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2009 DIGILAW 129 (GAU)

Prasanta Goswami v. Ramala Das

2009-02-19

T.NANDAKUMAR SINGH

body2009
ORDER T. Nandakumar Singh, J. 1. Heard Mr. N. Dhar, learned Counsel appearing for the petitioner/defendant as well as Mr. G.M. Paul, learned Counsel for the respondent/plaintiff. 2. By this revision petition, the petitioner/defendant is assailing the order dated 7-10-2008 passed by the learned Munsiff No. 1. Guwahati in Title Suit No. 818 of 2006 filed by the respondent/plaintiff. 3. For deciding this revision petition, it is not required to delve deep into the factual matrix. It will be suffice to state that the respondent/plaintiff had filed the Title Suit No. 818 of 2006 in the Court of Munsiff No. 3, Guwahati for a decree of ejectment of the petitioner/defendant from the suit premises and for recovery of the arrear rent in respect of the suit premises. It is alleged in the plaint that during the life time of Dr. Raj Kumar Das, the petitioner/defendant by a written agreement took lease of the suit premises on the 1st day of December, 1990 on monthly rental basis fixing rent at the rate of Rs. 1250/- per month with a condition that the payment shall be made within seven days of each current month. It is also pleaded in the plaint that for the petitioner/defendant his wife Geeta Goswami signed the agreement. Under the said lease agreement, the petitioner/defendant occupied the said house with his family members on the 1st day of December, 1990 and after the death of Dr. Raj Kumar Das, the respondent/plaintiff became the absolute owner of the said house and the land pertaining thereto. Thereafter the petitioner/defendant having approached the respondent/plaintiff, she agreed to sell the house and the land appertaining thereto and executed an agreement for sale dated 22-1-1996 at the price of Rs. 3,00,000/- (Rupees three lakhs only) and the petitioner/defendant paid Rs. 1,50,000/- in advance with the condition that the petitioner/defendant would pay the remaining amount of Rs. 1,50,000/- only within six months and thereafter the, sale deed shall be executed. But the petitioner/defendant in violation of the agreement of sale did not pay any amount and also rent since the month of January, 1996. There respondent/plaintiff required the rented premises, which is in possession of the petitioner/defendant, for use of her family members. 1,50,000/- only within six months and thereafter the, sale deed shall be executed. But the petitioner/defendant in violation of the agreement of sale did not pay any amount and also rent since the month of January, 1996. There respondent/plaintiff required the rented premises, which is in possession of the petitioner/defendant, for use of her family members. The respondent/plaintiff filed Title Suit No. 818 of 2006,for a decree of ejectment of, the petitioner/defendant and also for a decree directing the petitioner/defendant to pay the arrear rent as well as other reliefs. 4. The petitioner/defendant had filed written statement. The copy of the written statement as available at Annexure-2 to the present revision petition. In the written statement, the petitioner/defendant had categorically denied the landlord and tenant relationship as pleaded in the plaint and also denied that the petitioner/defendant had executed a written agreement for lease of the said house premises on the 1st day of December, 1990 on monthly rent of Rs. 1,250/-. 5. From the submissions of the learned Counsel appearing for the parties and also on perusal of the plaintiff and the written statement of T.S. No. 818 of 2006, it is clear that the petitioner/defendant is not admitting the case of the respondent/plaintiff pleaded in the plaint and also categorically denied the landlord and tenant relationship as alleged in the plaint. 6. The respondent/plaintiff filed an application under Order 18, Rule 1 of the CPC in the trial Court for a direction to the petitioner/defendant to produce the evidence first and also to furnish the copies of the documents in support of his claims. To the said application, the petitioner/defendant also filed a written objection contending that the provision of Order 18, Rule 1 of the CPC had been mis-construed and the said application is liable to be dismissed. In that written objections, the petitioner/defendant had categorically stated that the petitioner/defendant has hot admitted the fact alleged by the respondent/plaintiff in T.S. No. 818 of 2006. The learned trial Court after hearing both the parties passed the impugned order dated 7-1-2008 directing the petitioner/defendant to adduce evidence first. In the impugned order dated 7-1-2008, the learned trial Court made an observation that Section 102 of the-Indian Evidence Act says only regarding the fact that burden of proof remains upon the plaintiff to prove that the defendant is her tenant. In the impugned order dated 7-1-2008, the learned trial Court made an observation that Section 102 of the-Indian Evidence Act says only regarding the fact that burden of proof remains upon the plaintiff to prove that the defendant is her tenant. This has to be discharged only by the plaintiff during trial. 7. On perusal of the impugned order dated 7-1-2008, it appears that the learned trial Court made a finding that the burden of proof remains upon the plaintiff, i.e. the respondent herein, to prove that the defendant (petitioner herein) is her tenant. But it appears, what is confusing with learned trial Court is that whether the initial onus lies on the plaintiff or the defendant. Normally right to begin or the privilege of opening the case is decided by the rule of evidence. General rule is that the party on whom onus propandi lies should begin. 