1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. APPEAL FROM ORDER NO 120 OF 2005. WITH CIVIL APPLICATION NO.8155 OF 2009. Bhaskar S/o Shankar Patil, Age 54 years occup. Agriculture, R/o Kurhad (kh) Ta. Pachora, Dist. Jalgaon. ... Appellant. (Ori.Defendant) V E R S U S Banshi S/o Kashiram Jadhav, Age 35 years, Occup. Agriculture, R/o Ishwar Colony, Jalgaon, Ta. & Dist. Jalgaon. Respondents. (Ori.Plaintiff) ..... Mr.M.S.Deshmukh, for the appellant. Mr.G.V.Wani, for respondent. ..... CORAM : P.R.BORKAR, J DATE : 28th August,2009. ORAL JUDGMENT : 1. This appeal from order is filed by original defendant being aggrieved by the order passed by learned 1st Adhoc Additional District Judge Jalgaon in Regular Civil 2 Appeal No.97/2000, decided on 25.8.2005, thereby setting aside the order passed by Joint Civil Judge (Senior Division) Jalgaon on 01.02.2000 and remanding the suit i.e. Regular Civil Suit No. 163 of 1995 to the Trial Court for fresh trial. 2. Briefly stated, present respondent/plaintiff approached to Court with a case that the defendant is owner of block No. 123/4-B admeasuring 1 Hectare 21 R and Block No. 123/1/A admeasuring 37 R situated at Kurhad Budruk,Ta. Pachora,District Jalgaon. The present appellant/defendant had agreed to sell the suit property to the plaintiff/respondent for Rs.57,500/- and accepted Rs. 45,000/- as an earnest money. He executed registered agreement to sell on 25.05.1992. The sale deed was to be executed on or before 30th April,1993 and expenses of the sale deed were to be borne equally by both. Since the sale deed was not executed by defendant, despite demand, the plaintiff/respondent filed the suit for specific performance. 3. The appellant/defendant appeared and has taken various defences including defence that the plaintiff was doing money lending business without licence. The defendant gave some incidents of money lending. He contended that suit lands were mortgaged to Land Development Bank which is a ‘Co-operative society’ and it is not made party. The trial court framed in all six issues, but did not frame issue regarding non joinder of necessary parties and about the money lending, which District the Court felt necessary. The Trial court ultimately dismissed the suit holding that the agreement of sale itself was not proved nor payment of any amount was proved. 3 4. Being aggrieved by the judgment and decree the plaintiff filed R.C.A.No. 97 of 2000 in the District Court, Jalgaon, and the same came to be decided by the 1st Adhoc District Judge,Jalgaon. The learned 1st Adhoc District Judge, Jalgaon framed points for determination and observed that, so far as points No. 6 to 9 for determination are concerned, necessary corresponding issues were not framed by the Trial Court and therefore, he remanded the matter for framing and deciding said issues. Those points 6 to 9 are as follows- 6. Whether he proves that plaintiff does money lending business without licence? 7 Whether suit claim is within limitation? 8 Whether suit is premature and,therefore, liable to be dismissed ? 9 Whether suit is bad for non- joinder of proper and necessary parties. It is this order of remand which is challenged in this appeal. 5. Heard learned Advocate Shri M.S.Deshmukh for the appellant and Advocate Shri G.V.Wani for the respondent. It is pointed out that, point/issue No. 6 as framed by learned Judge regarding plaintiff doing money lending business without licence, was formulated as per the written statement filed by the defendant. Similar point/issue 4 regarding non-joinder of necessary party was also framed as per contentions in the written statement, the learned Advocate Shri M.S.Deshmukh stated that he wants to withdraw the relevant pleadings from the written statement and accordingly filed the Civil Application No. 8155 of 2009. He wants to delete certain portion of para nos. 9 and 12 of the written statement, which relates to issue of money lending without licence. 6. So far as issue of non-joinder of the Land Development Bank is concerned, Shri G.V.Wani, advocate for respondent submitted that plaintiff had filed an application Exh. 97 in the Trial Court for adding Land Development Bank as party. The Land Development Bank is a Co-operative Society. The defendant-owner had obtained the loan from said bank and there was encumbrance on the suit property. It is also stated by both sides that, though stay order was passed by this court, unfortunately the parties did not bring the said order to the notice of Trial Court and the plaintiff has carried out amendment. The bank has not yet appeared in the suit. The court has also not taken further steps. The law is now well settled so far as scope of section 46 and 47 of the Maharashtra Co- operative Societies Act,1960 and the effect of encumbrance of of co-operative bank on the rights of the parties to transaction of contract of sale are well settled. Of course, in case specific performance is to be allowed, the parties are bound to follow the provisions of section 47 of the Maharashtra Co-Operative Societies Act. The suit would not be bad for non-joinder of the Land Development Bank as party to the suit. Therefore, remand of suit is not necessary so far as issue no.9 is concerned. The court will have to take into account the encumbrance of the Land 5 Development Bank on the land if any while giving relief of specific performance and give appropriate directions in view of sections 46 and 47 of the Maharashtra Co-Operative Societies Act,1960. 7. So far as issue nos. 7 and 8 framed by the Appellate Court are concerned, one is regarding limitation and other is regarding suit being premature. Both can not go hand to hand. In the facts and circumstances, in my opinion, both issues are not necessary and they are not warranted considering the pleadings and facts of the case. 8. In this view of the matter, in my opinion, the First Appellate Court can decide the appeal on merit as per the pleadings and evidence already on record,if permission is given to the defendant to delete the portions of para nos. 9 and 12 as prayed in Civil application No.8155 of 2009, whereby he is going to delete the pleadings regarding contention that plaintiff was/is doing money lending business without licence. After considering pleadings of parties, and portions sought to be deleted by C.A.No.8155 of 2009, in my opinion no prejudice will be caused to plaintiff if the permission is granted. So, C.A.No.8155 of 2009 deserves to be allowed. 9. So, considering the totality of circumstances, in my opinion, both Appeal From Order No 120 of 2005 and Civil Application No. 8155 of 2009 deserve to be allowed and therefore the order passed by the learned 1st Adhoc Additional District Judge Jalgaon dated 25th August 2005 is hereby set aside. The Appellate Court is directed to take Regular Civil Appeal No. 97/2000 on its file, call record and proceeding from Trial Court, and allow the defendant to 6 delete the portions from paras No. 9 and 12 of the written statement as per Civil Application No. 8155 of 2009 filed in this court. For the information of the learned 1st Adhoc Additional District Judge,a copy of Civil Application No. 8155 of 2009 be sent by Registry to the Trial Court alongwith Writ. The learned Adhoc Additional District Judge to take into consideration the evidence on record and decide the matter a fresh. He shall also consider provision of sections 46 and 47 of the Maharashtra co- operative Societies Act, 1960 while deciding the matter and give appropriate direction, if necessary. The learned 1st Adhoc Additional District Judge is directed to decide the appeal as early as possible. ( P.R.BORKAR, J) MTK/AO.120.05.