SKYLINE CONSTRUCTION Vs. JOMA CHAAHU MHATRE (SINCE DECEASED)
HIGH COURT OF BOMBAY
Joma Chaahu Mhatre (Since Deceased)
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Shalini Phansalkar Joshi, J. -
(1.) Rule. Rule is made returnable forthwith. Heard finally, at the stage of admission itself, by consent of Mr. Oak, learned counsel for the Petitioners, and Mr. Dani, learned Senior Counsel for Respondent No.2.
(2.) By these Writ Petitions, filed under Article 227 of the Constitution of India, the Petitioner-Firm is challenging the order dated 13th November 2017 passed by the Civil Judge, Senior Division, Panvel, below the applications filed by Respondent No. 2 in Special Civil Suit No.30 of 2011 and Special Civil Suit No. 32 of 2011 for dismissal of the Suit for inaction on the part of the present Petitioner-Firm since framing of the issues.
(3.) The Trial Court has, after considering the submissions advanced before it, by learned counsel for Respondent No.2 that the Suit itself is not maintainable and evidence need not be recorded, in pursuance of the issues, as the Petitioner-Plaintiff is not entitled to the relief of specific performance of the contract, in view of the bar created under Section 16 of the Specific Relief Act, 1963, framed the following issue and ordered it to be decided as preliminary issue. The relevant portion of the order of the Trial Court reads as follows :-
"(3) .......Hence, the following preliminary legal objection is taken up for hearing prior to recording of evidence, in order to ascertain feasibility of disposal of Suit only on legal objection.
"Whether suit for specific performance of contract is maintainable in the light of Section 16 of the Specific Relief Act, 1963, on the face of the plaint and plaint documents ?";
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