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M/s. Affinity Real Estate Private Limited, Represented by its Director & Authorised Signatory Keval Kumar Shah v/s K. Ramaiah & Others

    Writ Petition No. 21768 of 2016 (GM-CPC)

    Decided On, 30 November 2017

    At, High Court of Karnataka


    For the Petitioner: S. Subramanya, Advocate. For the Respondents: R1 - R12, B. Pape Gowda, R13, K. Shrihari, Advocates.

Judgment Text

(Prayer: This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the Order Dtd:29.3.2016 of the Hon'ble Senior Civil Judge and JMFC at Devanahalli in O.S.No.42/2013 at Annexure-A on I.A.No.6 in dismissing the application

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filed by the Petitioner/Plaintiff under Order XIV Rule 5 read with Section 151 of Code of Civil Procedure, 1908 for framing additional issues.)

P.S. Dinesh Kumar, J.

1. Petitioner, in this writ petition, has called in question the order dated 29.3.2016 passed in O.S.No.42/2013 on the file of Senior Civil Judge and JMFC., Devanahalli, dismissing I.A.No.6, filed by the plaintiff/petitioner.

2. I have heard Shri S.Subramanya, learned Counsel for the petitioner and Shri B.Pape Gowda and Shri K.Shrihari, learned Counsel for the respondents.

3. Shri Subramanya, learned Counsel for the petitioner, assailing the correctness of the impugned order, and adverting to paragraph No.10 of the written statement filed by the said defendant argued that the 13th defendant has pleaded in clear terms that Sy.No.123 and 124, were in existence along with Sy.No.46. Therefore, the burden to prove the said pleading rests upon the 13th respondent. Hence, the Court below ought to have allowed plaintiff's application filed under Order XIV Rule 5 of CPC to recast the issues.

4. Per contra, Shri Pape Gowda and Shri Shrihari, learned Counsel appearing for the respondents/defendants contended that, petitioner being the plaintiff is required to prove his case and cannot depend upon the pleadings of the 13th defendant. They adverted to paragraph No.3 of the plaint and argued that, it is the specific case of the plaintiff that, he is the owner in possession of land bearing Sy.No.46, new No.123 and 124. Therefore, the entire burden of proof is fully upon the plaintiff.

5. I have carefully considered the submissions made by the learned Counsel for the parties and perused the records.

6. The plaint clearly shows that plaintiff has come to the Court with a specific case that, he is the owner in possession of land bearing Sy.No.46, new No.123 and 124.

7. By the application-I.A.No.6, the petitioner/plaintiff has sought for recasting of issues, which would result in shifting the burden of proof upon the defendant No.13. It is settled law that, it is for the plaintiff to aver and prove his case.

8. In the circumstances, no exception can be taken to the impugned order passed by the Trial Court.

9. Resultantly, this writ petition must fail and is accordingly dismissed.

No costs.

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