1. This Revision petition, which is directed against the way in which an issue was framed throwing the burden upon the petitioners/defendants raises certain interesting questions involving the aspects which trial courts have to bear in mind when framing issues. The distinction between the legal burden and the evidentiary burden is important, while the former does not shift the latter 'a continuous process of shifting of onus of proof' does. The expressions 'burden of proof' and 'onus of proof' (how the legal burden and evidentiary burden are more accurately described) are employed to separately denote them, so that much of the confusion that often results by using them interchangeable can be avoided.
2. The facts out of which this petition arises may be briefly noticed. The first responded/plaintiff filed the present suit, out of which this revision arises, for a mandatory injunction against the petitioners/defendants requiring them to quit the Chabutra (a raised platform) situate in front of Property No. 17/139, situate at Gali No. 5, Than Singh Nagar, Anand Parbat. Delhi on the allegation that the petitioners along with Deep Chand (2nd defendant/respondent No. 2) and licensee of the remaining vacant space (of certain dimensions) were lessees of the shop and the chabutra. According to the petitioners they were tenants under the plaintiff (first respondent) of one shop bearing the above said number along a certain portion of suit land but were tenants of the other portions of vacant land (along with some more) under Ram Jas College Society, Delhi (not a party to the suit). An issue regarding non-joinder of the said Society was held in favor of the plaintiff and against the defendants by B. C. Misra, J., in Cr 342 of 1970 by order dated 28-8-1970.
3. Among other issues the trial court framed the following issues 1 to 2 on 2-4-1968:
(1) Whether the disputed Chabutras are not in Possession of the defendants as licensees? (onus objected to)?
(2) Whether the Chabutras in question are in the tenancy of the defendants, if so to what effect?
On 21-1-1969 the trial court appears to have recast the issues framing the following issue (3) among others and deleting the issues (1) & (2) framed on 2-4-1968: 'Whether the disputed chabutra is not in possession of defendants as licensee and rather as tenant, if so, its effect? OPD.'
4. The defendants/petitioners made an application under Order 14 Rule 5 C. P. C. on 13-7-1970, even before B. C. Misra. J. had decided Cr 342 of 1970 requesting the trial court to delete the above-mentioned issue (3) and frame the following three issues:
(1) Whether the defendants are in Possession of the land measuring 16 ft 6 inches towards North 13 ft 6 inches towards South, 30 ft. towards East and 31 ft. towards West as shown in red and green in the Plan under the plaintiff ?
(2) Whether the defendants are licensees under the Plaintiff with respect to the Portion shown in red in the Plan attached with the plaint ?
(3) Whether the defendants are tenants under the plaintiff with respect to the Portion of land pleaded in para. 3 of the written statement ?
5. It was, alleged in that application that the above said issue (3) had been framed in the above manner (throwing the burden on the defendants) an the basis of a letter dated 12-4-1960, said to have been written by Deep Chand (second defendant and guardian of the third defendant when he was a minor) to the plaintiff. It is the plaintiff's case that the defendant requested him to grant lease and license to the defendants allowing them only the use of the Portion of the Chabutra extending towards the North and South of the Chabutra shown in green in the plan submitted along with the written statement with effect from 12-4 1960. This was denied by the defendants whose plea was that the second defendant did not know Urdu. English or Hindi. But knew only 11undi language: in the above application dated 13-7-1970 he had further stated that he was illiterate, and did not know Urdu script. The plaintiff. Who had cordial relations with the second defendant is alleged to have taken advantage of the same by asking him (defendant No. 2) to sign a paper written in Urdu script (which he did not know) on the representation that the same related to the premises let out to the first defendant and the rent Payable by the first defendant to him and that the same was required for filing before the house tax authorities (Municipal Corporation of Delhi) in connection with the demand to enhance the house tax. The second defendant says he signed the same believing such representations. It was later discovered, on inspecting the file before the trial court, that the signature of the second defendant had been obtained by fraud, misrepresentation and concealment of the contents of the letter. That latter, according to the translation furnished by the plaintiffs counsel, reads as follows.
'Shriman Pandit Hari Shanker Ji,
It is submitted that I have taken on rent your shop No. 139 including Chabutra situated at Ramgarh, Thansingh Nagar, Anand Parbat, Delhi for Purpose of Coal and Wood. As the Chabutra to the extent of the shop is under my tenancy and I have to obtain a license, I have given a Plan of the whole of the Chabutra and without the whole Chabutra the license cannot be granted to me. thereforee, for the time being, I have to obtain your signature on the plan and after grant of license your Chabutra will be out of the tenancy and I will remain in occupation of the Chabutra which is in my tenancy thereforee, kindly sign the Plan so that I may obtain the license.
Sd/- Deep Chand
Written on 12-4-1960.'
6. It may also be noticed that the first defendant and guardian (Deep Chand) had taken the suit shop. One Chabutra and some open land from the Plaintiff on or above 21-8-1959 at a monthly rental of Rs. 22/-; a rent note was also executed on the 5th of March 1960 by Deep Chand in favor of the plaintiff. That the said shop and Chabutra are under the tenancy of the first defendant is not in dispute: what is in dispute, however, is the vacant land which is adjacent to the same while the land in dispute was allegedly given to the contesting defendants on license on 12-4-1960; according to the contesting defendants the disputed land Plus another piece of land (not in suit) had been taken on lease by them from the Ramjas College Society. It may be recalled that the defendants-case was that the land in dispute was never given to them by the plaintiff on license. On the contrary, that part of the land, in dispute was covered by tenancy granted by the Plaintiff and the other Part by the tenancy from the Ramjas College Society.
7. It may also be noticed, however that B. C. Misra, J., was concerned in the afore-mentioned C. R. 342 of 1970 only with the question, raised by a separate issue (No. 4), whether the Ramjas College Society was a necessary party the said issue had been treated as a preliminary issue. But B. C. Misra, J., had explained how there was no question of any estoppel either under Section 116 or 117 of the Evidence Act in this case because the alleged license was not admitted by the defendants, and hence were entitled to deny the title of the plaintiff in respect of the disputed land. Regarding the above letter dated 12-4-1960 it was noticed by B. C. Misra. J., that its execution and reliability had been seriously challenged by the defendants. The said issue, concerning the non-joinder of Ramjas College Society consequently did not arise for decision. The defendants, thereforee were held entitled to adduce evidence to show that the land in dispute did not belong to the plaintiff but that it belonged to Ramjas College Society. The legal burden thus lay on the plaintiff to prove the alleged license, said to have been granted under the above said letter dated 12-4-1960 unless the onus of Proof (evidentiary burden) had shifted, even initially, to the defendants by reason of the said letter. This involves the further question whether the defendants had 'admitted' the execution of the said letter.
8. It is also necessary at this stage to notice that there were proceedings before the, Additional Rent Controller, Delhi (Suit No. 737 of 1970) between the plaintiff and the contesting defendants where eviction was sought of the defendants from the suit premises on the ground that they had caused substantial damage to the premises, the alleged damage being to the floors and the Chabutra by reason of the contesting defendants putting up an unauthorised chhappar (thatched roof) on the Premises, the walls were alleged to have cracked. The learned Additional Rent Controller, Delhi by his order dated 11-9-1972 found that the respondents who were tenants in respect of the platform in front of the shop which had been removed, should pay compensation of Rs.311.75 P. in default of which eviction would be ordered. It is common ground that an appeal had been Preferred against the said decision but the same had been withdrawn without prejudice to the rights of the defendants in the present suit. Nothing in these proceedings, thereforee, could be invoked against the defendants.
9. By order dated 16-1-1971 (which has now been impugned in this Revision Petition) the learned Sub-Judge 1st Class. Delhi (Shri R. L. Gupta) modified Issue No. 3 alone on an application (dated 9-12-1968) by the defendants (for deleting the same and replacing it by the three issues stated earlier) by recasting the said issue as follows:
'Whether the disputed Chabutra is not in Possession of defendants as a licensee and rather as a tenant, Partly under the plaintiff and partly under Ramjas College Society as alleged in the written statement OPD'
The order is laconic and does not reflect a full and Proper appreciation of the points that arise for decision, it does not even make any reference to the earlier order of B. C. Misra, J., which must have been surely available to the learned Sub Judge, it is stated by the learned counsel for the petitioner that the said order was also brought to the notice of Shri R. L. Gupta.
