Delhi District Court
(2) Sh. Mukut Kumar vs (1) Sh. Bobby @ Bhupesh on 2 July, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 334/14
Case I.D. Number : 02402C0278412012
IN THE MATTER OF :
(1) Sh. Pintu @ Hitender
S/o Sh. Jai Prakash.
R/o D21, Ashok Nagar,
Delhi110093
(2) Sh. Mukut Kumar
S/o Sh. Jai Prakash
R/o D21, Ashok Nagar,
Delhi110093 ........ Plaintiffs
V E R S U S
(1) Sh. Bobby @ Bhupesh
S/o Sh. Harish Kumar
R/o C502, Near Hanuman,
Mandir, Ashok Nagar,
Delhi.
(2) Smt. Kiran
CS No. 334/14 page 1 of 21
Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
W/o Sh. Bobby @ Bhupesh
R/o C502, Near Hanuman
Mandir, Ashok Nagar,
Delhi.
(3) Sh. Harish Kumar
R/o C502, Near Hanuman
Mandir, Ashok Nagar,
Delhi. ........ Defendants
Date of Institution of suit : 28.09.2012
Received in this Court :11.03.2014
Date of argument : 02.07.2015
Date of Judgment/Order : 02.07.2015
Decision : Suit is dismissed with cost.
SUIT FOR RECOVERY
J U D G M E N T
1. The plaintiff filed this suit for recovery of Rs. 2,50,000/ alongwith
pendentelite and future interest @ 18% per annum and Rs. 5,00,000/
towards damages for malicious prosecution against the defendants.
2. As contended, the plaintiff No. 1 and defendant No. 1 were known
to each other being the neighbourers. The defendant No. 1 used to borrow
money from the plaintiff No. 1. On 20.02.12, the defendant No. 1 and 2
approached the plaintiff and requested for Rs. 2,50,000/ urgently and also
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Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
promised to return the amount within three months. The plaintiff No. 1 on
24.02.12 arranged Rs. 2,00,000/ from his mother's account and Rs.
50,000/ from his own sources and handed over to defendant No. 1 in the
presence of defendant No. 2 and 3 and promised to return within three
months. The defendant No. 1 failed to make the payment despite request
and repeated reminders and remains refused to make the payment. The
defendants made false complaint against plaintiff in PS Jyoti Nagar, Delhi
where he was called by the police. The plaintiff was harassed by the police
of PS Jyoti Nagar. As the defendants failed to make the payment and made
false complaint, this suit is filed by plaintiffs against the defendants.
3. The defendants was duly served with the summons of the suit. As
the defendants failed to file WS despite repeated and ample opportunities,
the right of the defendants to file WS was closed vide order dt. 18.02.13.
The application filed by defendants seeking further permission to file WS
was also dismissed vide order dt. 04.01.14 and case was fixed for evidence
of the plaintiff. The order dt. 04.01.14 was challenged by defendants before
Hon'ble High Court of Delhi and Hon'ble High Court of Delhi vide order
dt. 25.04.14 allowed the WS of the defendant to be taken on record subject
to payment of Rs. 15,000/ and directed to file WS in the next week. On
06.05.14, the WS was filed by defendants alongwith application for taking
on record the WS pursuant to the order of Hon'ble High Court of Delhi
CS No. 334/14 page 3 of 21
Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
which was kept on record for date fixed i.e 04.07.14.
4. In the written statement, the defendants claimed that plaintiffs have
no locus standi to file the suit, plaintiffs have suppressed the material facts
and this suit is not maintainable. As claimed, this suit is filed to harass the
defendants and the same is liable to be rejected U/o 7 Rule 11 CPC. As
mentioned, this suit is filed without any cause of action and there is no
documentary evidence of the plaintiff who substantiate his claim. It is
mentioned that this suit is bad for nonjoinder of necessary parties as
mother of the plaintiff's is not impeaded being necessary party. While
replying on merits, the defendants denying any transaction between the
parties including the transaction in question and receipt of any amount from
plaintiff No. 1. While denying the rest of the material contentions of the
plaintiffs in the plaint, the defendants prayed to dismiss the suit with cost.
5. It is reiterated that the WS was filed by defendants on 06.05.14 and
next date of hearing of the case was 04.07.14 for plaintiff's evidence. The
witness of plaintiffs and defendants were examined but the issues in this
suit was not framed inadvertently. In view of the pleadings of the parties,
following issues are framed in the suit today for adjudication of the matter.
(i) Whether the plaintiffs are entitled for decree for recovery of
Rs. 2,50,000/ along with interest @ 18 % per annum from the date
of filing of this suit till the realization ? (OPP)
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Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(ii) Whether the plaintiffs are entitled for the decree of Rs.
5,00,000/ as prayed for towards damages for malicious prosecution?
( OPP)
(iii) Relief.
6. PW 1/plaintiff has filed his affidavit by way of evidence Ex. PW1/A
and deposed regarding the case as mentioned in the plaint.
Plaintiff No. 2 also filed his affidavit by way of evidence and
examined himself as PW2 who deposed nothing but as deposed by PW1.
As no other witness remained to be examined by the plaintiff, the PE was
closed and the case was fixed thereafter for defendants evidence.
7. The Defendant No. 1 filed his evidence by way affidavit Ex. DW1/A
and examined himself as DW1 in support of contentions and denying his
liability alongwith transaction. As no other witness remained to be
examined by the defendant , DE was closed.
8. I have heard the Ld. counsel for the parties and gone through the
relevant materials on record. I have also considered the written submissions
filed on behalf of plaintiff alongwith relevant provisions of law.
9. Having drawn my attention to the pleadings of the parties, testimony
of witnesses and materials on records, it is submitted by learned counsel for
the plaintiffs that plaintiffs have proved their case and are entitled for the
amounts as prayed in the suit. It is further argued that the defence of the
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Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
defendant is shame, vague and fanciful, the defendants failed to return the
due amount to the plaintiffs despite requests and opportunities, this suit is
filed within limitation.
Learned counsel for plaintiff vehemently argued at this stage only
that WS filed by defendants cannot be considered as the defendants did not
comply the order of Hon'ble High Court of Delhi nor filed the WS within
time and the application of the defendants to take on record WS was never
allowed. It is further argued that copy of WS was also not supplied to the
plaintiffs and therefore the same cannot be taken on record or relied; the
plaint of the plaintiffs is accordingly admitted. Counsel for plaintiffs relied
upon the judgment reported as 2015(217) DLT 779 titled Isha V/s Balbir
Singh & Ors & 2011(3) R.A.J.420 titled Neo Sports Broadcast Pvt. Ltd V/s
New Sanjay Cable Network and Ors. in support of these contentions.
The Ld. Counsel for the plaintiffs while relying upon the judgments
reported as AIR 1972 ALL. 420 titled Gangadin V/s Krishna Dutt argued
that plaintiff are entitled for the damages of Rs. 5,00,000/ for malicious
prosecution and prayed to decree the suit in favour of the plaintiffs and
against the defendants.
10. The Ld. Counsel for the defendants on the other hand, having drawn
my attention to the testimony of the witnesses and documents on records
submitted that the plaintiffs have failed to prove the case and discharge the
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Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
onus. The plaintiffs was under obligation to prove his case but the plaintiffs
failed to prove their case. It is argued that the plaintiffs have filed this suit
without any basis and cause of action. It is also submitted by Ld. counsel
for the defendants that plaintiffs have concealed the material facts and
therefore, the suit is liable to be dismissed. The Ld. Counsel for the
defendants prayed to dismiss the suit with cost.
11. I have given my thoughtful consideration to the submissions made
on behalf of the parties. My findings issuewise are as under :
Issue No. I & II
(i) Whether the plaintiffs are entitled for decree for recovery
of Rs. 2,50,000/ along with interest @ 18 % per annum from the
date of filing of this suit till the realization ? (OPP)
(ii) Whether the plaintiffs are entitled for the decree of Rs.
5,00,000/ as prayed for towards damages for malicious
prosecution? ( OPP)
12. The onus to prove these issues was upon the plaintiff. It is well
settled that a suit has to be tried on the basis of the pleadings of the
contesting parties which is filed in the suit in the form of plaint and written
statement and the nucleus of the case of the plaintiff and the contesting case
of the defendant in the form of issues emerges out of that. Being a civil suit,
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Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported
in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to
observe as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were
duly executed by the deceased Sh. Sohan Singh. The Power
of Attorney is after all a registered Power of Attorney, and
more importantly, the original title documents of the
subject property are in the possession of the respondent
No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as CS No. 334/14 page 8 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
13. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, CS No. 334/14 page 9 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
14. The brief and relevant facts for filing of this suit has been mentioned at the outset. In the present case, there is no admission by the defendant. As regards, the contentions of the plaintiffs that WS filed by defendants cannot CS No. 334/14 page 10 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. be considered, no objection was taken by the plaintiffs during the trial of the matter and it appears that this defence is baseless and without any basis. Even otherwise, it is reiterated that the onus to prove this case was upon the plaintiffs for entitlement of the amount as prayed in the suit. As both of these issues are inter connected, they are decided and adjudicated together.
