Where lies burden of proof ?
Rajesh
(Querist) 18 April 2014
This query is : Resolved
In a suit for specific performance , plaintiff has brought a witness who in his Examination-in-chief submitted one page summary of his statement of accounts maintained with his own commission agency firm. The aforesaid one page summary of accounts was signed by 'witness" himself as a partner of his commission agency firm and was NOT signed by any Chartered Accountant . He didn't corroborated or supplemented his one page summary of accounts with books of accounts of his firm .
(2)The defendant advocate objected to his Exhibit ( one page summary of accounts) and got it MARKED.
(3) After completion of above witness cross examination ,I (being defendant) came to know that Commission agency firm , whose summary in page has been submitted as an Exhibit but got Marked, doesn't have enough financial strength to lend Plaintiff huge amount as friendly loan . Based on this information my advocate filed an application before court to recall the aforesaid witness of Plaintiff along with books of his firm for last 5 years.
(4) Court heard and rejected our plea of recalling witness with books of his firm but stated that at the time of defendants evidence , you may call records of the Firm.
(5) Now , since Defendant evidence is going on , the question of calling Firm's books of accounts is being discussed on the issue Whether I( being defendant) needs to call Plaintiff's witness Firms Books of accounts considering originally Burden of Proof lies on Plaintiff's Witness who submitted a one page summary of his firms account statement.?
To decide on above question , I solicit your advice on the following critical issue
(A) WHETHER the burden of proof has been shifted on Defendant keeping in view Court order passed while rejecting recalling of witness stating therein that Defendant may call books of accounts of Firm while leading his witnesses.? So I should call firm's books of accounts.
OR
(B) WHETHER BOP remains with Plaintiff's Witness despite courts above order issued wherein it was stated that Defendant may call books of accounts of Firm while leading his witnesses .? So I should not call books of accounts of Firm.
I solicit your expert advice issue on above critical to remove the confusion so as to enable me to take appropriate step.
ROHIT SHARMA
(Expert) 18 April 2014
1. Yes, as a defendant you have the onus to prove that what has been alleged by the plaintiff is not true.
2. Yes, the witness who had appeared just for to produce such extract of the accounts is not considered as witnesses u/s 139 of the Indian Evidence Act, 1872 and his cross examination or his recalling is not permissible.
3. As per the court's advise upon entering of the defense the defense counsel can file an I.A u/s 151 r/w Order 11 Rule 14 of Cr.P.C. to make the plaintiff/such witness to produce the set of accounting books of such commission agency firm of which accounts some particular extract of account has been already produce by such witness and sustain the existence of the relevant fact that the plaintiff never could have loaned such a huge amount to the defendant on his own account and neither he was a licensed money lender.
4. If need be talk to this lawyer.
Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M. )
(M) 09824047971.
E-Mail : lawgate1349@gmail.com
Rajesh
(Querist) 18 April 2014
Thanks for your prompt response. But still my main question has not been answered ,as onus of proving his statement of accounts WAS on Plaintiff's witness by producing books of accounts of Firm .
Whether this ONUS continues to lies with Plaintiff's witness OR has been shifted on Defendants with the order of Court passed wherein it was stated that Defendant may call these books of firm while leading his witnesses.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 18 April 2014
Never do such silly mistake of calling the plaintiff books , in this manner you will prove his case and loose all your defense.
Since when you call any witness as your witness or records it becomes your admission.
So what ever he will submit will be binding on you.
Burden of proof is on him but it it finer point neglected by courts since you missed the opportunity in cross.
Study the plaint and if possible go in revision which has restricted opportunities but can draft the revision in such manner that this issue will decide the case.
If fail in this attempt go in writ for recalling witness with some plausible reasons.
Rajendra K Goyal
(Expert) 18 April 2014
Agree with the advise from ADVOCATE DEFENSE,
Rajendra K Goyal
(Expert) 18 April 2014
Agree with the advise from ADVOCATE DEFENSE,
Rajendra K Goyal
(Expert) 18 April 2014
Agree with the advise from ADVOCATE DEFENSE,
Rajesh
(Querist) 18 April 2014
Thanks you Sir Advocate Defense. YOU HAVE SOLVED MY CONFUSION WHICH OCCURRED WITH ISSUANCE OF COURT'S ORDER.
Based on your advice , I will not call books of Firm of Plaintiff's Witness DESPITE order of Court passed wherein it stated that defense may call books of accounts of firm while leading his defense witnesses.
SO YOU ARE OF VIEW THAT THE BURDEN OF PROOF REMAINS WITH PLAINTIFF'S WITNESS ( Who produced summary of his Firm's statement of Accounts)& it never got SHIFTED on Defense based on Court's order .
Sir am I right in understanding your advice.?
ROHIT SHARMA
(Expert) 18 April 2014
1. The core of your inquiry being that whether that deposition of witnesses during a legal proceedings dose not fall within the the legal terminology like - burden proof - which is seen as associated with the legal liability of the complainant in so far to the actual burden restored by by affirmation citing the existence of primary and secondary relevant facts facts supported by corresponding relative evidences that which the complainant has alleged against the defendant s and vicer versa the 'onus' (liability) on the part of the defendant - i.e the responsibilities of producing the before a civil court of law the existence of relevant facts as an opportunity to the deny the issues /charges of the plaintiff against him.
2. The inquiry of your cure subject - in that; talking about the usage of the word 'onus' or 'burden of proof ' are otherwise are irrelevant; in so far as - the evinces deposed by the witnesses can be equated burden of proof or onus and legal phrase are in way associated therefore not used in cases of the deposition of wittiness in general. They depositions witnesses are mostly comparable what it amounts to be 'admissions' made oath eventually under the applicable provisions of the Indian Evidence Act, 187.
3. The witnesses do not have the liabilities like these as burden or onus - and their depositions made by them through affidavits are true to their best knowledge. The defense can rebut such allegations and affirmations of the witnesses not on the grounds of failure any burden of proof or the onus either.
4. The defendant person is under the legal liability as his right of
'onus' = the (burden) of proving the existences of valid relevant facts admitted identically as under the Indian Evidence Act 1972 deny the existence of the evidence of relevant facts exhibited by the plaintiff.
5. Now you ask as to whether the deposition and the presentation of the document by such said witness in context provide for an opportunity to further arguing to consider the production of the evidences of the plaintiff as groundless due to defect/deficiency of the burden to prove capacity and such evidences tendered by th plaintiff be deemed as 'not proven' for setting off the allegations of the plaintiff and its production of evidences.
6, Thus is how you be able to get to give the best evidence of both the primary and the secondary evidences established together.
7. Some school of thinking also goes on to suggest you that you should avoid to go call for further evidences of the books of accounts of the plaintiff, as such demand would be like admitting the existence of such documentary secondary evidences of accounts books and that doing so would make your more vulnerable.
8. This should as said up should put you more wise in distinguishing the legal import of the terms like the 'burden of proof ' and likewise 'onus of proof. in matter of legal proceedings.
9. Can you share as what actual are the facts that are 'in issue 'of your case matter.
10. If need be seek telephonic consultancy.
Adv. Rohit Sharma.
( B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E-Mail : lawgate1349@gmail.com
