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2019 DIGILAW 1007 (GAU)

Chayna Begum Barbhuiya v. Md. Uddin Laskar

2019-09-09

MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. This second appeal by the defendant is against the judgment and decree passed by learned Civil Judge, Hailakandi in T.A.No. 3/2010, whereby the learned first appellate court dismissing the appeal filed by the defendants affirmed and upheld the judgment and decree passed by learned Munsiff, Hailakandi in T.S.No. 64/2006. 2. The respondent herein, as plaintiff, filed a suit (T.S. No. 64/2006) for declaration that the defendant No. 1 (respondent herein) is not the wife of the plaintiff and respondent No. 2 is not the son of the plaintiff and they are not entitled to any maintenance from the plaintiff. Declaration was also sought to the effect that the defendant No. 2 was the illegitimate son of the respondent No. 1. The pleaded case of the plaintiff was that he never married the defendant No. 1 and the defendant No. 2 was not fathered by him. He also denied any sexual relationship with the defendant No. 1. The plaintiff stated that defendant No. 1 is a lady of ill repute and loose moral character and various people used to visit her residence. The defendant No. 1 got pregnant by some other person and falsely lodged a criminal case against the plaintiff alleging commission of rape, whereupon Lala P.S. Case No. 106/1999 under section 376 IPC was registered. In the said case, the defendant No. 1 brought the allegation that the plaintiff, upon promise of marriage committed sexual intercourse with her, as a result of which, she became pregnant and gave birth to defendant No. 2. The defendant No. 1 filed a case under section 125 Cr..P.C. seeking maintenance for the said defendant No. 2 claiming that the plaintiff was the father of the defendant No. 2. However, in the said proceeding, the defendant No. 1 did not seek maintenance for herself. The proceeding under section 125 Cr..P.C. claiming maintenance for defendant No. 2 was dismissed for default. The plaintiff was also acquitted in the sessions case arising out of Lala PS Case No. 106/1999 u/s 376 IPC. Thereafter, the defendant No. 1 again filed a proceeding u/s 125 Cr.P.C. seeking maintenance for herself and her son, the defendant No. 2, which was dismissed by the learned Magistrate. However, on revision, the learned Sessions Judge granted maintenance of Rs. 1,000/- each for the defendant No. 1 and defendant no. 2. Thereafter, the defendant No. 1 again filed a proceeding u/s 125 Cr.P.C. seeking maintenance for herself and her son, the defendant No. 2, which was dismissed by the learned Magistrate. However, on revision, the learned Sessions Judge granted maintenance of Rs. 1,000/- each for the defendant No. 1 and defendant no. 2. Against the order passed by the learned Sessions Judge, the plaintiff preferred a revision petition before the High Court and also filed the instant suit seeking declaration inter alia that the defendant No. 1 and 2 were not his wife and son respectively. 3. The case of the defendant was that the plaintiff frequently visited the house of the father of the defendant No. 1 and developed affair with her and also established physical relationship promising to marry her, as a result of which, she became pregnant. However, later on, the plaintiff refused to marry her and therefore, she lodged an FIR. After lodging the police case, there was a village 'mel' and at the intervention of the elderly persons of the village, the plaintiff married the defendant No. 1 and thereafter, the defendant No. 2 was born. However, the plaintiff had driven out the defendant No. 1, and as such, she filed a petition seeking maintenance, which was registered as MR No. 185/1999. After filing of the said maintenance case, the plaintiff sought to settle the matter amicably and resisted the defendant No. 1 from taking steps in the maintenance case, as a result of which, the maintenance case was dismissed. However, later on she filed another case for maintenance, which is pending before the High Court. 4. On the basis of the above pleadings, learned Munsiff framed the following issues :- 1. Whether there is any cause of action for the suit ? 2. Whether defendant No. 1 is the legally married wife of the plaintiff ? 3. Whether the defendant No. 2 is the son of the plaintiff ? 4. To what relief parties are entitled to ? 5. Both the parties adduced evidence and after hearing both the sides, learned Munsiff decreed the suit of the plaintiff. Aggrieved, the defendant preferred an appeal, which also stood dismissed. Hence, the present second appeal. 6. The second appeal was admitted to be heard on the following two substantial questions of law :- 1. 