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2022 Supreme(Raj) 2127
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mahendar Kumar Goyal, J.
Devi Sahay Mittal & Ors. – Appellants
Versus
Sitaram Aggarwal & Ors. – Respondents
S.B. Civil Writ Petition No. 1717 of 2022
Decided On : 08-03-2022
Mr. Faraz Hussain, for the Appellant.
The burden of proof regarding the limitation of a suit may be placed upon the defendants if the court is satisfied from the Office report and on prima facie perusal of the plaint that the suit is within limitation.
Headnote:
Burden of Proof - Civil Suit - The court dismissed the application filed by the defendants under Order 14 Rule 5 read with Section 151 CPC, contending that the burden of proof of the suit being barred by limitation should have been upon the plaintiff instead of the defendants. The court held that the burden of proof was rightly placed upon the defendants, and the application was dismissed due to the delay in raising the objection and the timing of the application.
Fact of the Case:
The respondent filed a suit for declaration, cancellation of lease deed, possession, permanent injunction, and mesne profit against the petitioners/defendants. The defendants filed an application contending that the burden of proof of the suit being barred by limitation should have been upon the plaintiff instead of the defendants. The application was dismissed by the trial court.
Finding of the Court:
The court found that the burden of proof was rightly placed upon the defendants, and the application was dismissed due to the delay in raising the objection and the timing of the application.
Issues: The main issue was the placement of the burden of proof regarding the suit being barred by limitation.
Ratio Decidendi: The court held that the burden of proof was rightly placed upon the defendants, and the timing of the application raised by the defendants was not bona fide, leading to the dismissal of the application.
Final Decision: The writ petition was dismissed for being devoid of merit.
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. 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
