S. Chandrashekhar, J. - (1.) The learned counsel for the petitioner submits that the contesting respondents have appeared through counsel. The respondent No. 5 has refused to accept dasti notice and respondent Nos. 4 & 6 have been validly served. It is submitted that though the name of the respondent Nos. 7, 8 & 9 have been added, since they were out of station at the time when the petitioner tried to serve them, their names may be deleted from the array of parties. Ordered accordingly, at the risk and cost of the petitioner. Aggrieved by order dated 3.2.2014 whereby, the Trial Court accepted application dated 22.12.2012 for framing a preliminary issue on the maintainability of the suit, the present writ petition has been filed.
(2.) The petitioner is plaintiff in Title Suit No. 86 of 2012. The suit was filed for a decree for specifying 43% of the owner's share in Durga Rani Enclave and for undivided share in equal proportion and also for carving out 1/5th share out of 43% share of owner's allocation besides, damage of Rs. 14,000/ - per month payable to the plaintiff. Further, prayers for declaring construction over 4th floor illegal and unauthorized and for a direction to the defendant 1st party to remove the 5th floor construction have also been made in the suit. In the pending suit, application dated 22.12.2012 for framing a preliminary issue on maintainability was filed. The said application has been allowed vide order dated 3.2.2014.
(3.) The learned counsel for the petitioner submits that the Trial Court committed serious error in law in holding that a preliminary issue of maintainability requires to be framed in the suit. It is contended that before settling the issues the Trial Court could not have ordered framing of preliminary issue on the maintainability of the suit. It is further contended that existence of an arbitration agreement cannot be a ground for challenging jurisdiction of the Civil Court to entertain Title Suit No. 86 of 2012 and therefore, the Trial Court could not have ordered framing of preliminary issue on the question of jurisdiction.;