The main legal point established in the judgment is that the Court's interference in a Trial Court's decision is discretionary and should be governed solely by the dictates of judicial conscience, enriched by judicial experience and practical wisdom of the Judge.

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?”

4. The submission of learned counsel for the Petitioner is that, the Trial court has committed a grave error in framing such issue as to the preliminary objection to the maintainability of the Suit and trying it as preliminary issue. It is submitted that, the application filed by Respondent No.2 was totally on a different aspect i.e. he has sought for dismissal of the Suit on account of inaction on the part of the Petitioner to proceed with hearing of the Suit, after the issues were framed, but the Trial Court has proceeded on totally different footing and raised this objection to the maintainability of the Suit and is also trying the same as preliminary issue.

5. By pointing out to the provisions of Section 16 of the Specific Relief Act, 1963, the submission of learned counsel for the Petitioner is that, the specific performance of the contract cannot be enforced in favour of a person, if he fails to aver and prove that he has performed or is always ready and willing to perform the essential terms of the contract, which are put-forth by him, other than the terms, the performance of which has been prevented by Defendant. Learned Counsel for the Petitioner has urged that, it is a personal bar to the relief of specific performance of the contract, but the Suit for compensation can definitely be maintainable. Therefore, this is not the issue, which can be tried as a preliminary issue or preliminary objection.

6. Further the learned counsel for the Petitioner has also, by pointing out to the provisions of Order 14 Rule 2 of the Code of Civil Procedure, 1908, submitted that the preliminary issue can be framed only in relation to jurisdiction of the Court or the bar to the Suit created by any law for the time being in force. Here in the case, according to him, the absence of the averments relating to readiness and willingness to perform his part of the contract in the plaint cannot act as a bar to the Suit, created by any law for the time being in force. It is also not relating to the jurisdiction of the Court. In such situation, the Trial Court was totally wrong in framing the objection and deciding it as preliminary one. Hence, in the opinion of learned counsel for the Petitioner, this is a fit case, where this Court should intervene, interfere and restrain the Trial Court from deciding such objection as preliminary issue.

7. Per contra, learned counsel for Respondent No.2 has, on the last