1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6446 OF 2008 Sharfoddin Kutuboddin (Tailor) Age­68 years, Occu­Tailoring R/o.Joshi Pura, Shahada, Tal.Shahada, Dist.Nandurbar PETITIONER VERSUS 1. Shaikh Ameer Shaikh Hammed (Since Deceased through L.Rs.) 1A. Nooranibi Shaikh Ameer, Age­61 years, Occu­Household, 1B. Shaikh Aslam Shaikh Ameer, Age­25 years, Occu­Service, 1C. Shaikh Akram Shaikh Ameer, Age­23 years, Occu­Service, 1D. Shaikh Saddam Shaikh Ameer, Age­21 years, Occu­Education, 1E. Nasimbi Nasikkha, Age­39 years, Occu­Household, 1F. Shamibi Shaikh Salim, Age­37 years, Occu­Household, 1G. Shaguftabi Shaikh Allauddin, Age­26 years, Occu­Household, 2 1H. Shabanabbi Shaikh Asif, Age­29 years, Occu­Household, 1I. Taslimbi Shaikh Ameer, Age­24 years, Occu­Household, 1J. Tanzimbi Shaikh Ameer, Age­21 years, Occu­Household, 1K. Shahistabi Nasirkha, Age­31 years, Occu­Household, 1L. Marjinabi Shaikh Ameer, Age­29 years, Occu­Household, 1M. Shaminabi Shaikh Ameer, Age­21 years, Occu­Household, 1N. Mumtajbi Shaikh Shakal, Age­34 years, Occu­Household, All are R/o.Joshi Pura, Shahada, Tal.Shahada, Dist.Nandurbar. RESPONDENTS Mr.P.R.Katneshwarkar, advocate for petitioner Mrs.Sabahat Kazi, advocate for respondents (CORAM : A.V.POTDAR, J.) DATE : 12/06/2009 ORAL JUDGMENT : 1. By the present writ petition under Article 227 of The Constitution of India, the petitioner/original defendant, has challenged the order passed below Exh.43 in RCS No.52/2005 passed by the Jt.Civil Judge, J.D.Shahada, dated 25/07/2008. 3 2. Considering the small law point involved in the present writ petition. Rule. 3. Rule made returnable forthwith and by the consent of the parties, the writ petition to be disposed of at the stage of admission itself. 4. The respondents who are the original plaintiffs in RCS No. 52/2005 on the file of Jt.Civil Judge, J.D. Shahada have filed the suit for possession of the suit property, which is the subject matter of the suit, on the ground that they have acquired the title to the property and claiming that the defendant/petitioner is a tenant in the property. The suit claim is contested by the petitioner by filing his written statement contending that there is no relationship of Landlord and Tenant between the parties to the suit. Also denied the title of the respondents/plaintiffs to the suit property and claimed that in case the decree of possession is passed, then more hardship will be caused to the petitioner/defendant than the hardship to be caused to the respondents plaintiff as one of the ground on which the eviction and possession is claimed is for bonafide requirement under the Provisions of Rent Act/Maharashtra Rent Control Act. On the basis of these pleadings, initial issues were framed by the Trial Court. In the said issues, as no issue is framed in respect of the title of the respondents/plaintiffs to the suit property, about the hardship to the parties and of the jurisdiction, hence an application was 4 moved at Exh.43 under Order 14 Rule 5 of CPC by the petitioner/defendant for framing additional issues. After obtaining the say of the otherside, by way of order dated 25/07/2008, the Learned Trial Court has rejected the application at Exh.43, of which the impugned order challenged under this petition. 5. Under the provisions of The Rent Act when the suit for possession is filed on the ground of bonafide requirement, then it is a legal mandate to frame the issue about to whom the hardship caused if the suit for possession is decreed. It is observed in para no.6 of the impugned order by the Learned Trial Court that even though the respondents herein have consented to frame the issue about the hardship, still the learned Trial Court rejected the application on that issue also. 6. On reading the issues framed by the learned Trial Court, issue no.1 reads as “Does the plaintiff prove that “Does plaintiff prove that the defendant is monthly tenant of suit premises ?” Bearing in mind the text of this issue, this issue is not framed as pleaded by the parties to the suit, i.e the respondents claiming that the petitioner is their tenant. According to the learned advocate for petitioner, he has no objection if the text of the issue is “Do the plaintiffs prove that defendant is their tenant ?” But as the issue pertains whether the defendant is the tenant of the suit premises and the ownership of the respondent is under dispute, then an error was committed by the Trial Court by not framing the issues about ownership/title of the 5 respondents. 7. Considering this legal aspect as regards how the issues to be framed under the provisions of Order 14 Rule 1 of CPC, out of the 3 proposed issues proposed by the petitioner, the following 2 issues required to be framed ­ 1. Do the plaintiffs prove that they are the owners of the suit property ? 2. To whom the greater hardship will cause if the suit for possession on the ground of bonafide requirement is decreed ? Thus application of the petitioner at Exh.43 is to be allowed in terms by framing these 2 issues and by quashing and set asiding the order passed below Exh.43 by the Trial Court. 8. Rule thus made absolute in terms as indicated above and the writ petition stands disposed of with no order as to costs. (A.V.POTDAR, J.) khs/wp6446­08