SMT SUSHILA RANIDAN CHANDAKversusSMT SARITA ANANT NERKAR AND OTHERS

2026:BHC-AUG:9992



                                                                   56 WP No.7808.2017
                                                -1-

                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                                WRIT PETITION NO. 7808 OF 2017

                                SMT SUSHILA RANIDAN CHANDAK
                                              VERSUS
                           SMT SARITA ANANT NERKAR AND OTHERS
                                                   ...
              Advocate for the Petitioner : Mr. S. B. Yawalkar
              Advocate for Respondents : Mr. G. V. Wani
                                                  …
                                                WITH
                                WRIT PETITION NO. 6954 OF 2017
                                                  ….

                                CORAM : SIDDHESHWAR S. THOMBRE, J.
                                     Date : 4th March, 2026
              PER COURT :-


              1.          Heard the learned counsel for respective sides.



              2.          The petitioners raised a challenge to the order dated

              25.10.2016 passed below Exh. 25 and Exh. 32 by the learned 6 th Jt.

              Civil Judge, Junior Division, Jalgaon, in Special Civil Suit No. 131 of

              2013 and Special Civil Suit No. 133 of 2013 respectively, whereby the

              application filed by the petitioner under Order XIV Rule 5 of the CPC

              came to be rejected.


              3.          The learned counsel for petitioners submits that the suits

              are filed for specific performance of contract and the issues are framed
                                                       56 WP No.7808.2017
                                    -2-

those are at page No. 35 which are as under :-

       1.    Do plaintiff proves that agreement to sale dt. 4.1.2010
             regarding the suit property ?

       2.    Does plaintiff prove their ready and willingness to perform
             their part of contract ?

       3.    Whether time is the essence of their contract ?

       4.    Is the suit tenable in present form ?

       5.    What order and decree ?


4.           The original plaintiff have preferred an application seeking

the framing of two additional issues, as set out at page No. 36 of the

petition, as under :-

       1.    Whether the defendant proves that the transaction between
             the plaintiffs and the defendant was not an agreement to
             sell, but was intended as a security for a loan?

       2.    Whether the defendant proves that the market value of the
             field Gat No. 1662, was Rs. 1.5 Crore ?


5.           The learned counsel for the petitioner Mr. Yawalkar

submits that the Trial Court erred in rejecting the application for

framing additional issues. It is contended that the document in question

was never intended to be an Agreement to Sell, but was executed only

as a security for a loan, a specific issue must be framed to that effect.

Furthermore, the petitioner argues that the Court should frame an issue

regarding the market value of the agricultural land (Gat No. 1662),
                                                        56 WP No.7808.2017
                                    -3-

which is allegedly worth ₹1.5 Crore.


6.           Per contra, the learned counsel for the respondents Mr.

Wani opposes the petition, submitting that in a suit for Specific

Performance, the primary burden of proof lies entirely upon the

plaintiffs. It is argued that the plaintiffs must prove the execution of the

contract and their readiness and willingness; therefore, separate issues

for every defence raised are redundant and would only delay the trial.


7.           Having heard both sides and perused the record, I find that

the existing Issue No. 1 which requires the plaintiff to prove the

Agreement to Sell dated 04.01.2010, comprehensively covers the

dispute. If the plaintiffs fail to prove a valid and enforceable agreement,

or if the defendants successfully demonstrate that the document was

merely a security for a loan, the suit will naturally fail. The burden to

prove the character of the document is inherently linked to the

plaintiffs’ burden to prove a concluded contract. Therefore, the

additional issues sought by the petitioners are unnecessary, as the

primary issue already encompasses the legal scrutiny of the transaction.


8.           In view of the above, I find no error or illegality in the

orders passed by the learned Trial Court. The issues as currently framed
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                                     -4-

are sufficient for adjudication of the dispute.



9.            Accordingly, the Writ Petitions are dismissed. There shall

be no order as to costs.



10.           Pending civil applications, if any, also stand disposed of.




                                           (SIDDHESHWAR S. THOMBRE, J.)


Omkar Joshi