DEVI SAHAY MITTAL Vs. SITARAM AGGARWAL

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is directed against the order dtd. 2/12/2021 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 Sec. 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 12/8/2016. After completion of the evidence of the parties, the case was fixed for final arguments on 16/2/2021. On 21/9/2021, 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 dtd. 2/12/2021, 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: