JAGDISH PRASAD AGGARWAL Vs. SHASHI JAIN

JUDGEMENT

(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.) 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. 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 which held inter -alia: