Jammu & Kashmir High Court
Uoi And Ors. vs Learned Principal District Judge Jammu ... on 8 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OW104 No.37/2017, MP No.01/2017
Date of order: 08.11.2017
UOI and ors. Vs. Learned Principal District Judge Jammu and Ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/Appellant(s) : Mr. Sandeep Gupta, Advocate.
For respondent (s) : Mr. Anil Sethi, Advocate.
The petition is admitted for hearing. With consent of learned counsel for the parties, the matter is heard finally.
2. In this petition under Section 104 of the Constitution of State of Jammu and Kashmir, the petitioner has assailed the validity of the order dated 13.10.2016 passed by the Principal District Judge Jammu by which the application filed by the petitioner under Order 14 Rule 5 for amendment / reframing of issue No.4 and for shifting the onus of proof of the same upon the respondent No.2/plaintiff has been dismissed.
3. Facts leading to the filing of this writ petition briefly stated are that respondent No.2 has filed a suit seeking compensation from the petitioners and the pro forma respondents to the tune of Rs.4,34,40,000/- along with interest from the date of accrual of actual damages till realization of the same. The petitioners in the aforesaid civil suit have filed written statement in which specific defense has been taken that the petitioners has reasonable and probable cause to the context and pursue the litigation in the preliminary objections as well as in the written statement to the plaint. In view of the pleadings of the parties, by an order dated 07.08.2010, the Trial Court framed 13 issues. Issue No.4 reads as under:
"4. Whether the pursual of the case by defendants No.1 to 3 from 14.10.1992 to 26.04.2008 was bona fide?"
OW104 No.37/2017, MP No.01/2017 Page 1 of 34. Thereafter the petitioners filed an application for amendment/reframing of issue No.4 and for shifting the onus of proof on the respondent No.2/Plaintiff. The aforesaid application has been rejected by the Trial Court.
5. Learned counsel for the petitioners submitted that since the respondent No.2/plaintiff has filed a suit for malicious prosecution, therefore the burden of proving the issue No.4 ought to have been on the plaintiff. In support of the aforesaid submission, learned counsel for the petitioners has referred to the decision of the Supreme court in the case of Bank of India v. Lakshimani Dass, 2000 (3) SCC 640, and has submitted that the suit is based on tort for abusing the process of court and under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is a improper motive. On the other hand, learned counsel for the plaintiff has submitted that the issues has to be framed on the basis of the pleadings of the parties and petitioners in their written statement have stated that they have right to defend the suit and they were under legal obligation to defend the suit and have a legal right to pursue the case being Union of India, therefore, the burden is on the petitioners to prove the aforesaid issue.
6. I have considered the submissions made by learned counsel for the parties.
From perusal of the pleadings of the suit, the suit is one for compensation. The defendants in unequivocal terms in the written statement have stated that they have right to defend the suit and have legal obligation to defend the same and have legal right to pursue the case being Union of India. It is trite law that burden to prove the fact lies on the person who asserts the same. Viewed thus, it is evident that burden to prove the issue No.4 namely whether the pursual of the case by defendants 1 to 3 from 14.10.1992 to 26.04.2008 was bona fide, in view of pleadings of the defendants in the OW104 No.37/2017, MP No.01/2017 Page 2 of 3 written statement is required to be proved by them. In other words, the burden to prove the aforesaid fact is on the defendants as they have asserted the aforesaid fact. The order passed by the Trial Court neither suffers from any jurisdictional error nor any error apparent on the face of record warranting interference of this Court in exercise of its supervisory jurisdiction.
7. In the result, I do not find any merit in the petition. Accordingly, the same is dismissed along with connected MP.
(Alok Aradhe) Judge Jammu 08.11.2017 Raj Kumar OW104 No.37/2017, MP No.01/2017 Page 3 of 3