2006 Supreme(SC) 438

2006(4) Supreme 62
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
Anil Rishi—Appellant
versus
Gurbaksh Singh—Respondent
Civil Appeal No. 2413 of 2006
(Arising out of SLP (Civil) No. 5963 of 2006)
Decided on 2-5-2006
Counsel for the Parties :
For the Appellant : Ms. Suresh Kumari, A.P. Mohanty Advocates.
For the Respondent : Shalil Sagar, Pratap Venugopal, E. Venu Kumar for M/s. K.J. John and Co. Advocates.

IMPORTANT POINT
Burden of proving the fact rests on party who substantially asserts the affirmative issues and not the party who denies it.

Headnote:Evidence Act, 1872—Sections 101, 102 and 111—Burden of proof—Rests on the party who substantially asserts the affirmative issues and not the party who denies it—Suit for declaration that sale deed allegedly executed by respondent was forged, fabricated and void document—Appellant-defendant contested suit—Trial Court framed the issue whether sale deed was forged and fabricated as alleged—On the application of respondent issue was reframed whether the alleged sale deed was a valid and genuine document—Revision filed by appellant-defendant was dismissed by High Court on basis that when a person was in a fiduciary relationship with another and latter was in a position of active confidence burden of proving absence of fraud, misrepresentation or undue influence was on person in dominating position—Appeal—Defendant-appellant had not admitted or acknowledged the fiduciary relationship—Averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence was drawn—Distinction between a burden of proof and onus of proof—Initial onus was always on plaintiff—Impugned judgment could not be sustained.

       Held : The burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The application in his written statement denied and disputed the said averments made in the plaint. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance.(Paras 9 to 11)

       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. 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.(Para 18 and 19)