8. The Order 18, Rule 1 of the CPC clearly speaks that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. 9. In the instant case as stated above, it is a clear fact that the landlord and the tenant relationship basing on which the respondent/plaintiff filed the said. Title Suit No. 818 of 2006 for ejectment and also for recovery of arrear rent have not been admitted by the petitioner/defendant. Section 102 of the Indian Evidence Act, 1872 provides on whom burden of proof lies. Under Section 102 the burden of proof in a suit or proceeding lies on that person who would fall if no evidence at all were given on either side. 10. Mr. N. Dhar, learned Counsel appearing for the petitioner by relying An the decision of the Apex Court in Anil Rishi v. Gurbaksh Singh reported in AIR 2006 SC 1971 and also on the decision of the Madras High Court in P. Rajeshkumar Bagmar v. Swathi Rajeshkumar Bagmar reported in AIR 2008 Mad 36 contends-that in terms of Section 102 of the Indian Evidence Act, initial onus is always on the plaintiff. The Apex Court in, Anil Rishi (supra) in a clear, term held that in terms of Section 102 of the Indian Evidence Act, 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 dis-entitles the plaintiff to the same. Paragraph 19 of Anil Rishi AIR 2006 SC 1971 (supra) reads as follows: 19. 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 (i) 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 in Section 101 is inflexible. In terms of Section 102 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. 11. The ratio laid down by the Apex Court in Anil Rishi AIR 2006 SC 1971 (supra) is also followed by the Madras High Court in P. Rajeshkumar Bagmar AIR 2008 Mad 36 (supra). In that case, the Madras High Court further held that it is open to the plaintiff to say that although he has a right to begin, he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence. The plaintiff should make this statement before the defendant is called upon to adduce evidence. Paragraph Nos. 6, 7, 8 and 9 read as follows: 6. The plaintiff should make this statement before the defendant is called upon to adduce evidence. Paragraph Nos. 6, 7, 8 and 9 read as follows: 6. The procedure to be adopted at trial is laid down in Order 18, Rule 1, CPC which says that only where the defendant has admitted, some of the averments made in the plaint, then the defendant can be required to lead evidence first. In this case, no such admission by the respondent in respect of the allegations made by the petitioner that the respondent withdrew from his society without any reasonable excuse. The petitioner cannot contend that he is not required to prove an essential fact constituting his cause of action unless the facts are admitted in the pleadings of the respondent. A fact not admitted in the pleadings of the respondent, the petitioner is bound to prove the essential fact to substantiate his case. In other words, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not the party who denies it. 7. The right to begin or the privilege of opening the case is decided by Rules of evidence. The general Rule is that the party on whom onus probandi lies should begin. The strict meaning of the term onus probandi is if no evidence is given by the party on whom burden is cast, the issue must be found against him. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the earlier stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side. Burden of proof is used in three ways (i) 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 sides. The elementary rule in Section 101 is inflexible. The elementary rule in Section 101 is inflexible. In terms of Section 102 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. Followed para 19 of Anil Rishi v. Gurbaksh Singh AIR 2006 SC 1971 . 8. Where however evidence has been led by the contesting party, abstract consideration of onus is out of place and truth or otherwise must always be adjudged on the evidence led by the parties. Kalwa Debadattam v. Union of India AIR 1964 SC. It is also open to the plaintiff to say that although he has a right to begin, he may rest content with relying upon the aver merits made in the written statement and may say that he does not propose to adduce further evidence but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Followed para 5 of Balakrishna Kar v. H.K. Mahatab AIR 1954 Ori 191 . In this case the petitioner has not made any statement that he does not propose to adduce further evidence or relying upon the averments made in the counter-claim of the respondent. 12. In the present case, as the petitioner/defendant has not admitted the facts pleaded in the plaint by the respondent/plaintiff and also the pleaded fact of the respondent/plaintiff, i.e. the landlord and tenant relationship in the plaint, have been denied by the petitioner/defendant, this Court is of the considered view that it is the respondent/plaintiff, who has to adduce the evidence first. 13. For the reasons discussed above, this Court is of the considered view that the impugned order dated 7-1-2008 was passed by the learned trial Court by exercising jurisdiction not vested on him by law and also that it was passed with material irregularities. Accordingly, the impugned order dated 7-1-2008 is hereby set aside and quashed. 14. The revision petition is accordingly allowed. The parties are to bear their own costs. The Registry is directed to send down the lower Court records forthwith.