P S SAWHNEY Vs. GANPAT RAI GUPTA

JUDGEMENT

(1.) By this petition under , 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 :-

(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.