Karnataka High Court
Smt Matilda Fernandes vs M/S.Starlet Apartment Condominium on 2 August, 2011
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
_ Mrs bys jpetned WPL 2L9O7 #2010 IN THE HIGH COURT OF KARNATAKA AT BANGALORE. DATED THIS THE 02%? DAY OF AUGUST 201). BEPORE THE HON ISLE ME.JUSTICE K. SREEDi LAR RAO Writ Petition No.21997 /20 10 iGM-cpcy 7 BETWEEN: SMT MATILDA FERNANDES | W/O MR PERCY FERNANDES AGED ABOUT 59 ¥ EARS, : . INDIAN CHRISTAN ROM LAN CATHOL 1. R/A MILAGRES CROSS. ROAD - MANGALORE ~ 560 H01 ; .. PETTTIONER (By Sri SACHIN B. S "hav, FOR. DRHARMASFE TREE ASSOC! AT HS) "AND: My 's S rARL ET APARTME NT CON DOMIENTUM, AN INSTITUTION REGISTERED UNDER ~ KARNATAKA APARTMENT OWNERSHIP ACT 1972 AS DEAR DEED OF DECLARATION . DOCU MENT NO.67/89-960 DATED 13.12.1989 _ AND REPRESENTED BY ITS DULY E LC TED SECRETARY SSOMPTHA ELIZABETH FERNANDES, W/O. MR V J FERNANDES. so GSS USSU SSL Sa Ss 2 WOPL2 TOO? F2010 AGED 59 YEARS, INDIAN, RED CROSS CATHOLIC, R/A B3, STARLET APARTMENT, KADRI SHIVABAGH ROAD, MANGALORE - 575 002 (By Sri N RAVINDRANATH KAMATH, Adv. .}> THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH 'THE IMPUGNED ORDER ON LA.NO.V DTD 13.7.10 IN 0.8.205/10 ON THE FILE.QF THE CIVIL JUDGE (JR.DN.), MANGALORE, DUK. (VIDE ANNEX-A CONSEQUETNLY ALLOW THE APPLICATION LA,NO.5 DTD 13.7.10 IN 0.8:N0.205/10 ON THE FILE OF THE CIVIL JUDGE (/R.ON.) MANGALORE DK. THIS PETITION. COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
. The-petitioner.is the defendant in the suit. The "v plaintiff filed. the suit for mandatory injunction for ~. delivery of the tile deeds. Defendant has taken the plea thal the suit is barred by limitation. The Court had "framed an issue to the effect that, "Whether defendant «RESPONDENTS > SSS rere Bs °3 WOP.Z LOST (2010 proves that the suit is barred by limitation?"'. The deftendant filed an application to recast the issue: -- contending that the burden should be cast up OLD. the plaintiff to prove that the suit is within the time. and . accordingly, prayed for recasting. of the issue. The Trial Court rejected the application. Hetice this writ petition.
2. Counsel for the petitioner submits that, it is the burden on the plaintiff to show that the suit is within limitation. The defendantkas. raised. the question of limitation in the written statement."it is pertinent to note that, it is th e duty. of the Court to see that whether the Suit is filed within the: limitation or not. It is argued that the court' should see whether the suit is filed within the lint ation 9 a inst 2 that context, the burden should be On. the plaint ff toy prove that the suit is i litation.
3. The question of limitation if it is a mixed cd
-, question of facts and law. it should be decided only after ecording of evidence. The nature of evidence that i ' 4 BEESON GUE GRR EO CUS GUE GTEC CCC. OCU aT A WLS ESO? f2010 defendant has do adduce does not change whether the burden is upon the plaintiff or defendant. In that. view. -- the plea raised by ihe defendant is only a technical plea, Therefore, it is unnecessary to interfere with the issues . framed. Accordingly, the writ petition is dismissed. cdh* SN rt RY