Swamikrupa Developers, Thr. ... vs Kamlesh Ashok Tawari Thr. P.O.A. ...
2017 Latest Caselaw 454 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                       WRIT PETITION NO.1268/2017


Swamikrupa Developers, 
A registered Partnership Firm, 
through its Partner - Mr. Rajendra 
Vasant Chawande, aged about 50 Yrs., 
Occu. Business, R/o 'Swamikrupa',
infront of G.S. College, Nandura 
Road, Khamgaon, Tq. Khamgaon, 
Distt. Buldhana.                                                                                                                                                ..Petitioner.

            ..Vs..

Kamlesh Ashok Tawari, 
Aged about 23 Yrs., Occu. Business, 
through his power of attorney holder
Mr. Ashok Gopikisan Tawari, R/o 
Raigadh Colony, Khamgaon, 
Tq. Khamgaon, Distt. Buldhana.                                                                                                                       ..Respondent.
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           Shri M.G. Sarda, Advocate for the petitioner. 
           Shri A.H. Daga, Advocate for the respondent.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     3.3.2017.



ORAL JUDGMENT

1. Heard Shri M.G. Sarda, Advocate for the petitioner and Shri A.H.

Daga, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

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3. The petitioner (plaintiff in Special Civil Suit No.15/2016) has

challenged the order passed by the trial Court allowing the application (Exh.

No.12) filed by the respondent under Section 10 of the Code of Civil Procedure.

It is undisputed that the written statement is not filed in Special

Civil Suit No.15/2016. As the written statement is not filed and issues are not

framed in Special Civil Suit No.15/2016, in my view, the trial Court should not

have passed orders on the application (Exh. No.12) at this stage as the

contentions of the respondent can be considered only after issues are framed in

Special Civil Suit No.15/2016.

Hence, the following order:

(i)               The impugned order is set aside.

(ii)              The application (Exh. No.12) filed by the respondent / defendant in

Special Civil Suit No.15/2016 is restored.

(iii) The trial Court shall consider and decide the application (Exh.

No.12) after issues are framed in Special Civil Suit No.15/2016.

Rule made absolute in the above terms.

In the circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.