Jagdish Prasad Aggarwal And Anr vs Shashi Jain
2014 Latest Caselaw 2157 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of Decision:30.04.2014

+      CM(M) 26/2014, CM Nos.540-41/2014 & 2019/2014

       JAGDISH PRASAD AGGARWAL AND ANR ..... Petitioners
                    Through: Mr. Prashant Shukla, Adv.

                          versus

       SHASHI JAIN                                  ..... Respondent

                          Through:      none.

       CORAM:
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE NAJMI WAZIRI

1. This petition challenges an order dated 28.3.2011 which directs

the petitioner-defendant to lead his evidence first i.e. before the

plaintiff to be called upon to lead her evidence.

2. The plaintiff had filed a suit seeking possession, damages and

mesne profits against the defendants apropos a property which she

claims to have purchased through a duly registered sale deed on

21.07.2003. She claimed to have purchased it from her husband who

was duly authorized through Power of Attorney by Smt. Manorma

Devi, widow of late Sh. Dhanpat Rai the erstwhile owner. The

defendant No.1 contested the suit on the ground that they were in

possession of the suit property for the last about 40 years and had

become owners of the same through an oral gift by the Late Sh.

Dhanpat Rai to his younger brother of Sh. Jagish Prasad-defendant

No.1. That after the framing of issues on 28.03.2011, the Trial Court

directed the defendant to lead evidence first on Issue No. 5 i.e.

"Whether the defendant becomes the owner of the suit property

through oral gift? OPD". This order was challenged in appeal which

resulted in the impugned order. The petitioner had contended that in

view of Section 101 of the Evidence Act it was the duty of the plaintiff

to prove the facts pleaded in the plaint; it would be grossly unjust to

insist upon the defendant to first prove his defence against the claim of

the plaintiff since, it was incumbent upon the plaintiff who sought to

enforce a right to first establish that right in law. The petitioner had

argued that an enforceable right must sustain itself on its own merit

and ought to be enforceable on its own strength de hors the defence

taken by a defendant.

3. The lower Courts upon considering the argument of the parties,

reasoned that the issues were framed way back on 28.03.2011; no

review application was filed against it nor was it challenged by way of

an appeal; the defendant having already led her evidence by

examining two witnesses who had been duly cross examined, were

now reluctant in leading further evidence; that although, the Trial

Court had allowed the summoning of other witnesses of the

defendants they were dragging their feet; the application seeking

shifting of onus of leading evidence first had been filed more than two

and a half years after the framing of issues on 28.3.2011; it was found

to be time barred and not maintainable; the delay had not been

explained; the defendant could not be permitted to resile from his

acceptance of the order of 28.03.2011, which acceptance was manifest

in the leading of two witnesses who have been cross-examined and

discharged. The Court concluded that the relief sought for recalling of

the aforesaid order fell in the realm of an appeal and it was therefore

not maintainable.

4. In support of the contention that Section 101 Evidence Act

required the plaintiff to prove his case first, learned counsel for the

petitioner relied upon the Supreme Court's judgment in Rangammal

v. Kuppuswami and Anr. MANU/SC/0620/2011 which held that:

"since it is well establish dictum of the Evidence Act that misplacing

burden of prove would vitiate judgment. It is also equally and

undoubtedly true that the burden of proof may not be of much

consequence after both the parties lay evidence, but while appreciating

the question of burden of proof, misplacing of burden of proof on a

particular party and recording findings in a particular way definitely

vitiates the judgment....this position stands reinforced by several

authorities including the one delivered in the case of Kippula

Koteshwara Rao v. Koppula Hemant Rao 2002 AIHC 4950 (AP)"

The said judgment also referred to State of J & K v. Hindustan Forest

Company (2006) 12 SCC 198 which held that: "the onus is on the

plaintiff to positively establish his case on the basis of material

available and it cannot rely on the weakness or absence of the defence

to discharge the onus." Learned counsel further relief upon the

Supreme Court's Judgement in Parimal v. Veena @ Bharti

MANU/SC/0105/2011 which held inter-alia:

"15.The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who

wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue."

5. Lastly, counsel relied upon the judgment in Anil Rishi

V.Gurbaksh Singh MANU/SC/8133/2006 which holds:

"There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (1) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 of the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. "

6. The law with respect of the plaintiff having to lead evidence first

has been clearly spelt out. However, the facts of the present case

would make an exception where the plaintiff claimed ownership on the

basis of a registered sale deed whereas the defendant merely on the

basis of an oral gift. The Trial Court had directed the defendant to lead

evidence first because if the defendant established his ownership over

the suit property, the plaintiff's claim of transfer of title on the basis of

the sale deed would be shattered. The contesting parties then

proceeded with the suit for more than two and a half years. The order

was unchallenged and indeed the defendant had led two witnesses who

cross examined and discharged. The petitioner-defendant was then

required to complete his evidence but he had become reluctant now,

for reasons best known to him. This Court is of the view that after two

and a half years, when the suit has progressed, the defendant could not

be permitted to resile from his acceptance of the Trial Court's order of

28.03.2011 and seek to undo the progress of the trial. Evidently, when

the issues were framed, the Trial Court felt that a degree of probability

had been brought about by the plaintiff in his favour on the basis of the

sale deed, so as to shift the onus of proof upon the defendant, in which

case it would be for the defendant to discharge his onus of proof. In

Anil Rishi Vs. Gurbux Singh (supra) the Supreme Court held:

"16. In R.V.E. Venkatachala Gounder v.

Arulmigu Viswesaraswami & V.P. Temple and Anr., the law is stated in the following terms:

"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A.

Raghavamma v. A. Chenchamma (1962) 2 SCR 933 there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts.

Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title.""

7. From the aforesaid discussion what emerges is that the onus of

proof needed to be discharged first by the defendant since his claim of

adverse possession by way of an oral gift which was never before

mentioned or asserted or declared to any third party or to the plaintiff,

extolled and inspired a lesser degree of probability as compared to a

registered sale deed transferring right, title and interest in favour of the

plaintiff. In law, the latter document would be more readily reliable in

evidence and prima facie believable. Therefore, the onus of proof

could have been shifted to the defendant to prove Issue No.5 first. The

view taken by the Trial Court is a plausible view in law. It does not

suffer from any material irregularity warranting the interference by

this Court in its revisionary jurisdiction. An appeal against the order of

28.03.2011 if maintainable, would have to be preferred before the

appropriate forum. The petition lacks merit and is accordingly

dismissed.

NAJMI WAZIRI (JUDGE)

APRIL 30, 2014/acm