Delhi High Court
Dhani Ram And Anr. vs Delhi Development Authority on 6 December, 1996
Equivalent citations: 65(1997)DLT868, (1997)115PLR44
JUDGMENT M.K. Sharma, J.
(1) By this order I propose to dispose of the application (I.A.No. 11687/1996) filed by the defendant No. 1 to 7 under Order 14 Rule 5 Cpc praying for amendment of the issues framed in the suit.
(2) The plaintiff instituted a suit for recovery of Rs. 8 lacs alongwith interest from the defendants No. 1 to 7 and also for restoration of the buildings of the plaintiff demolished by the defendants. It is pleaded by the plaintiff that the building of which the plaintiffs were in possession, did not belong to Delhi Development Authority and was never acquired by them not was it in a development area. The staff of the Delhi Development Authority illegally entered and trespassed upon the said land and demolished and damaged the buildings and structures belonging to the plaintiffs upon the said land without any notice. It is further pleaded that although damage and loss caused to the plaintiffs by illegal and unauthorised act by the staff and men of Dda including defendants No. 3 to 7 can not be compensated in terms of money, since besides loss caused by demolition and damage caused to the buildings, the plaintiffs are suffering a recurring loss of income which they would have earned by way of rent and profits of the said building, and accordingly, the plaintiffs claim a sum of Rs. 8 lacs on account of such loss being caused to them by illegal acts of the staff of Delhi Development Authority.
(3) The defendants No. 1 to 7 contested the aforesaid suit by filing the written statement denying, inter alia, the allegation that the defendants removed/ demolished the structure illegally, unauthorisedly and without jurisdiction.
(4) On the basis of the pleadings of the parties this Court vide order dated 20.1.1992 framed the following issues : (1)Whether the building of the plaintiff was legally demolished by the defendant ? (2) If issue No. 1 is not proved, to what amount of damages, if any, are the plaintiffs entitled ? (3) Relief.
(5) The present application has been filed by the defendant Nos. 1 to 7 contending, inter alia that from the pleadings of the parties it is clear that the plaintiffs have claimed that the buildings belonging to the plaintiff have been illegally demolished, which factum has been disputed by the defendants and therefore, it is obligatory on the part of the plaintiff to prove that their buildings were illegally demolished in order to be entitled to a decree of damages. It is submitted on behalf of the defendants No. 1 to 7 that onus of proof should have been placed on the plaintiffs to the effect as to whether the buildings belonging to him have been illegally demolished by the defendants.
(6) Mr. Jayant Bhushan, learned Counsel appearing for the defendants stated that there is always a presumption that the official acts are regularly performed and it is obligatory on the part of the plaintiffs to prove that their buildings were illegally demolished. According to him, therefore, the onus of proof should have been placed on the plaintiffs whereas in the present suit the burden of proof of the issues framed by the Court has been placed incorrectly on the defendants.
(7) Mr. Ramesh Chandra, learned Counsel appearing for the plaintiffs submitted that demolition of the buildings by the defendants was illegal and void inasmuch as the said land and/or the building was never acquired by the defendants. He further submitted that the report of the local Commissioner proves and establishes that the demolition was carried out by the defendants illegally and unauthorisedly. He submitted that not only the pleadings of the parties but also the materials on record including piece of evidence like report of a local Commissioner may be considered at the time of framing of issues. He further submitted that the issues were framed in the year 1992 and the case is already fixed for evidence and in fact witnesses were present on 20.11.1996 to be examined and therefore, there being delay in filing the present application the same is not maintainable and is liable to be dismissed. He also submitted that an appeal could have been filed by the defendants as against the aforesaid order passed by this Court framing the issues and such an appeal having not been filed the present application is liable to be dismissed.
(8) One of the objections raised by the Counsel appearing for the plaintiffs in respect of the present application was that the issues in the present suit were framed on 20.1.1992 and the application has been filed after a delay of about 4 years when the suit was fixed for recording evidence of the witnesses. According to the Counsel 3 witnesses were present in Court for adducing evidence on 20.11.1996 when the arguments on the present application were heard. The further objection of the learned Counsel in respect of the maintainability of the application is that if the defendants were aggrieved by the aforesaid order framing the issues an appeal could have been filed as against the said order which has not been done and therefore, the present application is not maintainable.
