was made by the petitioner for framing additional issues. The first additional issue was on the basis of the plea that the suit is barred under sub-rule 4 of rule 1 of Order XXIII of the Code of Civil Procedure,1908. The second issue was whether the petitioner was entitled to protection under section 53-A of the Transfer of Property Act,1882. By the impugned order, the said application has been rejected. 2 The learned counsel for the petitioner pointed out that in the impugned order, the learned Trial Judge has erroneously observed that there is no plea of part performance in the written statement. He pointed out that in fact in paragraph 9 of the written statement, the 2 plea has been specifically raised. He submitted that as a result of the said observation in the impugned order, the said plea will not be considered by the trial court. 3 I have considered the submissions. As far as contention based on sub rule (4) of Rule 1 of Order XXIII is concerned, the trial court has rightly observed that the suit was filed earlier in the Court of Civil Judge (Junior Division) when the jurisdiction of the said Court was to the extent of Rs.25,000/-. The impugned order records that the suit was permitted to be withdrawn for filing the same in the Court having jurisdiction. Therefore, the Trial Court rightly observed that no issue is required to be framed on the basis of the first contention. As far as second contention is concerned, observation of the trial court that there is no pleading based on the plea of part performance is only a tentative observation. An issue has been framed by the trial court on the entitlement of the respondent to a decree for possession. While deciding the said issue, the trial Court is bound to take into consideration the plea in paragraph 9 of the written statement and the evidence adduced by the petitioner in support of the said plea. Subject to this clarification, no case for interference is made out. 4 Accordingly, Writ Petition is rejected. JUDGE