EVIDENCE

Distinction between “burden of proof” and “onus of proof”.

It is well established that when a suit is filed, the burden of proof lies upon the plaintiff who has sought relief from the Court and failure to prove its case would disentitle him from getting any relief. The onus shifts from stage to stage. The distinction between the “burden of proof” and ‘onus’ has been discussed by the Apex Court in para 19 of its judgment in Anil Rishi Case[Anil Rishi Vs. Gurbaksh Singh, AIR 2006 SC 1971]. The said paragraph reads as under:

“There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof.

In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto…..

The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways :

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;

(ii) to make that of establishing a proposition as against all counter-evidence; and

(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”

In R.V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another (2004) 6 JT (SC) 442 the Court said in para 29 as under:

“In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”


Connected Laws Evidence Act, 1872 – Sections 101 to 104

Indian Evidence Act:

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, 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.

  1. 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.
  2. Burden of Proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on a particular person.

Civil Procedure Code

Order XVII Rule 1 CPC: Right to begin.- The Plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

Test of Probability

There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.

Order 13, Rule 4 CPC provides for every documents admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence.

The objections as to admissibility of documents in evidence may be classified into two classes: ( i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and ( ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the later case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular.

Whether it is a Civil or a Criminal case, the anvil for 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 evaluation of the result drawn by the applicability of the rule, which makes the difference. (R.V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple {2003 (8) SCC 752}, Addagada Raghavamma v. Addagada Chenchamma {AIR 1964 SC 136} & Dayamathi Bai (Smt) v. K.M. Shaffi {2004 (7) SCC.107}).

Further, the Apex Court in Anil Rishi (supra) has held as under:-

“A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.” [ HIMACHAL PRADESH HIGH COURT in PUNJAB NATIONAL BANK  Vs. KANTA DEVI -(2009) LatestHLJ(HP) 1321]


Examples : 

  1. Proceeding for restitution of conjugal rights
  2. When the plaintiff seeks a decree of non-infringement, the question of burden of proof comes into play. The moot question in such a case is as to who would fail in case no evidence is let in. The plaintiff has taken up the task of proving their contention that their TVS 125 CC Flame does not infringe the patent obtained by the defendant. Plaintiff has no case that the defendant was guilty of infringement of their patent. The right to begin as provided under Order 18 Rule 1 CPC has to be considered in the light of Section 101 and 103 of Patent Act. The suit filed by the defendant in C.S. No. 1111/2007 was in the nature of a counter claim. In fact, even according to the plaintiff, in case the defendant institutes a suit later, it would only be a suit with a counter claim. The plaintiff was consistent in their case that their product has nothing to do with the patent obtained by the defendant. This only made them to incorporate the term “for declaration” in terms of Section 105 of the Patents Act. By directing the defendant to begin first, the learned Single Judge has virtually directed the defendant to prove that the product launched by the plaintiff does infringe their patent No. 195904. [ BAJAJ AUTO LTD. AND STATE OF MAHARASHTRA  Vs. TVS MOTOR COMPANY LTD. (2010) 6 CTC 225 : (2010) 5 LW 454 : (2010) 36 RCR(Civil) 447 by MADRAS HIGH COURT ]

 

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