Rajasthan High Court
Devi Sahay Mittal vs Sitaram Aggarwal S/O Lt. Shri ... on 8 March, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1717/2022
1. Devi Sahay Mittal, (Since Died)
1/1 Smt. Kalawati Devi Mittal W/o Lt. Devi Sahay Mittal,
(Since Died)
1/2.Suresh Kumar, S/o Lt. Devi Sahay Mittal
1/3. Kamlesh Kumar, S/o Lt. Devi Sahay Mittal
1/4.Dharmendra Kumar Mittal S/o Lt. Devi Sahay Mittal,
All R/o A-289, Bassi Sitarampura, Nehru Nagar, Jaipur.
2. Rajendra Kumar Mittal S/o Lt. Devi Sahay Mittal, (Since
Died)
2/1. Smt. Kiran, Aged About 53 Years, W/o Lt. Shri
Rajendra Mittal
2/2. Utkarsh S/o Lt. Shri Rajendra Mittal (As Minor),
All Presently R/o Plot No. B-188, Bassi Sitarampura,
Nehru Nagar, Jaipur.
3. M/s S.R. Arch Steel Pvt. Ltd., Through Its Director Suresh
Kumar Mittal, Add- A-289, Bassi Sitarampura, Nehru
Nagar, Jaipur.
----Petitioner/Defendant No.1/2 to 1/4 and Defendant
No.2/1 to 2/2 & Defendant No.3 &4.
Versus
1. Sitaram Aggarwal S/o Lt. Shri Dhannalal Aggarwal, aged
about 70 years R/o B-4-B, Neel Gagan, Ambabadi, Jaipur
(Raj.)
.........Respondent/Plaintiff
2. M/s S.R. Industries, (Non - Existing)
3. Rajasthan State Industrial Development And Investment
Cooperation Ltd., Through Chairman, Add Udhyog
Bhawan, Tilak Marg, Jaipur.
4. Rajasthan Financial Corporation, Through Chairman And
Managing Director, Add Udhyog Bhawan, Tilak Marg,
Jaipur.
5. Vikram Engineering Works, Through Proprietor Kailash
Chand Kumawat S/o Shri Prabhati Lal Age About 50 Add.
H-43, Opposite Center Colony Road No. 9, Vishwakarma
Area, Jaipur.
(2 of 4) [CW-1717/2022]
----Performa Respondent/Defendnat No.3 & 5 to 7
For Petitioner(s) : Mr. Faraz Hussain
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
08/03/2022
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.
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.
Learned counsel for the petitioners contended that the
learned trial Court erred in placing burden of proof of the Issue
(3 of 4) [CW-1717/2022]
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:
Heard. Considered.
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."
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.
This Court is not satisfied with the contention of the learned
counsel for the petitioners that the burden should have been upon
(4 of 4) [CW-1717/2022]
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.
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.
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.
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.
Resultantly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/76
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