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 it