: 1 : 4188-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4188 OF 2011 Aruna Bhirudev Vhanmane & Anr. .. Petitioners v/s. Vinayak Bhagwat More & Ors. .. Respondents ......... Mr. Surel Shah for the petitioners None for the respondent ......... CORAM : R.Y.GANOO, J DATE : 16th SEPTEMBER,2011. P.C. : 1. In the peculiar facts and circumstances of the case, this petition can be disposed of and order can be passed without hearing the respondents as in my view, no prejudice will be caused to the respondents if following order is passed. 2. I have heard learned advocate Mr. Surel Shah for the petitioners. The petitioners are defendant nos. 2 and 3 respectively in the R.C. Suit No. : 2 : 4188-11-wp=.sxw 722 of 2010 in the Court of learned Civil Judge, Junior Division, Solapur. Defendant no.3 filed written statement on 12th January, 2011 raising various contentions. On the very day itself i.e. on 12th January, 2011 the petitioner no.2, who was original defendant no.3 filed an application at Exh.35 stating that written statement is filed wherein contention as regards jurisdiction of the Court is raised and it is necessary to frame preliminary issue namely; whether the suit is barred in view of provisions of Section 147 of Maharashtra Regional Town Planning Act ? Similarly, both the petitioners filed another application at Exh.44 praying that an issue on the following terms. “Whether the suit of the plaintiff is not maintainable under Section 149 of the Maharashtra Regional Town Planning Act ?” be framed as a preliminary issue and the suit be taken up for hearing accordingly. These two applications were decided by the learned 7th Joint Civil Judge, Junior Division, Solapur by his order dated 20th January, 2011. 3. I have considered the submission advanced by learned advocate Mr. Shah. According to learned advocate Mr. Shah, it was necessary for the learned Trial Court to frame the issues as prayed for in application at Exh. 35 as well as Exh.44. According to him, learned Trial Judge has erred in : 3 : 4188-11-wp=.sxw rejecting these applications and, therefore, this petition is filed. 4. I have noted the fact that the defendant no.3 has filed detailed written statement on 12th January, 2011 and defendant no.2 has adopted the said written statement by filing the pursis. It is noticed that the two applications at Exh.35 and Exh.44 were filed on 12th January, 2011 and on 17th January, 2011 respectively. The same have been rejected. 5. Insofar as the manner in which these applications are made, I am inclined to observe that these applications could not have been entertained by the learned Trial Judge on the ground that once the written statement is filed, the learned Trial Judge was obliged to frame issues in accordance with the provisions of Order 14 of C.P.C. and thereafter depending upon the text of the issues framed, it was open for him to decide certain issues as provided in Order 14, Rule (2)(2) of C.P.C. It appears that the petitioner wanted learned Trial Judge to frame the issues as preliminary issues without framing other issues. In my view, the course adopted by the petitioners as well as the course adopted by the learned 7th Joint Civil Judge, Junior Division, Solapur is wrong in as much as the learned Trial Judge should have rejected these applications by simply observing that : 4 : 4188-11-wp=.sxw after framing of the necessary issues on the strength of pleadings certain issues could be decided as per Order 14 Rule (2)(2) of C.P.C. The learned Trial Judge has declined to frame the issues as preliminary issues. In my view, the whole exercise carried out by the petitioners as well as learned Trial Judge has resulted in a patent irregularity. The learned Trial Judge will have to frame issues as per Order 14 of C.P.C. after appreciating the pleadings and thereafter decide certain issues as provided in Order 14 Rule (2) (2) of C.P.C. 6. In the facts and circumstances mentioned aforesaid, this petition is disposed of by passing following order. ORDER (i) Order dated 20th January, 2011 passed by learned 7th Joint Civil Judge, Junior Division, Solapur in R.C. Suit No.722 of 2010 below Exh.35 and Exh.44 is set aside. (ii) The said Judge shall peruse the plaint as well as all the written statements filed by the respective parties and thereafter frame issues : 5 : 4188-11-wp=.sxw after hearing learned advocates on both the sides. After the issues are framed, if the Court is satisfied that certain issues can be tried as per Order 14 Rule (2) (2) of C.P.C. he would do so. (iii) In the facts and circumstances of the case, there shall be no order as to costs. (R.Y.GANOO, J.)