The onus of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.

Choudhary, J.

1. This application was made on behalf of the defendants against the order of the Additional Subordinate Judge, 1st Court, Patna, dated 15-2-1957, holding that the onus of proving the justification of the order of demotion of the plaintiff and his subsequent dismissal was upon the defendants, and they should begin to lead the evidence.

2. The opposite party instituted a suit or, the allegation that the order of his demotion from the rank of Subedar Major to that of Sergeant on 14-11-1950, was illegal and ultra vires. He also prayed for a declaration that the order of dismissal dated 10-4-1953 was illegal and ultra vires on the ground that he was not given sufficient opportunity to show cause against that order and the statutory procedure was not followed. In the written statement the petitioners asserted that there was no order of the demotion made on 14-11-1950, and the opposite party did not hold the post of Subedar or Subedar Major permanently, but he was posted on officiating basis. With regard to the order of dismissal the defence was that sufficient opportunity was given to the opposite party to show cause, and the order of dismissal was legally valid. The material issues framed are as follows :

1. Is the suit bad on account of non-compliance with the provisions of Section 80, C.P.C.?

2. Is the reversion of the plaintiff to his substantive post of Sergeant and his dismissal from service wrongful, unreasonable and arbitrary, illegal, void, ultra vires, without jurisdiction and inoperative as alleged by the plaintiff?

3. Was the plaintiff guilty of dereliction of duty, irregularities, gross misconduct and moral turpitude as alleged by the defendants?

4. Was the proceeding resulting in dismissal of the plaintiff tainted with irregularities and illegalities as alleged by the plaintiff?

5. Is the plaintiffs dismissal void, illegal, ultra vires, without jurisdiction and inoperative and is the plaintiff still continuing in service?

6. Is the plaintiff entitled to recover arrears of pay as claimed?

7. Was the plaintiffs dismissal mala fide and malicious and is the plaintiff entitled to damages on that account, and if so to what extent?

8. To what reliefs or relief, if any, is the plaintiff entitled?

3. It was contended on behalf of the opposite party in the trial Court that the onus was upon the petitioners to prove that there was reasonable and probable cause for the reduction in rank and the subsequent dismissal of the opposite party. The argument was accepted by the trial Court, and it was held that the petitioners should be asked to adduce evidence first because "the entire facts bearing on the points are within the special knowledge of the defendants, and also because it is the defendants who assert that the plaintiffs demotion and dismissal are justified". The lower Court has also referred to paragraph 4 of the plaint where it is alleged that the order of the plaintiffs demotion was passed without giving any opportunity whatsoever to the plaintiff, and for this reason also the lower Court held that the entire onus was on the defendants to prove as to how the plaintiffs demotion was justified.

4. In my opinion, the order of the learned Additional Subordinate Judge is vitiated by complete misconception of law on the question of onus. The crux of the plaintiffs case is that the order of demotion made on 14-11-1950 and the order of dismissal made on 10-4-1953 are both ultra vires and without jurisdiction on the ground that the necessary legal formalities were not complied with. It is also alleged on behalf of the plaintiff that the order of dismissal is mala fide. On this ground also a declaration is prayed for by the plaintiff that the order of dismissal is a nullity in the eye of law. With regard to the order of demotion the case of the defendants is that it is not really a case of demotion, because the plaintiff was not holding on substantive basis either the post of Sergeant or that of Subedar Major,