(9) The specific case pleaded by the plaintiffs in their plaint is that an area measuring 3 Bighas and 8 Biswas comprised in Khasra No. 156 at Village Naharpur being built up area was not acquired by the Government and continued to remain the property of the plaintiffs and their co-sharers. It has been further pleaded that the aforesaid land situated at plot No. 156 at Village Naharpur was left out of acquisition and the said land did not belong to Delhi Development Authority and was never acquired and was not a development area. The further case of the plaintiff is that the said land having not been acquired the staff of Delhi Development Authority had no jurisdiction and authority to enter into the said land and therefore, the demolition carried out by the defendants No. 1 to 7 was illegal and without jurisdiction and even their entry to the said land was illegal and amounted to trespass. The aforesaid allegations made in the plaint have been denied by Delhi Development Authority in their written statement contending, inter alia, that the demolition is neither illegal nor unauthorised. Having regard to the pleadings of the parties, it is for the plaintiffs to prove the case that they have pleaded in their plaint. In this connection reference may be made to the provisions of Sections 101 and 102 of Evidence Act the said provisions are extracted below : "101.Burden of proof,-Who ever desires any Court to give judgment as to any legal right or liability dependent 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. 102. On whom burden of proof lies.-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."
(10) In terms of the aforesaid provisions it is the obligation of the plaintiff to prove the case that they have pleaded in their plaint. I may also appropriately refer to the following extract from the Phipson's Manual of Evidence : "The general rule is that he who asserts must prove, whether the allegation be an affirmative or a negative one and not he who denies. It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons". "The effect of this general rule is that the obligation of satisfying the Court on an issue rests upon the party (plaintiff, prosecutor or defendant) who in substance, asserts the affirmative of the issue; that is to say, where a given allegation whether affirmative or negative, forms an essential factor of a party's case, the proof of such an allegation rests on him."
(11) The following passage from the judgment of Denning L. J. in Dunn v. Dunn is quoted by the commentator to show the interaction of the two burdens : "In this case the legal burden throughout was on the petitioner to prove that his wife deserted him, without cause. In order to discharge that burden the petitioner relied on the fact that he asked her to join him and she refused. That is a fact from which the Court might have inferred that she had deserted him without cause, but it was not bound to do so. Once he proved the fact of refusal she might seek to rebut the inference of desertion by proving that she had just cause for her refusal".
(12) Thus it is crystal clear that the initial burden of proving a prima facie case in his favour is cast on the plaintiff and so when he gives such evidence as would support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff.
(13) This issue could also be looked into from another angle. Under section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) to Section 114 is relevant to the facts and circumstances of the present case, according to which all the official acts are presumed to have been regularly performed.
(14) In the present case, as delineated above the specific case of the plaintiffs is that the action of the defendants in entering into the land and in demolishing the building standing on the said land being plot No. 156 at Village Naharpur, was without any authority of law and illegal. Therefore, it is for the plaintiffs to prove the case that they have pleaded namely-that the act of alleged wrongful entry and trespass into the land and thereafter demolishing the building belonging to the plaintiff was illegal and without any authority. However, when the issues as framed by this Court are read it is costal clear that onus in respect of the aforesaid issues has been placed on the defendants.
(15) I have given my considered thought to the aforesaid submissions made by the learned Counsel for the parties. Order 14 Rule 5 empowers the Court to amend the issues or frame additional issues at any time before passing a decree in such terms as it thinks fit. Since such a power is vested in the Court, it was open to the defendants to approach this Court under the aforesaid provisions seeking for exercising the said powers. The said provision further provides that the Court may, at any time, before passing the decree amend the issues. Therefore, the objection relating to delay in filing the application, in my opinion, is misconceived. The witnesses in the present suit are yet to be examined and, therefore, the plaintiff would not, in my opinion, in any manner be prejudiced if the issues framed are amended at this stage. In the light of the aforesaid decision I am satisfied that the issues framed in the present suit require amendment, which I propose to do now.
(16) On the pleadings of the parties I re-frame the issues as follows : (A)Whether the buildings of the plaintiff were illegally demolished by the defendant? (OPP) (b) If issue No. 1 is proved, whether the plaintiffs are entitled to any damage and if so to what amount of damages? (OPP) (e) Relief.
(17) The present application, therefore, stands disposed of with the aforesaid directions and observations.
List this matter on 11th and 12th of December, 1997 for recording evidence of the witnesses to be produced by the partics. For scrutiny, place this matter before the Joint Registrar on 20.2.1997.