IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8216 OF 2022 Arjun Narayan Patil Age: 68 years, Occu.: Agri., R/o. Dongargaon, Tq.Pachora, Dist.Jalgaon. ..Petitioner (Original Defendant)

VERSUS Shitalkumar Balchand Jain Age: 51 years, Occu.: Money Lender, R/o. Pachora, Tq.Pachora, Dist.Jalgaon. ..Respondent (Original Plaintif)

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Advocate for Petitioner : Shri Vikram R. Dhorde Advocate for Respondent : Shri T.K.Sant ...

CORAM : M.G.SEWLIKAR, J.

DATE : 20th August, 2022 ORAL JUDGMENT :-

1. Rule. Rule made returnable forthwith. With the consent of the parties, petition is taken up for hearing for fnal disposal at the admission stage.

2. This petition is preferred against the Judgment and order passed by the learned Civil Judge, Junior Division, Pachora, Dist.Jalgaon, dated 29^th June, 2022 in R.C.S. No.23 of 2012, thereby rejecting applications Exhibit-162 i.e. for framing of additional issues and Exhibit-170 i.e. for producing 7/12 extracts.

3. Facts necessary for disposal of this petition can be stated briefy thus :

Respondent - original Plaintif fled Special Civil Suit No.428 of 2005 (subsequently numbered as R.C.S. No.23 of 2012) for declaration that the plaintif has become owner of the suit property vide conditional sale deed dated 14^th June, 1999 and also for the declaration that the right of purchase by the defendant is extinguished.

4. The allegations made in the plaint are that on 14^th June, 1999, plaintif purchased suit property for consideration of Rs.1,50,000/- by registered sale deed. It was agreed that if the amount was paid within a period of three years, the sale deed will be treated as cancelled else it will be treated as out and out sale.

5. Petitioner - original Defendant fled written statement and contended that the defendant has not executed sale deed. It was a money lending transaction. Plaintif is not an agriculturist. He does not own agricultural implements also. It is alleged that plaintif is a money lender.

6. Petitioner – original Defendant fled an application Exhibit- 162 for framing additional issue whether the plaintif is an agriculturist. Another application Exhibit-170 was fled vide which the plaintif was called upon to produce 7/12 extract. These applications came to be rejected by the learned trial Court by the impugned order observing that the issues involved in the suit are whether the plaintif is doing illegal money lending business and whether the plaintif purchased suit property vide sale deed with a condition of re-purchase. Thus, the learned trial Court found that the issue proposed by the defendant as to whether the plaintif is agriculturist or not is not germane for the decision of the suit. This order is impugned in this petition.

7. I have heard learned counsel for the petitioner and learned counsel for the respondent.

8. Learned counsel for the petitioner submits that the petitioner has specifcally raised the defence in the written statement that the plaintif is not an agriculturist. The petitioner – original defendant has contended that plaintif is a money lender and therefore, he was not competent to purchase the suit property since he is not an agriculturist. This issue goes to the root of the matter. He placed reliance on the case of Topa Dhenu Rathod Vs. Maheshkumar Shankarlal Agrawal [1996 (2) Mh.L.J., 426].

9. Learned counsel for the respondent – original plaintif submits that the defendant did not raise this issue till the entire evidence is over. He submits that the application is fled just to prolong the litigation. This issue is not germane for the decision of the suit. He submits that the issue involved in the suit is whether the sale deed is out and out sale or it is the sale with a condition of re-purchase. He submits that for the decision of this issue, it is not necessary for the Court to frame issue as to whether respondent – original plaintif is an agriculturist or not.

10. Admittedly, the sale deed in question has been executed by the petitioner -