10. Not much assistance being available from the impugned order the facts Pertaining to the circumstances in which the application for deleting Issue No. 3 and replacing it by three other issues suggested by the Petitioners had to be set out at some length. Before entering into merits of the present controversy, however, it seems necessary to refer to certain legal principles which have to be borne in mind before issues are framed. They appear to be commonplace but an endeavor is made to set them out succinctly and comprehensively, so that trial courts may have them in mind while framing issues in contested suits.
11. Sections 101 to 106 of the Code of Civil Procedure may be read:
'101. No second appea1 shall lie except on the grounds mentioned in Section 100.
102. No second appeal shall lie in any suit of the nature cognisable by Courts of Small Causes. When the amount or value of the subject-matter of the original suit does not exceed one thousand rupees.
103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the Lower Appellate Court or which has been wrongly determined by such court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of Section 100.
xx xx xx 106. Where an appeal from any order Is allowed it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.'
12. Subba Rao, J., (as he then was) spoke for the Supreme Court in A. Raghavamma v. A. Chenchamma, : 2SCR933 and referred to the above said Sections 101 to 103; he explained distinction between 'burden of -proof' and 'onus of proof' in the following terms:
'There is an essential distinction between burden of Proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.'
13. The burden under Section 101 Civil Procedure Code has been described as legal or persuasive burden whereas the burden under Section 102 has been described as burden of adducing evidence or evidentiary burden. The burden of Proof in a criminal Proceeding will always be on the prosecution. In civil cases it is said to be on the one who would fail on the issue concerned if no evidence is let in (Taylor: Treatise on the Law of Evidence 12th Edn., P. 365). But this is more a statement of the rule of evidentiary burden than a formulation of the Principle underlying it (Mills: Law of Evidence, 3rd Edn., p. 29). Difficulty however, might arise in the case of assertion of a negative. Cross (On Evidence, 4th Edn. pages 82-92) has explained the difficulty which may some times arise concerning whether an assertion is essential to a party's case or to that of the adversary. He referred, among so many others, to a decision of the House of Lords in Joseph Constantine Steamship Line Limited v. Imperial Smelting Corporation Limited, 1942 Ac 154, by way of illustration as one where it became necessary to ascertain the legal burden of proof even after consulting the precedents concerned with the relevant substantive law. There are also statutes affecting burden of proof. The presumption which arises under Section 118 of the Negotiable Instruments Act is a well known instance in India where the legal burden will have to be cast according to the Presumption regarding Passing of consideration laid down by the said section. It is needless to multiply further instances.
14. On the question of shifting of onus reference may also be made to a decision of the Judicial Committee of the Privy Council in Kumbhan Lakshmanna v. Tangirala Venkateswarlu . Madhavan Nair. J., speaking for the Privy Council observed as follows:
'43. What is called the burden of proof on the Pleadings should not be confused with the burden of adducing evidence which is described as 'shifting'. The burden of proof of the Pleadings never shifts. It always remains constant (see Pickup v. Thames Insurance Co., (1878) 3 Qbd 594=47 Ljqb 749. These two aspects of the burden of proof are embodied in Ss. 101 and 102 respectively of the Indian Evidence Act, Section 101 states:
'Whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.
When a person is bound to prove the existence of any fact it is said that the burden of Proof lies on that Person'.
Section 102 states:
'The burden of proof in a suit or Proceeding lies on that person who would fail if no evidence at all were given on either side'.
44. This section shows that the initial burden of proving a Prima facie ease in his favor is cast on the plaintiff; when he gives such evidence as will support a Prima facie case, the onus, shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what Particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden: but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.
