Karnataka High Court
M/S Affinity Real Estate Private vs Sri K Ramaiah on 30 November, 2017
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
WP No.21768/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Dated this the 30th day of November, 2017
BEFORE
THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR
Writ Petition No.21768 /2016 (GM-CPC)
BETWEEN:
M/S.AFFINITY REAL ESTATE PRIVATE
LIMITED, A COMPANY INCORPORATED
UNDER THE PROVISIONS OF COMPANIES
ACT 1956, HAVING ITS REGISTERED OFFICE
AT NO.12, 2ND FLOOR, 1ST MAIN ROAD
JAYAMAHAL EXTENSION
BANGALORE-560 046
REPRESENTED BY ITS DIRECTOR AND
AUTHORISED SIGNATORY
SRI.KEVAL KUMAR SHAH
33 YEARS ...PETITIONER
(By Shri S.SUBRAMANYA, Adv.,)
AND
1. SRI.K.RAMAIAH
S/O.SRI.KEMPANNA
AGED ABOUT 61 YEARS
2. SRI.RANGANNA @ D.K.RANGASWAMY
S/O.SRI.KEMPANNA
AGED ABOUT 53 YEARS
BOTH RESIDING AT DODDASANNE
VILLAGE, KASABA HOBLI
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT
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WP No.21768/2016
3. SRI.NAGARAJ
S/O LATE SRI THATHAPPA
AGED ABOUT 43 YEARS
4. SRI.SIDDARAJU @ SIDDAPPA
S/O LATE SRI THATHAPPA
AGED ABOUT 53 YEARS
5. SRI.BYREGOWDA
S/O LATE SRI THATHAPPA
AGED ABOUT 48 YEARS
6. SRI.MUNIRAJU
S/O LATE SRI THATHAPPA
AGED ABOUT 36 YEARS
7. SMT.PADMA
D/O LATE SRI THATHAPPA
AGED ABOUT 28 YEARS
8. SMT.MUNIVEERAMMA
W/O LATE SRI THATHAPPA
AGED ABOUT 78 YEARS
9. SMT.LAKSHMAMMA @ MUNILAKSHMAMMA
W/O LATE SRI MUNIRAJU
AGED ABOUT 38 YEARS
10. SMT.GEETHA
W/O.SRI.NAGARAJ
AGED ABOUT 38 YEARS
11. SMT.GOWRAMMA
W/O.SRI.SIDDAPPA @ SIDDARAJU
AGED ABOUT 48 YEARS
12. SMT.NARAYANAMMA
W/O.SRI.BYREGOWDA
AGED ABOUT 40 YEARS
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WP No.21768/2016
ALL ARE RESIDENTS OF ILTHORE VILLAGE
KUNDANA HOBLI, DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT
13. SRI.M.SHIVAKUMAR
S/O LATE SRI M S MAHADEVAIAH
AGED ABOUT 47 YEARS
RESIDING AT NO.109, 4TH MAIN ROAD
HVR LAYOUT, MAGADI MAIN ROAD
BANGALORE-560 079 ...RESPONDENTS
(By Shri B.PAPE GOWDA, Adv., FOR R1-12;
Shri K.SHRIHARI, Adv., FOR R13)
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 FILED BY THE PETITIONER/PLAINTIFF
UNDER ORDER XIV RULE 5 READ WITH SECTION 151 OF CODE OF
CIVIL PROCEDURE, 1908 FOR FRAMING ADDITIONAL ISSUES.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 27.11.2017, COMING ON FOR PRONOUNCEMENT OF
ORDER, THIS DAY, P.S.DINESH KUMAR, J., PRONOUNCED THE
FOLLOWING:-
ORDER
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. 4 WP No.21768/2016
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 5 WP No.21768/2016 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.
6WP No.21768/2016
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.
Sd/-
JUDGE cp*