M/s. Gian Chand & Brothers and Another vs. Rattan Lal @Rattan Singh, Civil Appeal No. 130 of 2013, (Arising out of S.L.P. (C) No.
13950 of 2009), Decided on January 8th, 2013
The Hon’ble Supreme Court held:
“It is well settled principle of law that a person who asserts a
particular fact is required to affirmatively establish it”. [Para 17]
On the issue pertaining to evasive denial of Defendant in a
suit, the Court held:
“Rules 3, 4 and 5 of Order VIII form an
integral code dealing with the manner in which allegations of fact in the
plaint should be traversed and the legal consequences flowing from its
non-compliance. It is obligatory on the part of the defendant to specifically
deal with each allegation in the plaint and when the defendant denies any such
fact, he must not do so evasively but answer the point of substance. It is
clearly postulated therein that it shall not be sufficient for a defendant to
deny generally the grounds alleged by the plaintiffs but he must be specific
with each allegation of fact.” [Para 22]
“Rule 4 stipulates that a defendant must not
evasively answer the point of substance. It is alleged that if he receives a
certain sum of money, it shall not be sufficient to deny that he received that
particular amount, but he must deny that he received that sum or any part
thereof, or else set out how much he received, and that if an allegation is
made with diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Rule 5 deals with specific denial and clearly lays
down that every allegation of fact in the plaint, if not denied specifically or
by necessary implication, or stated to be not admitted in the pleading of the defendant,
shall be taken to be admitted against him”. [Para 23]
Anil Rishi v. Gurbaksh Singh
(2006) 5 SCC 558, it has been held that the burden of proving the facts rests
on the party who substantially asserts the affirmative issues and not the party
who denies it and the said principle may not be universal in its application
and there may be an exception thereto.
Krishna Mohan Kul v. Pratima
Maity and others (2004) 9 SCC 468, it has been ruled:
“When fraud,
misrepresentation or undue influence is alleged by a party in a suit, normally,
the burden is on him to prove such fraud, undue influence or misrepresentation”
Shashi Kumar Banerjee and others
v. Subodh Kumar Bannerjee since deceased and after him his legal
representatives and others AIR 1964 SC 529, a Constitution Bench of the Court,
while dealing with a mode of proof of a will under the Indian Succession Act,
observed that where the caveator alleges undue influence, fraud and coercion,
the onus is on him to prove the same.
A. Raghavamma and another v. A.
Chenchamma and another AIR 1964 SC 136, while making a distinction between
burden of proof and onus of proof, a three-Judge Bench opined:
“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.”
Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 wherein, while dealing with
the pleadings of election case, this Court has held:
“73. In our
opinion, the approach of the High Court was not correct. It failed to apply the
legal principles as contained in Order 8 Rule 3 and 5 of the Code of Civil
Procedure. The High Court had also not analysed the evidence adduced on behalf
of the appellant in this behalf in detail but merely rejected the same
summarily stating that vague statements had been made by some witnesses. Once
it is held that the statements made in paragraph 18 of the election petition
have not been specifically denied or disputed in the written statement, the
allegations made therein would be deemed to have been admitted, and, thus, no
evidence contrary thereto or inconsistent therewith could have been permitted
to be laid.”
Commissioner of Income Tax, Delhi
v. Woodward Governor India Private Limited
(2009) 13 SCC 1, it was held that:
“One more
principle needs to be kept in mind. Accounts regularly maintained in the course
of business are to be taken as correct unless there are strong and sufficient
reasons to indicate that they are unreliable.”
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