15. In the present case, there is no admission by the defendant. It is reiterated that the onus to prove this case was upon the plaintiffs. The plaintiffs have filed this suit for compensation alleging their malicious prosecution by the defendants. Malicious prosecution is malicious institution against another of unsuccessful criminal proceeding without reasonable and probable cause. The foundation of the action lies in the abuse of process of the court by wrongfully settling the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. In an action for malicious prosecution, plaintiff must prove:
1. That he was prosecuted by the defendant.
2. That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating.
3. That the prosecution was instituted against him without any reasonable or probable cause.
4. That the prosecution was instituted with a CS No. 334/14 page 11 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact.
5. That he has suffered damage to his reputation or to the safety of person, or to the security of his property.
16. The plaintiffs were examined as PW 1 and PW2 respectively. As apparent from the pleadings, the plaintiffs have claimed damages of Rs. 5,00,000/ for malicious prosecution in view of the complaint filed to the police at PS Jyoti Nagar. There is no prosecution of the plaintiffs before any judicial authority or in court of law. Rather the criminal writ petition filed by plaintiff before Hon'ble High Court of Delhi was dismissed. The testimony of the PWs was totally shattered during their crossexamination as the witnesses admittedly did not take any steps for harassment by the police nor made any complaint to the higher authorities regarding such harassment. Moreover, no such complaints have been either produced or proved by plaintiffs as per law. This suit appears to have been filed by the plaintiffs merely on the ground that complaint was made and the police called them to inquire regarding the same. On the basis of the said facts, the defendants cannot be held liable for the malicious prosecution. The defendants was instrumental in setting the criminal machinery in motion after filing the complaint but the action of the defendants by no stretch of CS No. 334/14 page 12 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. imagination can be considered as malicious. Therefore, the PWs failed to discharge the onus and the prove the issues regarding prosecution by the defendant maliciously and the consequent entitlement for compensation. The claim of the plaintiffs for damages of Rs. 5,00,000/ for malicious prosecution is without any basis.
17. As regards, the claim for recovery of Rs. 2,50,000/, the plaintiff No. 1 claims to have given Rs. 2,50,000/ to defendant No. 1 on 24.02.12 after arranging Rs. 2,00,000/ from his mother's account and Rs. 50,000/ from his brother i.e. Plaintiff No. 2. The plaintiff No. 2 is impleaded in the case but there is no reason as to why the mother of the plaintiffs is not impleaded being contributor to the amount allegedly paid to the defendant No. 1 and this question remained unanswered by the plaintiffs. When the mother of the plaintiffs was not impleaded, there was no reason for plaintiff No. 1 to implaed the plaintiff No. 2 also as plaintiff as transaction was only between the plaintiff No. 1 and defendant No. 1. The suit of the plaintiffs is accordingly bad for nonjoinder of necessary party on this premise. It is further noted that the transaction was between the plaintiff No. 1 and defendant No. 1 as claimed but there is no ground to implead the defendant No. 2 and 3 merely on the basis that the amount was paid in their presence. Further, there is nothing on record that defendant No. 2 and 3 either stood as guarantor for the alleged payment to the defendant No. 1 by plaintiff No. CS No. 334/14 page 13 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
1. Accordingly, the impleadement of defendant No. 2 and 3 are not necessary .
18. It is reiterated that plaintiff No. 1 paid Rs. 2,50,000/. The plaintiff's did not take any steps nor summoned either any witness from bank or mother to prove the contentions that any amount of Rs. 2,00,000/ was withdrawn from the mother's account and paid to defendant No. 1. Infact there is nothing on record except the bald averments of the plaintiffs. The testimony of PW1 and PW2 also appears to be totally shattered during cross examination in view of contradiction in the testimony of both the witnesses. During cross examination, PW1 deposed that he paid the amount on 26.02.12 though in the plaint, it is reiterated the amount was paid on 24.02.12. Again contrary to his claim in the plaint that he arranged Rs. 50,000/ from his own sources and there is no reference regarding arranging of any amount from plaintiff No. 2. During cross examination, PW1 deposed that he took Rs. 40,000/ from his own sources and Rs. 10,000/ from his elder brother. The deposition of PW1 is beyond pleadings and therefore cannot be considered. Admittedly, no receipt was obtained by plaintiff for the said payment which was made in cash and therefore there is nothing on record except the bald averments of the plaintiffs regarding claim of the plaintiff to defendant No. 1. PW 2 on his own claim during cross examination that he advanced money to the CS No. 334/14 page 14 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. defendants in February, 2012 contrary to the claim of plaintiff No. 1. PW2 further failed to disclose as to from where the amount was arranged. The defendants have denied any transaction with the plaintiffs contending that they have never taken any loan from the plaintiffs. No statement of account is proved by the plaintiff as per law nor such statement duly certified under the bankers book of Evidence Act is filed to rely upon the same. The plaintiffs have even not produced the mother from whose account, the amount was withdrawn to paid to the defendant No. 1 in support of contentions to the reasons best known to the plaintiffs. In view of inherent testimony of PWs, the same is not reliable and merely oral averments are not sufficient to prove the claim. I have gone through the judgments relied by counsel for the plaintiffs and the same is not applicable at all in the facts and circumstances in this case.