45. How the above rules relating to onus operate in a case is thus described by Lord Dunedin in Robins v. National Trust Co. Ltd., (1927) Ac 515 = 96 Lj Pc 84: 'Their Lordships cannot help thinking that the appellant takes rather a wrong view of what is truly the function of the question of onus in such cases. Onus is always on a Person who asserts a Proposition or fact which is not self evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion, because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Now, in conducting any inquiry, the determining tribunals, be it judge or jury will often find that the onus is sometimes on the side of one contending party. Sometimes on the side of the other, or as it is often expressed that in certain circumstances the onus shifts. But onus as a determining factor of the whole can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it and need not be further considered'.'
15. In order to come to a conclusion concerning on whom the legal burden rests in addition to the substantive law the pleadings of the parties coupled with the documents that are produced and the admissions, if any, concerning such documents, have to be taken into account. The Code of Civil Procedure contains various provisions, namely even before the stage of framing issues is reached in contested suits. When wisely and properly utilised along with the Evidence Act they will help focus attention on relevant aspects, to the exclusion of the irrelevant, and help identify clearly the issues both of law and of fact, and also know the legal and evidentiary burdens correctly. Breach of these are likely to result in unsatisfactory trials.
16. Order X of the Code of Civil Procedure Provides for the ascertainment, even at the first hearing of the suit by the court whether allegations in the plaint are admitted or denied. Either at the first hearing or on any subsequent hearing the parties or if they are unable to answer the material questions relating to the suit even their companies could be examined. Such examination would be reduced to writing and will form part of the record. Order Xi contains provisions for discovery and interrogatories; Order Xii enables any Party to the suit to give notice by his pleading, or otherwise in writing, to the other Party to admit the truth, the whole or any part of his/their case: there could also be a notice to admit documents. The Court may even pass a judgment on admissions at any stage of the suit. A notice to produce documents may also be given. Order Mii requires the documentary evidence to be produced at the first hearing of the suit no documentary evidence in the possession or power of any Party can be received at any subsequent stage of the proceedings un less good cause is shown to the satisfaction of the Court for the non-production thereof. Irrelevant or inadmissible documents may be rejected and the grounds of such rejection also recorded Documents which are admitted should contain endorsements regarding such admissions even as the rejected ones should a so contain endorsements. If any document has to be impounded the Court may order the same to be impounded. The Court may also of its own motion or otherwise send for Papers from its own records or those of other courts.
17. The manner of determining and settling issues has been dealt with by Order XIV. Every material proposition of fact or law affirmed by one Party and denied by the other shall form part of a distinct issue. material Propositions are those of law and fact which a plaintiff must allege in order to show a right to sue or a defendant must allege, in order to constitute his defense. Rule 3 of Order Xiv may be reach
'3. The Court may frame the issues from all or any of the following materials:
(a) allegations made on oath by the parties or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleading or in answers to interrogatories delivered in the suit:
(c) the contents of documents produced by either party.'
18. According to Rule 4 of Order Xiv the Court may examine witnesses or documents before framing issues. It has the Power to strike out issues even later before passing a decree. It is not as if that the Provisions in this behalf are not adequate for framing proper issues. Difficulties arise on1v by insufficient application of mind to the legal principles and the facts of each case.
19. In throwing the burden in the present case on the defendants while recasting Issue No. 3 the learned Sub Judge does not appear to have derived any advantage from the observations of B. C. Misra. J., while dismissing of C. R. 342 of 1970 or to have borne in mind the relevant principle, it seems a case of want of sufficient application of mind even to the facts of the case. The error, though one of law, is so grave that it has materially affected the jurisdiction which the trial Court exercised in recasting the issue in dispute.
