1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.728 OF 2010 Shrikrishna Haribhau Gore .. Petitioner versus Chandrashekhar Prabhakar Nargude & Ors. .. Respondents Mr.Kedar Patil for the petitioner. Mr.Amit Sale for the respondents. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . I have heard the submissions of the learned counsel appearing for the parties. As suit of the year 2000 is pending, the petition is taken up for final disposal. 2. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 4th September 2009 passed by the trial Court by which application at Exhibit 51 filed by the petitioner-defendant was rejected. The application was filed for recasting of the issues. 3. The respondents-plaintiffs filed a suit for specific performance of 2 Agreement for Sale dated 16th December 1985 as well as specific performance of agreement recorded in the consent decree dated 10th January 1986 passed in Regular Civil Suit No.115 of 1985. The suit is being contested by the petitioner by filing written statement. Issues were framed at Exhibit 35. The first issue is whether the respondents prove that they are entitled to specific performance of the agreement. The second issue framed is whether the respondents are entitled to execution of Sale Deed. The third issue is based on contention raised by the petitioner regarding bar of limitation and the fourth issue is again based on contention raised in the written statement by the petitioner that the agreement was got executed in compelling circumstances without free consent of the petitioner. 4. An application was made by the petitioner at Exhibit 51 praying for framing additional issues. The first issue was of readiness and willingness of the respondents-plaintiffs. The second suggested issue was on the basis of contention of the petitioner that the suit for specific performance was premature. The third suggested issue is based on contention in paragraph 5 of the written statement that the respondents are not entitled to seek specific performance of the contract. The fourth suggested issue is on the basis of contention raised by the petitioner that the agreement was illegal. The fifth 3 suggested issue is also based on the contention regarding illegality of the agreement. The sixth suggested issue is the based on contention that the agreement gives unfair advantage to the respondents over the petitioner and therefore it cannot be enforced specifically. The seventh suggested issue is on the basis of contention of the petitioner that he cannot be compelled to perform his part of the agreement within any specified time as against his wishes. The last suggested issue is on the contention of the respondents that the execution of the agreement had partly commenced as stated in paragraph 6 of the plaint. 5. The learned counsel appearing for the petitioner submitted that the issues suggested arise on the basis of the pleadings and therefore the issues ought to have been framed. The learned counsel appearing for the respondents invited my attention to the judgment and decree passed in Regular Civil Suit No.195 of 1990 and contended that the suggested issue Nos.1,4 and 5 have been already decided in the said suit and therefore the trial Court rightly invoked principles of constructive res-judicata. On the principles of res- judicata, he relied upon certain decisions of the Apex Court. 6. I have carefully considered the submissions. The issues are 4 required to be framed on the basis of pleadings of the parties and other material on record of the suit. Section 16(c) of the Specific Relief Act mandates that the plaintiff in a suit for specific performance is under an obligation to aver and prove his readiness and willingness. The first suggested issue is on the readiness and willingness which certainly arises. 7. The 2nd and 3rd suggested issues are based on specific contentions of the petitioner in the written statement. The fourth suggested issue is covered by fifth suggested issue which no doubt arises on the basis of the pleadings. The finding of the trial Court is that the findings in the earlier suit operate as res-judicata. The issues arising out of the pleadings will have to be framed. Whether principles of res-judicata operate or not is a question which will have to be decided by the trial Court at the time of final hearing of the suit. Proposed issue No.6 is based on specific pleading of the petitioner that the suit agreement gives unfair advantage to the respondents over the petitioner. Therefore, the said issue will have to be framed. Issue No.7 as suggested is covered by suggested issue Nos.2 and 3. Issue No.8 will be covered by the first suggested issue. Hence, the impugned order will have to be modified accordingly. 5 8. Hence, I pass the following order: : O R D E R : (a) The impugned order is modified. (b) The application at Exhibit 51 is partly allowed. (c) The trial Court is directed to frame suggested issue Nos. 1,2,3,5 and 6 as additional issues. The trial Court will accordingly carry out modifications to the issues at Exhibit 35. (d) The issue regarding res-judicata based on the judgment and decree in Regular Civil Suit No.195 of 1990 is kept open and while deciding the issues the Court will have to consider whether the said judgment and decree operates as res- judicata. (e) Petition is partly allowed in above terms. (A.S.OKA,J)