IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.27319 OF 2019 (GM-CPC) BETWEEN:
K.JANARDHAN, S/O LATE V.KRISHNACHARI, AGED ABOUT 47 YEARS, RESIDING AT NO.39, 5TH CROSS, 7TH MAIN ROAD, LAKSHMINARAYANAPURA, BENGALURU. … PETITIONER (BY SRI.M.V.CHANDRASHEKARA REDDY, ADVOCATE) AND:
SRI.KRISHNAPPA, S/O LATE SAMPANGIRAMAIAH, AGED ABOUT 52 YEARS, RESIDING AT NO.1270, OPP. AMBEDKAR MEDICAL COLLEGE, SHAMPURA MAIN ROAD, R.T.NAGARA POST, BENGALURU – 560032. …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 01.06.2019 I.A.NO.11 IN O.S.2817/04 REJECTING THE APPLICATION FILED BY THE PETITIONER AS PER ANNEXURE-D BY HOLDING THE SAME IS ILLEGAL AND OPPOSED TO LAW AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner being the defendant in respondent’s suit for specific performance of an Agreement to Sell in O.S.No.2817/2004, is invoking the writ jurisdiction of this court for assailing the order dated 1.6.2019, a copy whereof is at Annexure – D whereby, the learned XI Addl. Civil judge, Bangalore City, has disallowed his application in I.A.No.11 filed under Order XIV Rules 2 & 5 r/w section 151 of CPC, 1908.
2. Learned counsel for the petitioner banking upon the decision of the Apex Court in the case of Rangammal Vs. Kuppuswamy, (2011) 12 SCC 220 and the decision of a Co-ordinate Bench of this Court in the case of Chikkaveeregowda Vs. Devegowda, (1974) 2 KLJ 373, argues that the impugned order refusing to refrain the issues and replace the burden of proof is liable to be quashed; he points out that the issue No.1 covers what is stated in issue No.2 and therefore, the second issue apart from being superfluous wrongly imposes the onus on the petitioner; this is an error apparent on the face of the record and therefore, the impugned order is liable to be set-aside.
3. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this court declines to grant indulgence in the matter because:
(i) this court in more or less a similar fact matrix in the case of N.Nagamma V/s Vibha Hareesh, W.P.No.23333/2019 disposed off vide judgment dated 27.06.2019 at paragraph Nos.2 & 4, has observed as under:
“2. The learned counsel for the petitioners vehemently contends that the Court below has not only framed a wrong issue but has placed the burden of proof wrongly on the shoulders of the petitioners; this being an error of great magnitude apparent on the face of the impugned order, the same needs to be invalidated. In support of his contention he banks upon P.S. SHIVAKUMAR vs.
P.H. SUBBARAYAPPA & OTHERS, 2018 (3) KCCR 2044, A. SHANMUGAM vs. ARIYA KSHATRIAY RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM, REPRESENTED BY ITS PRESIDENT, AIR 2012 SC 2010 and SMT. SUBBAMMA & OTHERS vs. SRI KARIYAPPA & OTHERS, 2017 (4) KCCR 313.
4. The grievance of a party to the suit as to the framing, non-framing, recasting or deletion of issues, can be the subject matter of consideration by the Appellate Court, if and when such a litigant suffers an adverse judgment & decree at the hands of the trial Court, as provided under section 105 read with Order XLIII Rule 1A of CPC, 1908. Ordinarily, such orders are not scrutinized by the writ court exercising limited supervisory jurisdiction under Article 227 of the Constitution of India, of course subject to all just exceptions into which the case of the petitioner does not fit. This is the consistent view of this Court in more or less similar matters.
No special circumstances do exist in the present case warranting a different line of movement;
(ii) it is true that ordinarily the burden of proof lies on the person who asserts a proposition of fact subject to all just exceptions; when the parties go to the trial after understanding each other’s case, the burden of proof pales into insignificance; in such cases, the contention that the burden ought to have been placed or ought not to have been placed, does not have much significance; however, invocability of this proposition is obviously after the trial, which the trial court is yet to hold;
(iii) the decision cited by the learned counsel for the petitioner in the case of Rangammal, does not lay down anything inconsistent with what is observed supra; this decision lays down certain principles as to placing of the burden of proof, is beside the point; the other decision in the case of Chikkaveeregowda is rendered by a Co-ordinate Bench of this Court in totally a different fact matrix. It only holds that the trial court has got ample power to delete any issue framed by it, at any time before the judgment is actually rendered; therefore, this too does not come to much aid of the petitioner; and, (iv) the court below vide order dated 15.03.2005 has framed four principal issues; of them, the first issue is as to due execution of the agreement dated 16.02.2001, having received advance amount of Rs.7,00,000/- out of the sale price of Rs.8,50,000/-; the burden of proof in respect of issue No.1 is made to rest on the shoulders of the plaintiff, is true; the issue No.2 is as to the said agreement being forged and fabricated and the burden is placed on the petitioner/defendant; ideally speaking the first issue to a great extent covers the second issue, is also true, but the second issue arises only if the plaintiff discharges her initial burden in respect of issue No.1 and not otherwise.
In the above circumstances, this writ petition is disposed off with the above observations and liberty is reserved to the petitioner to make the impugned order a ground for challenging the judgment and decree if and when made adverse to petitioner’s interest, as provided under section 105 r/w Order XLIII Rule 1A of CPC.
It is needless to mention that the observations made herein above being cursory in nature and being confined to disposal of the writ petition, shall not influence the trial and disposal of the suit or the challenge to the judgment & decree that are yet to be made.
Sd/- JUDGE cbc