1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10666 OF 2009 Namdeo Bandu Shinde .. Petitioner versus Shankar Maruti Jadhav & Anr. .. Respondents Mr.P.J.Shinde for the petitioner. Mr.R.A.Thorat and Mr.P.B.Gurja for respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 23rd March 2010. P.C.: . Heard learned counsel appearing for the parties. Taken up for final disposal. The petitioner is the original plaintiff and the respondents are the original defendants. The petitioner filed a suit for declaration that the suit land was of his ownership and order passed under section 32-G of the Bombay Tenancy and Agricultural Lands act, 1948 (hereinafter referred to as the said Act) was not binding on him. A specific contention has been raised in paragraph 3 of the plaint that the order passed by the Agricultural Lands Tribunal under section 32-G of the said Act was ultra virus. An application was made by the petitioner at Exhibit 83 praying that the issue on the basis of the contention that the said order is ultra virus be framed and the same be referred to the Agricultural Lands Tribunal. By the judgment and order dated 9th September 2009, the said application was rejected. The application for review was made by the petitioner. Even the said application has been rejected. 2. After having considered the submissions made by the learned counsel 2 appearing for the parties, I find that there is a specific averment in the plaint that the order passed under section 32-G of the said Act is ultra virus and therefore is not binding on the petitioner. In fact, prayer for declaration has been based on the said contention. Therefore, the issue as contended by the petitioner certainly arises. The prayer could not have been rejected on the ground that application was belatedly made in as much as under Rule 5 of Order XIV of the Code of Civil Procedure, 1908 there is power vesting in the Court to frame additional issues at any time before passing a decree. 3. The second prayer was for referring issue to Tribunal under the said Act. In view of the decision of this court in the case of Husein Miya Dosumiya Vs. Chandubhai Jethabhai and Anr (A.I.R 1954 Bombay 239), it is not necessary to make a reference as Civil Court will have jurisdiction to decide the issue whether order under section 32-G of the said Act is ultra virus and null and void. Therefore, the petition must succeed in part and I pass following order: : O R D E R : (a) The impugned orders are quashed and set aside. (b) The application at Exhibit 83 is partly allowed. (c) The trial Court is directed to frame additional issue as prayed therein. However, prayer for making a reference under section 85A of the said Act stands rejected. (d) Writ petition is partly allowed in above terms. (e) All contentions of the parties on merits are kept open. (A.S.OKA,J)