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2022 DIGILAW 808 (RAJ)

Devi Sahay Mittal v. Sitaram Aggarwal

2022-03-08

MAHENDAR KUMAR GOYAL

body2022
ORDER 1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 02.12.2021 passed by the learned Additional District Judge No.4, Jaipur Metropolitan-II in Civil Suit No.212/2012: CIS No.399/2014 whereby, the application filed by the petitioners/defendants No.1,2 & 4 under Order 14 Rule 5 read with Section 151 CPC has been dismissed. 2. The facts in brief are that the respondent No.1/plaintiff filed a suit for declaration, cancellation of lease deed, possession, permanent injunction and mesne profit against the petitioners/defendants No. 1, 2 & 4 and proforma respondents No. 2 to 5. Issues were settled on 14.10.2011 which were amended on 12.08.2016. After completion of the evidence of the parties, the case was fixed for final arguments on 16.02.2021. On 21.09.2021, the petitioners moved an application as stated hereinabove contending therein that burden of proof of Issue No.9 pertaining to the suit being barred by limitation, should have been upon the plaintiff instead of the defendants. It was, therefore, prayed that suitable amendment in the Issue be made. Vide its order dated 02.12.2021, the learned trial Court has dismissed the application which is impugned herein. 3. Learned counsel for the petitioners contended that the learned trial Court erred in placing burden of proof of the Issue No.9 upon the defendants whereas, as per the settled law, it is for the plaintiff to prove that the suit is within limitation. He, in support of his submissions, relies upon the judgment in case of Sir Mohammad Akbar Khan Vs. Mt. Motai & Ors.: AIR (35) 1948 Privy Council 36 and a judgment of co-ordinate Bench of this court in case of Chatar Singh Vs. Additional District Judge (FT) No.1, Jaipur City, Jaipur & Anr.:214 (2) WLC (Raj.) 278: 4. Heard. Considered. 5. The material on record reflects that issues were settled on 14.10.2011 wherein, Issue No.7 was to the following effect: 'Whether suit is beyond limitation-defendant.' 6. Thereafter, the Issues were amended on 12.08.2016 wherein, the aforesaid Issue was re-numbered as Issue No.9. No objection was raised at either stage by the present petitioners as to the its burden of proof placed upon them. After completion of the evidence of respective parties, the suit was fixed for final arguments on 16.02.2021. Thereafter, the Issues were amended on 12.08.2016 wherein, the aforesaid Issue was re-numbered as Issue No.9. No objection was raised at either stage by the present petitioners as to the its burden of proof placed upon them. After completion of the evidence of respective parties, the suit was fixed for final arguments on 16.02.2021. After expiry of about seven month thereafter, for the first time this objection was raised by the petitioners vide their application dated 21.09.2021 without any reason for filing the application with such inordinate delay. In view of the above, this Court does not find the application to be bona- fide. Even otherwise also, from the language in which the Issue No.9 is couched, it is apparent that it is for the defendants to establish that the suit is beyond limitation. Therefore, the learned trial Court did not err in dismissing the application filed by the petitioners at the fag end of the trial. 7. This Court is not satisfied with the contention of the learned counsel for the petitioners that the burden should have been upon the plaintiff as it is not universal law that the issue of suit being within limitation has always to be proved by the plaintiff. If the Court is satisfied from the Office report and on prima facie perusal of the plaint that the suit is within limitation, the burden of proof that the suit is barred by limitation, in view of any such objection by the defendants, may be placed upon the defendants instead of plaintiff. 8. There is another important aspect of the matter. It is trite law that once the evidence of the parties is over, the burden of proof looses its significance. In the present case, the petitioners moved the application at this stage of final arguments and hence, for the aforesaid reason also, the order does not warrant any interference. 9. Although, this Court is in respectful agreement with the law laid down by the Hon'ble Privy Council in case of Sir Mohammad Akbar Khan (supra) and a co-ordinate Bench of this Court in case of Chatar Singh (supra); but, having been rendered in different facts and circumstances, the same has no applicability in the present case. 10. The order of the learned trial Court is well reasoned and is based on material on record. 10. The order of the learned trial Court is well reasoned and is based on material on record. This court finds no justification in interfering with the order passed by the learned trial Court in its judicious discretion, in its supervisory jurisdiction. 11. Resultantly, this writ petition is dismissed being devoid of merit.