The burden of proving the circumstances leading to dismissal lies on the defendant, as established by Sec.106 of the Evidence Act and relevant case law.

Choudhary, J.

1. This application in revision by the plaintiff is directed against the order of the Additional Subordinate Judge first court, Arrah, holding the onus to prove issues 5 and 7 to be on the plaintiff and directing him to begin evidence on those points.

2. The petitioner instituted a title suit against the opposite parties for declaration that the orders of suspension dated the 10th of September, 1949, and of dismissal dated the 28th of May 1950, were Illegal and ultra vires, and for recovery of Rs. 8861 & odd annas being arrears of salary from September, 1949, to December, 1951. The petitioner was lecturer in the H.D. Jain College, Arrah (Defendant No. 1.).

He was appointed in August, 1943, and was made, according to his case, permanent on the 19th of December, 1943. Later on, it is stated, he was confirmed and in course of time he became the Head of the Economics Department in the College, On the 4th September, 1949, there was some clash between the students of the College and the proprietor of a hotel at Arrah as a result of which a first information report was lodged by the students alleging that the petitioner was responsible for the occurrence.

The Police submitted final report whereupon a protest petition was filed on behalf of the students before the Subdivisional Officer. He also found the case to be maliciously false and dismissed the complaint on the 17th of January, 1950. Thereafter, there were some disputes between the petitioner and the Secretary of the College, and ultimately it is said that the petitioner was suspended and later on dismissed without any reasonable cause.

3. The defence taken by the College is that the orders of suspension and dismissal were proper and justified inasmuch as the petitioner was guilty of misconduct and the enquiry committee found him to be so.

4. The suit was ultimately posted for hearing on the 5th of April, 1954, on which date it was taken up and after both the parties stated their respective case at length they were also heard on the question as to who was to begin evidence. The learned Additional Subordinate Judge held that the petitioner was to begin and consequently he was called upon to adduce evidence. Against that order the petitioner came up in revision to this Court in Civil Revn. No. 311 of 1954 (A), which was dismissed In limine. Certain observation was made by Rai, J. while dismissing the application, which is to the following effect:-

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"It is urged on behalf of the petitioner that the court below has wrongly placed the burden of proof on the plaintiff in respect of all the issues framed in the case. I do not find anything of the kind in the order dated the 5th April, 1954, passed by the trial Court. The trial court has asked the plaintiff to begin evidence in accordance with the provisions of Order 18, Rule 1 of the Code of Civil Procedure. It has nowhere said that the burden of proof on all the issues is on the plaintiff. If the question of burden of proof arises subsequently during the trial, it will be for the trial court to decide it in accordance with law. With these observations, the application is rejected."

Thereafter, the suit was taken up for hearing on the 2nd of August, 1954. A question then arose as to on whom the onus lay with regard to issues 5 and 7 and as to who was to adduce evidence at the first instance on those two issues. Issue No. 5 runs thus: "Was the order of suspension and dismissal passed by the Governing Body of the College unwarranted and without any reasonable and sufficient cause or without jurisdiction or tainted with malice and is the plaintiff entitled to challenge their decision?"

Issue No. 7 is as follows: "Was the Governing body of the H.D. Jain College, Arrah, legally constituted at all material dates and was it entitled to and Justified in suspending the plaintiff and initiating and carrying on proceedings, particularly after the dismissal of the complaint in that behalf by the court of Justice?"

The learne