5. Both the parties adduced evidence and after hearing both the sides, learned Munsiff decreed the suit of the plaintiff. Aggrieved, the defendant preferred an appeal, which also stood dismissed. Hence, the present second appeal. 6. The second appeal was admitted to be heard on the following two substantial questions of law :- 1. Whether the learned court below was justified in shifting the burden of proof on the defendants to prove that the defendant No. 2 is the son of the plaintiff ? 2. Whether the first appellate court was justified in shifting the burden of proof on the defendant No. 1 to prove that she is the legally married wife of the plaintiff, when the plaintiff had instituted the suit for declaration that the defendant No. 1 is not the legally married wife of the plaintiff ? 7. I have heard Mr. P.K. Deka, learned counsel for the appellants and Mr. F.U. Borbhuiya, learned counsel for the respondent. 8. Mr. P.K. Deka, learned counsel for the appellants submitted, referring to section 101 of the Evidence Act, that when the plaintiff brought the suit seeking declaring that defendant no. 1 was not his legally married wife and defendant No. 2 was not his son, it was the burden of the plaintiff to prove his case. However, both the courts below wrongly shifted the burden of proof on the defendants. Mr.Deka, contended that the learned first appellate court as well as the trial court misdirected themselves by wrongly shifting the burden on the defendants and therefore, arrived at a perverse and illegal finding, which needs to be interfered. Learned counsel for the respondent, however, placing reliance on a decision of this Court in State of Manipur & Ors. Vs. Soukhojam Haokip and Ors, (2011) 4 GauLT 519 contended, that the concurrent finding of facts by both the courts below to the effect, that defendant No. 1 is not the wife and defendant No. 2 is not the son of the plaintiff cannot be challenged in the second appeal. 9. On perusal of the impugned judgment rendered by the first appellate court, I find that the learned first appellate court opened the discussion of issue no. 9. On perusal of the impugned judgment rendered by the first appellate court, I find that the learned first appellate court opened the discussion of issue no. 2 stating that “it is evident from the written statement and the testimonies of the DWs that the defendants have not at all produced any supporting document to authenticate the claim that the DW1 was legally married wife of the plaintiff as claimed by the defendant No. 1” and held that the defendant no. 1 failed to substantiate her claim that she was the legally married wife of the plaintiff. Similarly the learned first appellate court started the discussion of issue no. 3 with the observation that “From the evidence on record, it appears that defendant no. 1 has failed to produce any medical documents authenticating the date of birth of defendant No. 2” and went on observing that ...................... “ Again it is obvious that the defendants in course of hearing of the suit has not filed any petition for DNA test to scientifically authenticate the claim that the plaintiff was the father of the defendant No. 2”. What is further evident from the impugned judgment is that the learned first appellate court did not even feel the necessity of showing courtesy to discuss the evidence of the plaintiff, though it was the suit filed by the plaintiff seeking declaration, rather, placed the entire burden on the defendants to hold, that defendants failed to prove their claims, as if the defendants approached the court seeking declaration as to their status, and thereby totally misdirected itself. Learned trial court is also found to have proceeded more or less in the same direction shifting the burden on the defendants, being totally unmindful of the fact, that the suit was filed by the plaintiff seeking declaration. 10. What is therefore, palpable from the impugned judgment is that the first appellate court even failed to perceive that the suit was filed by the plaintiff seeking declaration and thereby totally mis-directed itself and placed the entire burden on the defendants to arrive at the findings that the defendants have not been able to establish their claim, that the defendant No. 1 was the wife and defendant no. 2 was the son of the plaintiff. 2 was the son of the plaintiff. It is the settled position of law, that the first appellate court being the last court of facts, which enjoy all the powers of the trial court is obliged to discuss all the evidence and materials on record independently so as to come to an independent finding. However, the fist appellate court is found to have failed to discharge its duty and proceeded to decide the appeal misplacing the burden of proof, being totally unmindful of the fact, that plaintiff filed the suit for declaration and there was no counter claim from the defendants seeking any declaration as to their status. 