20. Even though it is stated that the signature of the second defendant on the letter dated 12-4-1960 is admitted it is also stated that the document was written in Urdu script and language whereas the second defendant only knows the Mundi language but not Urdu or Hindi; he was illiterate. As the Judicial Committee of the Privy Council explained when a person not knowing the language in which the document is written affixes his thumb mark to the document the on% to prove that the document was properly explained and interpreted to the person affixing his mark. So as to make him understand its true import is on the Party relying on the document (vide 0manhena Kwamin Bassayin v. Omanhene Bendentu 11, . Having regard to the fact that it is also stated that the second defendant did not know the Urdu language or the script in which the document was written and though he signed his name in Mundi script he was illiterate the same principle would apply. There is no controversy (it is clear from the several decisions which have been cited. at the bar but to all of which no specific reference need be made) that when the Party concerned only says that he affixed his signature or thumb-mark on a blank paper that does not amount to admission of execution. On the other hand it may even amount to a clear statement that the concerned document was not executed by him in other words it would be a case of denial, not admission, of execution. It will be sufficient to cite, on this aspect Jogesh Prasad Singh v. Ramchandar Prasad Singh, AIR 1950 Pat 3740 which discussed a few cases on this question. In Lakshmamma v. M. Jayaram, AIR 1952 Kar 114 however Mallappa, J., after referring to some cases stated that if the case was that a certain person affixed his thumb impression on a blank paper on which a document was written later he had to prove that fact. I respectfully agree with this statement if it means that he would also have to make good that Plea; but if it also suggest which I doubt, that it would be sufficient to shift the onus. I would express my respectful dissent. There are observations in the same judgment to the same effect that mere admission that a man affixed his signature or thumb impression on a document did not mean that execution of the document is admitted. This observation would not enable the plaintiff to rely on this decision.
21. The mere fact of the second defendant's signature to the letter, without knowledge, cannot constitute, at this stage, an admission of execution. For that reason it cannot be held that the evidentiary burden is initially on the defendants. With some evidence led by the plaintiff on this question the onus (evidentiary burden) would shift later.
22. On a comprehensive and true view of the circumstances there seems nothing at this stage to warrant the legal burden being initially on the defendants or that the onus shifts, even before the trial starts, on to the defendants.
23. In accordance with these principles and the facts and circumstances of this case, discussed above. The legal burden ought to have been placed on the plaintiff and not on the contesting defendants. Issue No. 3 recast by the lower court will, thereforee, be refrained as follows:
'Whether the vacant land in dispute is in possession of defendants as licensee from the plaintiff OP'.
24. Evidence will be led on behalf of the plaintiff to start with, and subsequently if the plaintiff lets in evidence to show that the second defendant executed the document dated 12-4-1960 then it will be for the contesting defendants to let in evidence to show that the said document was executed by misrepresentation, fraud or concealment of facts, as alleged. There has been no dispute that the burden of proving these has been correctly placed by Issue No. 5 on the contesting defendants. The plaintiff will have an opportunity of letting in evidence by way of rebuttal an Issue No. 3 even as the contesting defendants will have an opportunity of letting in rebuttal evidence on Issue No. 5. Such rebuttal evidence will be strictly confined to facts by way of rebuttal alone bearing on those two issues.
25. It is needless to be detained by the various applications which were filed in the lower court except to point out that an application seems to have been made by the plaintiffs on 3-6-1968 (pp, 223 to 226 of the trial court record) suggesting that there should be an issue, among others, about whether the defendant was a tenant under the Ramjas College Society in respect of a certain portion as noticed already. It is even needless to be detained by any stand taken by the defendants then for the duty of framing issues correctly is upon the Court. But it is seen that no orders have been passed on this application and issues were recast suo motu by the trial court on 21-1-1969. The issue which was then framed was as follows:
'Whether the disputed Chabutra is not in possession of defendants as licensee and rather as tenant. If so, its effect? OPD.'
It was changed by the recasting of the issue by the impugned order in the manner set out above.
26. Without adverting to any of these aspects the impugned order opens with the observation that the petitioner's application for amendment was 'fourth application' filed with the contesting defendant thus conveying the idea that the said application had been filed with a view Probably to delay the proceedings. Shri Sultan Singh, learned counsel for the petitioners, has taken me through those applications in order to explain to me that none of them except the application dated 3-6-1968 (on-which no orders were passed) was made for framing of issues. It is thereforee needless to set out the details of prior applications.
27. In the result the Revision Petition is accepted as above, but in the circumstances without costs. Parties will appear before the trial court on 6-10-75.
28. Petition accepted