M.A. RAFIQ Vs. SMT. MAYA DEVI

JUDGEMENT

(1.) This is a defendant's second appeal from the concurrent decisions of the courts below decreeing the landlord's suit for his ejectment and recovery of arrears of rent from him. The defendant-appellant M. A. Rafiq is the tenant of a shop in the Agra Cantonment of which the plaintiff-respondent Smt. Maya Devi the owner and landlord. The rent was Rs. 50 p.m. The landlord brought this suit for the defendant's ejectment after obtaining the permission of the Town Rationing Officer under Sec. 14 of the U.P. Cantonments (Control of Rent and Eviction) Act X of 1952. She also alleged in her plaint that the defendant had failed to pay nine month's rent in spite of a notice of demand. The defendant resisted the suit and raised a number of pleas which need not be considered in this appeal as they were not pressed before the lower appellate court - except two, namely, that the notice of demand was not served on him and that the permission to sue was invalid as the Town Rationing Officer had been given no authority to perform any of the funcaions under the Act. The trial court held that the notice of demand had been served on the defendant who refused it, and that he had not paid the rent and was a defaulter. It also held that the defendant had failed to prove his allegations that the Town Rationing Officer did not have the necessary authority from the District Magistrate to grant the permission for ejectment. The lower appellate court confirmed these findings and the defendant has come to this court in second appeal.

(2.) Mr. M.H. Beg argued that the finding of the lower appellate court that the defendant had not proved the lack of authority of the Town Rationing Officer is erroneous as it wrongly placed the burden of proof on the defendant. Learned counsel argued recently that the burden of proving that the necessary permission had been obtained was on the plaintiff and this included the onus of proving that the permission was valid and the Officer granting it had the necessary authority. Learned counsel pointed out that the defendant expressly alleged in his written statement that the Town Rationing Officer did not have any authority and thus put the landlord to proof. I have given this argument some consideration but I am not inclined to accept it.

(3.) In a suit for the ejectment of the tenant where the landlord relies on the permission of the District Magistrate or an Officer duly authorised by him the burden is on him to prove that the permission under Sec. 3 was obtained. This can be discharged by producing a certified copy of the order of the authority which granted the permission. The plaintiff produced certified copy of an order purporting to have been passed by Sri C. P. Srivastava Town Rationing Officer Agra granting him permission to file a suit for the ejectment of the defendant. This copy contains the seal of the office of the Town Rationing Officer and has been certified as a true copy. After its production the burden shifted, in my opinion to the defendant to prove that Sri C. P. Srivastava did not have the necessary authority from the District Magistrate. Mr. Beg contended that it was very difficult for the defendant to prove a negative fact and the courts below should have called upon the plaintiff to produce the order of the District Magistrate investing Sri C.P. Srivastava with the necessary authority as this was a fact exclusively within the knowledge of the Rent Control Authorities. I am not much impressed with this argument. Difficulty of proving is one thing, onus of proof another. A fact may be difficult to prove but this fact does not shift the onus of proof. There is ample provision in the Code of Civil Procedure - such as discovery and inspection - enabling a person to call upon his opponent disclose facts which are with his knowledge. Moreover, the defendants' opponent in this case were not the state or the Rent Control Authorities but the landlord who had no more knowledge than he of the alleged lack of authority of the Town Rationing Officer. In my opinion, in a case where the tenant attacks the validity of the order of permission on the ground that it was passed by an officer with no authority from the District Magistrate, the initial burden of proving that a valid order granting permission was passed is on the plaintiff landlord, but it is discharged when the plaintiff produces a certified copy of an order which purports on the face of it made by an officer with apparent authority to pass it. After this it is for the defendant to produce some evidence in support of his allegation that the officer had in fact no authority. Sec. 102 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence were at all given on either side. Applying the principle underlying this section, I would hold that the initial burden of proving that the suit is filed with a valid permission is on the landlord who would fail if he does not produce any order purporting to give permission, but after such an order has been produced the burden would shift on the defendant who would fail if after the production of an order purporting to have been passed by an officer with authority, he produces no evidence in support of his allegation that the officer in fact had no authority. It must be noted that the burden of proof in a case does not remain constant but may keep shifting from time to time. The initial onus is of course on the plaintiff but if he discharges it and makes out a case which would entitle him to relief the onus shifts to the defendant who has to prove those circumstances which would disentitle the plaintiff to relief, and in the absence of such proof the defendant must fail. In this case the plaintiff had discharged the initial onus after which it shifted to the defendant who produced no evidence in support of his allegation of lack of authority of the Town Rationing Officer. Therefore his plea must fail.