11. It is the trite law, that in a suit filed by the plaintiff praying for declaration as to any right or status, the initial burden is always on the plaintiff to prove his claim in view of section 101 of the Evidence Act. Section 101 of the Evidence Act reads as under : “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 12. It needs to be borne in mind, that burden of proof, which rests on a party in view of the provision of section 101 of the Evidence Act is always fixed or inflexible and never shifts. What is flexible and subject to change is the onus of proof, which keeps on changing side from time to time, depending on the evidence adduced or the presumption of fact or law raised in favour of any party in course of progress of evidence. Therefore, the burden of proof and onus of proof is also distinguishable as burden of proof as matter of law and pleadings and burden of proof as a matter of adducing evidence. The former one is fixed and the later one is changeable. Initial burden of proof lies on the plaintiff, who approaches the court and expect a decision in his favour, and such burden of proof u/s 101 of the Evidence Act is inflexible. The former one is fixed and the later one is changeable. Initial burden of proof lies on the plaintiff, who approaches the court and expect a decision in his favour, and such burden of proof u/s 101 of the Evidence Act is inflexible. However, once some evidence is adduced by the plaintiff and the initial burden is discharged, which raises a presumption against the defendant, the onus of proof stands shifted to the defendant to disprove or rebut such presumption or to rebut the evidence adduced by the plaintiff. 13. The Apex Court in Anil Rishi Vs- Gurbax Singh, (2006) 5 SCC 558 dealing with the burden of proof observed as under : - “Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong question and arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same. 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 is Section 101 is inflexible. The elementary rule is 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.” 14. In the present case, the plaintiff apparently sought for declaration in negative form. The question may arise as to, when the negative facts are to be proved by the plaintiff having regard to the nature of relief sought being a declaration in negative form, whether the plaintiff would be absolved from the initial burden to prove his case as required by Section 101 of the Evidence Act or whether the basic principle of evidence as laid down in section 101 of the Evidence Act as to the burden of proof, would be relaxed in the case of the plaintiff, who requires to prove a negative fact. The law in this regard is more or less well settled. Following the ratio in Anil Rishi Vs. Gurbasaksh Singh, (2006) 5 SCC 558, this Court in the case of Legal Heirs of Chanower Hussain Vs. Nurjahan Begum, 2015 (4) GauLT 590 observed as follows :- “From the above, it is therefore, apparent that merely because it would be difficult for a litigant to lead evidence to prove a negative fact, the same cannot be a ground for dispensing with the burden of proof under section 101 and 102 of the Evidence Act.” 15. In Abrath Vs. NF Rly. Co.,11 QBD 440,457 (page 2002 of Law of Evidence by Sarkar) Bowen, L. Judge said “Now in action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such, that a judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is to be made out, the onus of proof shifts. That is not so, if the assertion of a negative is an essential part of a plaintiff's case, the proof of assertion still rests upon the plaintiff.” 16. What is therefore, amply clear that the basic rule engrafted in Section 101 of the Evidence Act is inflexible. That is not so, if the assertion of a negative is an essential part of a plaintiff's case, the proof of assertion still rests upon the plaintiff.” 16. What is therefore, amply clear that the basic rule engrafted in Section 101 of the Evidence Act is inflexible. Therefore, even when a claim or defence rests on negative a fact, the party who seeks relief on the basis of such negative fact is not absolved from discharging his initial burden of proof u/s 101 of the Evidence Act. It is altogether a different matter, that when a negative fact is required to be proved by the plaintiff, in a particular facts situation, he may not be expected to do nothing more than to substantiate his case prima facie. But merely because it may be difficult for a party to prove a negative fact, the same cannot be a ground for dispensing with the burden of proof u/s 101 of the Evidence Act. However, once the party stating negative fact and seeking a declaration in negative form, leads evidence and discharges its initial burden, onus may shift to the adverse party. Therefore, in a suit for declaration by the plaintiff, irrespective of it being in a negative or positive form, initial burden u/s 101 of the Evidence Act never shifts and the court cannot shift the initial burden only because the relief claimed is in negative form or the plaintiff is required to prove a negative fact. The impugned judgment in the present case shows, that the learned first appellate court straightway shifted the entire burden on the defendants and thereby misdirected itself, to arrive at the finding. Therefore, the conclusion and the findings arrived at by the learned first appellate court on appreciation of evidence misplacing the burden of proof, is illegal, inasmuch as, the wrong shifting of burden vitiates the judgment. Therefore, when the judgment and finding is vitiated due to wrong shifting of burden, such finding even if concurrent is amenable to second appeal. 17. In Rangammal Vs. Kuppuswami and Anr, (2011) 12 SCC 220 the Apex Court held that “Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well established dictum of the Evidence Act, that misplacing burden of proof would vitiate judgment. 17. In Rangammal Vs. Kuppuswami and Anr, (2011) 12 SCC 220 the Apex Court held that “Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well established dictum of the Evidence Act, that misplacing burden of proof 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 as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in the case of Koppula Koteshwara Rao vs. Koppula Hemant Rao, 2002 AIHC 4950 (AP).” 18. This Court in State of Manipur and Ors. Vs- Soukhonjam Hoakip and Ors. (supra) relied by learned counsel for the respondent, held that the judgment rendered by wrongly shifting the burden is amenable to second appeal. Learned Single Judge held as follows : “The Apex Court in Hero Vinoth (Minor) Vs. Seshammal, (2006) 5 SCC 545 considered the circumstances under which the High Court in a Second Appeal interfered with the concurrent finding of facts. paras 13,19 and 24 (ii) of SCC in Hero Vinoth (Minor) (supra) reads as follows :- Para 13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under section 100 CPC is very limited, and re-appreciation of evidence is not permissible (sic except) where the trial court and/or the first appellate court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under section 100 CPC after formulating a substantial question of law” para 19.It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. it is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two interferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court erroneous being the conclusions drawn by the lower appellate court erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.” para 24 (iii). The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence ; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously ; or (iii) he courts below have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it is not only refers to cases where there is total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings”. (Emphasis supplied)” 19. In the present case palpably the learned first appellate court wrongly shifted the burden on the defendants and proceeded to decide the case on appreciation of evidence, basing on the wrong shifting of burden of proof and therefor the impugned judgment rendered by the learned first appellate court and also of the trial court stood vitiated and cannot be allowed to hold the field. Therefore, the impugned judgment which is vitiated for wrong shifting burden of proof, has to be set aside and the matter needs to be remitted back to the learned first appellate court to decide the appeal afresh. 20. Therefore, the impugned judgment which is vitiated for wrong shifting burden of proof, has to be set aside and the matter needs to be remitted back to the learned first appellate court to decide the appeal afresh. 20. Though the learned Munsiff made attempt to discuss the evidence and pleadings of the plaintiff, it also more or less proceeded in the same direction to misplace the burden. Be that as it may, it would not be proper to discuss the merit of the evidence, so far adduced by the plaintiff, as the same may be prejudicial to the parties, as this Court has already made up the mind to set aside the impugned judgment and to send back the matter for fresh disposal. Therefore, I refrain myself from discussing the evidence of the plaintiff which were not touched by the learned first appellate court. 21. For the reason stated and the discussion made herein above, the impugned judgment rendered by the learned first appellate court is set aside. The record be sent back to the learned first appellate court to decide the appeal afresh keeping in view the principle of law discussed herein above. Appeal stands allowed. 22. No cost. 23. Send down the record.