Delhi High Court
P.S.Sawhney vs Ganpati Rai Gupta & Anr. on 20 January, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. (Main) No.811 of 2009 & C.M. Appl. No.11566 of 2009
% 20.01.2010
P.S. SAWHNEY ......Petitioner
Through: Mr. S.P. Singh Chaudhary & Mr. Y.R.
Sharma, Advocates.
Versus
GANPAT RAI GUPTA & ANR. ......Respondents
Through: Mr. N.S. Vasisht & Mr. Vishal Singh,
Advocate for R-1.
Date of Reserve: 15th January, 2010
Date of Order: 20th January, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this petition under Article 227 of the Constitution of India, the petitioner has
assailed order dated 26th May, 2009 whereby the learned Additional District Judge
decided an application under Order XIV Rules 1 & 5 read with Section 151 CPC and
made certain amendments in the issues already framed during the pendency of the trial.
The contention of the petitioner is that the trial court framed issue No.3 improperly and
burden of proof has been wrongly placed upon defendant No.1. The issue No.3 reads as
under :-
"Whether the allotment of defendant No.1 in respect of this plot
had not been validly cancelled? OPD-1"
2. It is submitted that burden should have been placed on the plaintiff, who had taken
the stand that defendant No.2 club cancelled the allotment of the plot in favour of
defendant No.1 and defendant No.1 was informed regarding cancellation.
3. Under Section 106 of Evidence Act, it is specifically provided that a fact in special
knowledge of a person has to be proved by that person and onus is on that. The
cancellation of allotment was done by defendant No.2 and how it was done, why it was
done was also within the special knowledge of defendant No.2. I, therefore, consider that
onus of this proving issue No.3 should have been on defendant No.2 instead of defendant
No.1 and not on the plaintiff. The plaintiff had merely brought this fact to the knowledge
of the court. The onus does not shift on a party bringing a fact to the knowledge of the
court unless the party is generally in possession of the evidence to prove the fact but
where the evidence is in special knowledge of the defendant, the onus has to be on the
defendant. In this case, the cancellation was in special knowledge of defendant No.2.
thus, onus should have been on defendant No.2.
4. The other contention raised is in respect of issue No.4. Issue No.4 is as under :-
"Whether the defendant No.1 continued to be in physical
possession of the plot. If so, for what period? OPD-1"
5. It is submitted by counsel for the petitioner (defendant No.1 in the court below)
that the plaintiff had taken the plea that defendant No.1 had trespassed the property and
thus, this onus of trespassing should have been on the plaintiff and defendant No.1 cannot
be burdened with the onus of proving his possession.
6. Perusal of order of the trial court shows that the trial court had reframed issue
No.2 and in issue No.2, the trial court has specifically framed an issue about forcible
possession over the plot on 8th January, 2002 as alleged by the plaintiff and onus has also
been put on the plaintiff. However, the defendant in the written statement has taken a
stand that he was in peaceful possession and maintaining a nursery and the trespass was
done by some persons on the night intervening 11th and 12th January, 2002. He has
denied about his own trespass and has alleged about his continued possession and that is
why the trial court framed this issue. The onus has to be on defendant No.1, who has
taken stand on his continued peaceful possession.
7. I find no force in the arguments regarding issue No.4. Similarly, the contention is
raised by the petitioner regarding issue No.5 and it is submitted that observation of the
learned Additional District Judge regarding issue No.5 are self-contradictory. Issue No.5
reads as under :-
"Whether the defendant No.1 had surrendered the allotment of the
plot in suit to defendant No.2? OPD-2"
8. It is urged by the counsel that existing issue No.5 must be amended and burden of
the same must be placed on the plaintiff. I consider that the burden in respect of issue
No.5 should be on the plaintiff in view of stand taken in the pleadings of the parties.
9. The other contention of the petitioner is that some additional issues were
requested to be framed by the petitioner and the same were not framed. The learned trial
court has observed that all additional issues which were sought by the petitioner were
unnecessary and the issues on points of disputes between the parties were covered by the
issues already framed. I find no reason to disagree with the order of the learned
Additional District Judge.
10. The petition is allowed to the limited extent that onus of proof in issues No.3 & 5
shall be on defendant No.2 and plaintiff respectively. Rest of the petition is dismissed.
SHIV NARAYAN DHINGRA J.
JANUARY 20, 2010
'AA'