19. After going through the pleadings and the evidence of the witnesses examined in this case, this court has no hesitation in holding that the plaintiffs categorically failed to prove the payment of Rs. 2,50,000/ to the defendant No. 1 as mentioned in the plaint. There is nothing on record nor anything proved in this respect except the bald averments of the plaintiffs. The testimony of the plaintiffs was further controverted during crossexamination and their testimonies was totally shattered. The plaintiffs themselves admitted that there is no documentary evidence regarding any CS No. 334/14 page 15 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. previous transaction/loan given to the defendants or repayment. The testimony of the plaintiffs was shattered further in view of aforesaid discussions regarding contradictions. No income tax return was placed on record by the plaintiff to corroborate his claim. The police complaints relied by the plaintiffs is also not proved in accordance with law as no steps was taken by the plaintiffs to summon the relevant witness to prove the same. The contention of the plaintiffs regarding loan appears to be not sustainable or believable. The case of the plaintiffs do not inspire confidence. This court is of the considered view that plaintiffs failed to prove the payment of any money of Rs. 2,50,000/ as contended. The plaintiffs are accordingly not entitled for any amount as prayed in the suit.
20. The witness/plaintiff claimed to have paid Rs. 2,50,000/ by way of cash which itself is unbelievable and also contrary to the provisions of law. This act and conduct appears to be suspicious and does not inspire confidence. There is no averments in the plaint nor any evidence to infer the capacity of the plaintiff for payment of such huge amount in cash nor there is anything as from where such large amount was arranged by the plaintiff in cash. The plaintiff failed to show the source of arranging such large money in cash. Moreover, even the alleged transaction of Rs. 2,50,000/ in cash made by the plaintiff is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any CS No. 334/14 page 16 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/.These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. The plaintiff has not produced any corroborative evidence to show or prove that such amount was arranged or paid, whether such payment was reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land. Further, merely oral averments is not sufficient to prove the case of the plaintiffs for entitlement of the amount particularly when the transaction appears to be barred by the provisions of law. There is nothing on record except the bald averments of the plaintiff. This court does not finds itself in consonance with the arguments of Ld. Counsel for plaintiffs regarding non consideration of Written statement. Even otherwise, even if Written statement filed by defendants is not considered, it was for the plaintiffs to prove the case and CS No. 334/14 page 17 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. discharge the onus. In view of the aforesaid discussions, plaintiffs failed to discharge the onus and prove the issue.
21. Plaintiff has not produced any income tax return to show that any payment was made and same was reflected in the return at the relevant time. Had the amount been actually given by plaintiff to defendant and same would have been shown by plaintiff in his income tax return at the relevant time and said fact would have been proved on record by examining the concerned official from Income tax department.
22. I have gone through the judgment reported AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same.
23. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the applicant was entirely a cash amount and that the CS No. 334/14 page 18 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
24. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs CS No. 334/14 page 19 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33). The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
25. In view of the aforementioned discussions and examining the case on the basis of preponderance of probabilities, this court is of the considered opinion that the plaintiffs have failed to discharge the onus and prove the issue No. I & II. The plaintiffs categorically failed to prove any payment of Rs. 2,50,000/ as contended in the plaint along with entitlement of relief/amount as prayed in the suit. Plaintiffs are accordingly not entitled for any relief as prayed in the suit. Issue No. I & II are decided against the plaintiff and in favour of defendants.
Relief
CS No. 334/14 page 20 of 21
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Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. In view of the above said discussions and findings, this court is of the considered opinion that plaintiffs are not entitled for the relief as prayed in the suit. The suit of the plaintiffs is therefore dismissed with cost. The decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 02nd day of July, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 334/14 page 21 of 21 Pintu @ Hitender & Ors V/s Bobby @ Bhupesh & Ors.