K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.74 OF 2009 IN WRIT PETITION NO.1415 OF 2009 WITH CIVIL APPLICATION NO.85 OF 2009 IN LETTERS PATENT APPEAL NO.74 OF 2009 M/s.Zorabian Chicks Pvt.Ltd., & Anr.)..Appellants Vs. Mr.Ganesh Kashinath Agivale )..Respondent ---- Mr.J.P.Cama Sr.Advocate i/by A.K.Jalisatgi & A.B.Desai for the appellants. Mr.S.N.Deshpande for the respondent. ---- Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 16.4.2009. PC 1. This appeal takes exception to the order of the learned single Judge rejecting Writ Petition No.1415 of 2009. It appears that in a complaint pending before the Industrial Court, an application was made for dismissing the complaint without filing written statement. The Court has said that as according to the petitioner/appellant the complaint is barred by resjudicata, that issue cannot be tried as a preliminery issue. In our opinion, no exception can be taken to the order of the learned single Judge : 2 : rejecting the Writ petition. 2. In our opinion, really speaking the appellant was not justified in filing an application for dismissing the complaint without filing written statement. The proper procedure for the appellant would have been to file his written statement, request the Court to frame issues and thereafter apply for trial of any of the issues as preliminery issue and then it was for the Court to decide whether any issue can be tried as a preliminery issue or not. Appeal is therefore, disposed off. 3. However, in case the appellant files his written statement, the Court shall frame issues that may arise on the basis of pleadings and documents. Appellant in that event, shall be at liberty to file an application for trial of any of the issue as a preliminery issue. In case such an application is made, the trial Court shall decide the application on its own merits and in accordance with law. Civil Application disposed off. (D.K.Deshmukh,J) (D.K.Deshmukh,J) (D.K.Deshmukh,J) (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)