- (1.) Instant writ petition has been filed by the defendant-petitioner assailing the order dt. 28/01/2011 passed by the learned trial Court whereby while partly allowing the application filed by the defendant-petitioner under Order 14 Rule 5 CPC framed an issue on limitation but shifted the burden of the same on the defendant-petitioner. Thus the controversy involved in the instant case is as to on whom the burden of proof must be thrown on the issue of limitation.
(2.) The brief facts, emerging on the face of record, are that the plaintiff-respondent filed a suit for recovery of an amount against the defendant-petitioner. It is the case of the plaintiff-respondent that the defendant-petitioner obtained a loan of Rs. 1,50,000/- from the plaintiff-respondent on interest and executed an agreement dt. 03/12/2004 in favour of the plaintiff-respondent. The plaintiff-respondent further asserted that in compliance of such agreement, interest @ Rs. 1500/- per month was paid by the defendant-petitioner to the plaintiff-respondent upto December, 2008 and thereafter neither any interest was paid nor any amount was paid towards the principal loan amount and in such situation, the plaintiff-respondent was constrained to institute a suit for recovery in the year 2009. It is pertinent to mention that in the suit, the plaintiff-respondent has nowhere elaborated upon as to how the suit was in limitation and only mentioned in Para 15 of the plaint as under:-
(3.) The defendant-petitioner put up appearance and denied the averments of the plaint by submitting his written statement. On or about 04/12/2010, the defendant-petitioner moved an application under Order 14 Rule 5 CPC demanding framing of additional issues proposed as issues No. 4 and 5 as under:-;