:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 885 OF 2008 Shri Prakash Vankattal Soni and Ors. ...Petitioners Versus Geetanjali Chetanrao Dhindale and Ors. ....Respondents ====== Mr.Kishore Patil i/by. Mr.P.N.Joshi Adv. for the petitioners. Mr.Surel S. Shah Adv. for the respondent nos.1, 291 ato 294, 2bi to 2b4, 4a to 4d, 7 to 19. Mr.J.N.Pawar for repsondent no.2e. CORAM: S.C.DHARMADHIKARI, J. DATED: 25TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. By this petition under Article 227 of the Constitution of India, the petitioners are challenging an order below Exhibit-106 in Sp.Civil Suit No.412 of 1998. The petitioners are the plaintiffs in this suit. They have pleaded in the Application that the original Defendants while executing the Agreement for Sale assured them they are not Adivasis and they will hand :2: :2: :2: over the necessary documents. Accordingly they handed over the Certificate. However, in the Written Statement some of the Defendants have contended that they are Adivasis (Hindu Mahadev Koli) and hence the suit transaction cannot be enforced. 2. In such circumstances, this Application was made and the request to frame the Issue as to "Whether the Defendant nos.1 to 5 prove that they are Adivasis by caste" ? 3. This Application was opposed by some of the Defendants and by the impugned order the same has been rejected. 4. Mr.Patil appearing for the petitioners contended that the Application did request the Trial Court to not only frame this Issue but it also contained other prayers which have been completely overlooked and rejected without any application of mind. He invites my attention to paras-3 and 4 of the Application (Exhibit-160) dated 12.11.2007. :3: :3: :3: 5. After this Writ petition was heard for some time and the petition papers were perused, so also, the Affidavit with the assistance of Mr.Patil, Mr.Shah and Mr.Pawar appearing for the respective parties in the suit, it is conceeded that insofar as framing of Issue by the Trial Court is concerned, Issues No.5 and 6 shall be considered as alternate reliefs and even if the word is omitted from the said Issues, parties agree before me that they are framed on the basis of the alternate reliefs, that are prayed by the original plaintiffs. 6. The Trial Court to treat the same accordingly. 7. Insofar as, the Plaintiffs case that the Issue regarding the status of the Defendant nos.1 to 5 is concerned, at this stage, the request appears to be pre-mature. The plaintiffs have yet to prove the Agreement for Sale, inasmuch as, its contents have yet not been proved. Similarly, whether the plaintiffs are entitled to specific performance thereof on the basis that the original Defendants have refused to comply with their obligations thereunder, are matters which :4: :4: :4: are still not gone into by the Trial Court. That would also depend upon the plaintiffs proving their readiness and willingness. In such circumstances, in my view, interest of justice would be subserved, if the request, with regard to the status of the Defendant nos.1 to 5 be decided, is kept open and the said aspect be gone into at an subsequent stage. At that stage, it would be open for the original Plaintiffs to apply for appropriate reliefs. I have no doubt in my mind, if at that stage a request is made, the Trial court would consider it without being influenced by the observations in the impugned order and the rejection of the earlier request. 8. Keeping open contentions of both sides in that behalf, and since the plaintiffs had earlier pleaded an oral assurance, it would be appropriate to grant such an liberty. With this modification to the impugned order, the Writ Petition is disposed off. The Trial Court to now endeavour and dispose off the suit expeditiously. Ad-interim granted by this court stands vacated. :5: :5: :5: 9. Mr.Pawar, appears for the original Defendant No.2e who is the Respondent No.2e to this petition as well. He undertakes to file his Vakalatnama by 29.2.2008. sd/-