- (1.) BY way of the instant writ petition, the petitioners have beseeched to quash and set-aside the order dated 6th September, 2008, whereby the learned Additional District Judge No. 9, Jaipur City, Jaipur dismissed the application of the petitioners-defendants filed under Order 14 Rule 5 CPC, wherein they proposed the issue to be settled.
(2.) ADUMBRATED in brief, the facts of the case are that the respondent-plaintiff no. 2 filed a suit for recovery of money on execution of the alleged document against the petitioners-defendants and defendants no. 3 and 4 in the Court of Additional District Judge No. 9, Jaipur City, Jaipur. Pursuant to the service of summons, the petitioners-defendants and respondents no. 3 and 4 appeared in the Court and filed the written statement of defence. The Court settled the issues based on pleadings of both the parties. During the pendency of the suit, the petitioners-defendants filed an application under Order 14 Rule 5 CPC imploring that the proposed issue may also be settled as the receipt is the basis of the payment of money. The plaintiff-respondent is said to have lent the money to the petitioners-defendants pursuant to the receipt dated 24th July, 2004, whereas the petitioners-defendants neither raised any loan from the plaintiff-respondent nor executed any receipt in his favour. On the basis of this denial, the petitioners-defendants proposed an issue and filed the application imploring the same proposed issue to have been added for the just decision of the suit. Learned counsel for the petitioner-defendants canvassed that the burden to prove the issue no.1 has been laid on the plaintiff, whereas the burden to prove the proposed issue may be laid on the petitioners-defendants. He took me through the provisions of Indian Evidence Act and endeavoured to impress upon that they have been denying with regard to raising any loan from the plaintiff-respondent no.2 nor they executed any receipt in favour of the plaintiff, hence, he has to prove this proposed issue. Thus, it is required to be settled for the purpose of just decision of the suit. E converso, the learned counsel for the respondent ? plaintiff no.2 has defended the impugned order and stated the same to be just and proper and further contended that it does not warrant any intervention. Having reflected over the submissions made by learned counsel for the parties and carefully scanned the contents of the application of the petitioners-defendants, it is revealed that petitioners ? defendants have denied in written statement of defence that neither they raised any loan from the plaintiff nor executed any receipt in favour of the plaintiff-respondent no. 2. It is merely a denial. When the plaintiff-respondent is said to have given a loan to the defendants and the petitioners-defendants have denied the same, then it is for the plaintiff-respondent no.2 to prove the fact that he gave loan and was entitled to claim Rs. 2,35,541/- from the petitioners-defendants. Since the fact has been asserted by the plaintiff, hence the burden is also being laid on the petitioners-defendants to prove the same. Under these facts and circumstances of the case, the learned trial court has rightly observed that there was no necessity to settle the proposed issue. The argument, put forth by the learned counsel for the defendants-petitioners in this regard is not found to be tenable. The impugned order, albeit, is found to have been passed in a sketchy manner, yet the finding in this regard is just and proper, which warrants no intervention. For the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed accordingly. ;