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 WRIT WRIT PETITION NO. 8905 OF 2007 PETITION NO. 8905 OF 2007 PETITION NO. 8905 OF 2007 Maj. Sarwan Kumar Lamba (Retd.) ... Petitioners & Anr. Vs. Maniklal Futurmal Baldota & Ors. ... Respondents Mr. G.S. Godbole for the Petitioners. Mr. R.D. Soni for Respondent no.1 Mr. A.B. Tajane for Respondent No. 2 CORAM CORAM CORAM : P.B. MAJMUDAR, J. : P.B. MAJMUDAR, J. : P.B. MAJMUDAR, J. DATE DATE DATE : 2ND MAY, 2008 : 2ND MAY, 2008 : 2ND MAY, 2008 P.C. P.C. P.C. :- :- :- 1. By filing this petition, the Petitioners have challenged the Order of the trial Court dated 20/11/2004 below Exhibit ‘I’ as well as the order dated 09/02/2007 below Exhibit 150 in Special Civil Suit No.1594 of 1994. 2. The petitioners are the original defendant Nos. 7 and 8 in the said suit. The Plaintiff has filed the suit for damages. It seems that originally the trial Court had framed issue about the title asking the plaintiff to prove his title. However, by an order dated 20/11/2004, the said issue which was issue No. 1 regarding title was deleted at the instance of the respondent- 2 original plaintiff. The present petitioners thereafter submitted another Application below Exhibit 150 requesting the trial Court to recast the issue as to the title of the Plaintiff to the suit property. By the order dated 9/2/2007, learned trial Judge has rejected the said prayer for recasting the issue. Therefore, the said orders below Exhibit 1 and Exhibit 150 are challenged at the instance of the original defendant Nos. 7 and 8 by invoking extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Since this petition has been filed at an inter locutory stage and considering the fact that the plaintiff is required to prove his case before the trial Court in connection with suit claim, Mr. Godbole, learned Counsel appearing for the Petitioners submitted that in case if it is so required, petitioners may be allowed to challenge the aforesaid order in case the petitioners are required to file an appeal against the decree of the trial Court. In my view, since the suit is still pending, this Court would not like to exercise powers under Article 227 of the Constitution of India at such an interlocutory stage. The petitioners, however, given liberty to 3 raise the point which is raised in this petition in appeal in case the petitioners are required to file appeal against the decree of the trial Court. Accordingly, it will be open to the petitioners to challenge this aspect regarding recasting the issue in the appeal if petitioners are required to file appeal against the decree of the trial Court. 3) In view of the said liberty, learned Counsel for the petitioners wants to withdraw this petition. Permission granted. The Petition is dismissed as withdrawn. ( P.B. MAJMUDAR, J.) P.B. MAJMUDAR, J.) P.B. MAJMUDAR, J.)