Rajasthan High Court - Jodhpur
Jitendra Singh vs Chandra Mohan Middha on 5 July, 2022
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3790/2022
Jitendra Singh S/o Shri Malkiyat Singh, Aged About 61 Years, By
Caste Jat Sikh, Resident Of 5 M 20, Jawahar Nagar, Near
Agrasen Tempoo Stand, Sri Ganganagar (Rajasthan).
----Petitioner
Versus
1. Chandra Mohan Middha S/o Shri Murari Lal Middha, By
Caste Arora, Resident Of 74, G Block, Sri Ganganagar
(Rajasthan).
2. Smt. Nirmla Devi W/o Shri Murari Lal Middha, By Caste
Arora, Resident Of 74, G Block, Sri Ganganagar
(Rajasthan).
3. Mahendra Singh Brar S/o Shri Jagnandan Singh, By Caste
Jat Sikh, Resident Of Chak 14 Q, Tehsil Sri Karanpur,
District Sriganganagar (Rajasthan).
4. Surendra Pal Singh S/o Shri Jagsir Singh, By Caste Jat
Sikh, Resident Of 1-C-1, Jawahar Nagar, Opposite Lic
Office, Sri Ganganagar (Rajasthan).
5. Amarjeet Kaur, By Caste Jat Sikh, Resident Of Chak 14 Q,
Tehsil And District Sriganganagar (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Sandeep Bishnoi
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order
05/07/2022
This writ petition has been filed by the petitioner being
aggrieved with the order dated 16.02.2022 passed by the
Additional District Judge No.1, Sri Ganganagar (hereinafter to be
referred as 'the trial court') whereby, the application filed by the
petitioner under Order 18 Rule 17 read with Section 151 CPC has
been dismissed.
(2 of 3) [CW-3790/2022]
The brief facts of the case are that the respondent Nos.1 and
2 here-in have filed a suit for partition, possession and permanent
injunction against the petitioner and the respondent Nos.3 to 5.
On the basis of the pleadings of the parties, the trial court has
framed as many as four issues, out of which, burden of proving
three issues is upon the respondent Nos.1 and 2, however, the
burden of proving remaining issue is upon respondent No.5
Amarjeet Kaur.
The petitioner has moved an application before the trial court
with a prayer for framing an additional issue, which was allowed
by the trial court vide order dated 25.10.2021. The trial court has
observed that in respect of a plot, the petitioner has raised an
objection that the same is required to fall in his share as he has
paid 10% extra amount for the same. While allowing the said
application, the trial court has placed burden of proving the same
upon the petitioner and also directed him to produce evidence to
prove the same.
Later on, the petitioner has moved an application under
Order 18 Rule 17 read with Section 151 CPC with a prayer to
summon the plaintiffs for giving further evidence in relation to the
newly framed issue. The said application was opposed by the
plaintiffs as well as the other defendants and the trial court has
rejected the same while observing that since the burden of
proving the newly framed issue is upon the petitioner, the
plaintiffs are not required to give further evidence in respect of the
same.
The trial court is of the opinion that the petitioner had an
opportunity to cross-examine the plaintiffs on the said issue at the
time of their evidence because he has already raised this point in
(3 of 3) [CW-3790/2022]
his written statement, but he has failed to do do. The trial court
has further observed that the petitioner cannot be allowed to fill
up the lacunae which he left at the time of the evidence of the
plaintiffs.
Having heard the learned counsel for the petitioner and after
going through the material available on record, I do not find any
illegality in the impugned order passed by the trial court as the
burden of proving newly added issue is upon the petitioner and he
cannot be allowed to fill up the lacunae in his evidence.
Hence, this writ petition being bereft of force is hereby
dismissed.
Stay petition is also dismissed.
(VIJAY BISHNOI),J
10-AjaySingh/-
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