IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.10897/2019 (GM-CPC) Between:
Karnataka Power Corporation Limited A Government of Karnataka undertaking Having Office at “Shakti Bhavan” No.82, Race Course Road, Bengaluru – 560 001.
Rep. By its Law Officer (SE-Fuels) Sri. Gange Gowda Age 56 years. ...Petitioner (By Sri. Yashodhar Hegde, Advocate for Sri. Ajay J. Nandalike, Advocate) And:
1. Anand Transport Private Limited, MGM-Centre, No.1, 9th Street, Dr. Radhakrishnan Salai, Mylapore, Chennai – 600 004. Represented by its General Manager K.Vasudevan.
2. The Manager, State Bank of Hyderabad, Chennai Main Branch, 2nd Line, Beach Road, Chennai – 600 001. … Respondents (By Sri. S.V. Bhat, Advocate for R-1) This Writ Petition is filed under Article 227 of the Constitution of India praying to modifying the impugned order dated 10.08.2018 (Annexure-A) passed by the XXXVIII Additional City Civil Judge, at Bengaluru passed in O.S.No.5655/2016 and direct the LXXXII Additional City Civil Judge to re-cast issue Nos.2, 4, 5, 7, 13 from Annexure-J in favour of the respondent plaintiff and etc.
This Writ Petition coming on for Orders this day, the Court made the following:-
ORDER Petitioner being the defendant in O.S.No.5655/2016 filed by the respondents herein, is invoking the writ jurisdiction of this Court for laying a challenge to the order dated 10.08.2018, whereby these application filed under Order XIV Rule 5 of CPC, 1908 for re-casting the issues having not been fully favoured, allegedly the burden of proof is wrongly placed on him.
2. The subject matter of this Writ Petition is substantially similar to the one in W.P.No.23333/2019 (GM- CPC) between T.Nagamma vs. Vibha Harish disposed off by this Court vide order dated 27.06.2019, wherein paras 2 & 4 read 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.
3. …..
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”.
In the above circumstances, this Court cannot take a different line of movement in the absence of any special circumstance obtaining in the case.
Writ Petition stands accordingly disposed off.
This order shall not come in the way of the trial Court on its own or otherwise recasting the issues and re-placing the burden of proof, if the circumstances warrant.
No costs.
SD/- JUDGE DS/-