1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 511 OF 2008 The Secretary, M/s. Gautam Sindhu CHS Ltd. ........ Petitioner versus Thana Acchalgachha Hain Sangh Through its trustees & anr ........Respondent. Mr. R.S. Apte Sr. counsel with Vaibhav Patankar adv. for the Petitioner Mr. Sagar Joshi i/b. S.M.Oak adv. for the Respondent no.2. Mr. Mayuresh Mogi for Respdts. 1,2,5,6,7 to 9. CORAM: A. P DESHPANDE, J. DATED : 25th November, 2009. P. C.: 1. Rule. Rule made returnable forthwith. By consent of parties taken up for final hearing. 2. The present petitioner is a Co-operative Housing Society and is original defendant no.2 whereas the respondent no.1 is a Public Trust which is a plaintiff in the suit. Suit has been filed by the Public Trust claiming the relief of declaration that the trust alone has a right to construct the suit property and an injunction is also sought against the defendant. The present petitioner society has constructed a structure and the members of the society are in occupation thereof. By filing a written statement, the petitioner 2 raised amongst others two contentions : (1) that the present suit is not tenable in view of the bar under sections 50 and 51 of the Bombay Public Trust act without prior permission/consent of the Charity Commissioner and (2) that the suit is not maintainable in absence of a notice being served on the petitioner as is mandate by section 164 of the Maharashtra Co-operative Societies Act 1960. Based on the said pleas, issues came to be framed and the issue touching sections 50 and 51 of B.P.T.Act is issue no.3 whereas the plea touching maintainability of the suit for want of notice under section 164 is issue no.4 as framed. After framing of the issue, the respondent no.1 herein moved an application purportedly under Order 14 Rule 5 of CPC seeking deletion of issue nos. 3 and 4 on the ground that the said issues are already decided and are rendered redundant. The said application was opposed by the present petitioner, however, by the impugned order the trial court has directed deletion/striking of issue nos.3 and 4. The reasoning adopted by the trial court are two fold: (1) that in the Misc. Civil Appeal bearing No. 204/01 which was preferred by the present petitioner against the order passed below Exh.5. the first appellate court has held that no notice under sec. 164 of Maharashtra Co- operative Societies Act would be necessary as the relief claimed in the suit does not pertain to the business of the society and as the suit is not touching the business of the society the suit is maintainable. The learned counsel for the petitioner has submitted that the observations made by the first appellate court in a Misc. Civil Appeal arising out of an order passed below Exh. 5 3 are prima facie in nature and the said observations in no way conclude the issue. The observations obviously are prima facie in nature and does not decide the issue. Thus it can be safely said that the trial court has committed a patent illegality in holding that as the question is already decided by the first appellate court, while hearing the Misc. Civil Appeal, the issue no.4 is rendered redundant. 3. Another line of reasoning so far as issue no.3 is concerned, is to the effect that as the petitioner had earlier moved an application under section 9(A) of CPC for framing of preliminary issue about the maintainability of the suit for want of consent or permission of the Charity Commissioner as is envisaged by sections 50 and 51 of the B.P.T.Act, and as the said application was rejected, the same amounts to rejection of the plea on merit. The order passed below Exhs. 14 and 17 was on an application moved by the petitioner urging the trial court to frame a preliminary issue under section 9(A) and the rejection of the said application would only mean that the court declined to frame a preliminary issue. No preliminary issue was framed and as such to hold that the said issue has been answered against the present petitioner, would be wholly illegal and improper. Thus for striking of issue nos.3 and 4, untenable reasons are recorded in the impugned order, requiring the same to be set aside. 4. In the result writ petition is allowed. The impugned order passed by the trial court dated 27-9-2007 striking of issue nos.3 4 and 4 is quashed and set aside. It is made clear that the trial court shall frame all the issues including issue nos.3 and 4 and decide the same in accordance with law. Writ petition is disposed of. (A. P. Deshpande, J.)