Baburao Narayan Bhalke vs Ramesh Narayan Bhalke And Others
2021 Latest Caselaw 16489 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                          WRIT PETITION NO. 10713 OF 2017


Baburao s/o Narayan Bhalke
Age : 74 years, Occ. Retired
R/o Chanda, Tq. Newasa
District Ahmednagar.
                                                   PETITIONER
                                                 [ORIG.PLAINTIFF]
      VERSUS


1.    Ramesh s/o Narayan Bhalke
      Age 50, Occu : Service
      R/o Front of the Hansmukh
      Kirana Store, Vaidvadi,Savedi,
      Tq. & Dist.Ahmednagar

2]    Majid Abdulsattar Shaikh
      Age 34, Occu : Agri.
      R/o Chanda, Tq. Newasa,
      Dist.Ahmednagar

3]    Circle Officer,
      Ghodegaon, Tq. Newasa
      Dist.Ahmednagar

4]    The Talathi
      R/o Chanda, Tq. Newasa
      Dist.Ahmednagar.                           RESPONDENTS
                                                 [ORIG.DEENDANTS]

                                     .....
Mr.R.B.Temak, Advocate for the petitioner
Respondent No.1 is served through paper publication.
Mr.S.S.Kotkar,Advocate for respondent no.2.
MrK.B.Jadhavar,A.G.P. for respondent nos.3 and 4



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                                        ......

                                    CORAM : MANGESH S. PATIL, J.

DATE : 29/11/2021

ORAL JUDGMENT :-

Heard. Rule. The Rule is made returnable forthwith. The learned A.G.P.

and the learned advocate for respondent no.2 waive service. At the request of

both the sides the matter is heard finally at the stage of admission.

2] The petitioner is the original plaintiff who is claiming to be in exclusive

possession of the suit property and seeking a declaration to that effect. He is

also challenging the sale deed executed by the respondent no.1 in favour of

the respondent no.2.

3] Based on the pleadings of the parties, by passing order on the

application (Exh.46) moved by the respondent no.2 herein, who is the

defendant no.4, preliminary issues were framed touching valuation of the suit,

maintainability of the suit in view of principle of res judicata, under Order II

Rule 2 of the Code of Civil Procedure as also in view of the bar contained

under Order XXIII Rule 1 of the C.P.C. The petitioner made a request to permit

him to lead evidence by moving application (Exh.64). By order under

challenge the application has been rejected.

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4]      True it is that even order directing framing of the issues was under

challenge before this Court in Writ Petition No.8292/2017 but it was

withdrawn with liberty to the petitioner to move an application seeking

permission of the trial Court to lead evidence.

5] Whatever may be the case, it is now an admitted fact that by passage of

time the scenario has undergone a change. Section 9A of the C.P.C. has been

deleted. Though the issues which were directed to be tried as preliminary

ones are on the record, taking into account the fact that the suit was filed in

the year 2016, it would be appropriate to direct the trial Court to frame all the

issues including the preliminary ones which are already framed and try the

entire suit by extending opportunity to both the sides to lead evidence, instead

of now holding the trial in a piece-meal manner.

6] The Writ Petition is therefore disposed of with a direction to the trial

Court to frame all the issues including preliminary issues and conduct the trial

by extending opportunity to both the sides to lead evidence, as expeditiously

as possible.

[MANGESH S. PATIL,J.]

umg/