# Central Coal Fields Ltd v. Janardan Singh & Ors

- **Citation:** (2016) 7 ILRA 496
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-28
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/central-coal-fields-ltd-v-janardan-singh-ors-44110
- **Pages:** 11

## Text

496 INDIAN LAW REPORTS ALLAHABAD SERIES

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

First Appeal No.- 716 Of 2008

Central Coal Fields Ltd ...Appellant
Versus
Janardan Singh & Ors. ...Respondents

Counsel for Appellant:
Madhur Prakash

Counsel for Respondents:
Rajendra Pd. Giri, A.K. Dubey, K.K. Mani, K.L. Pandey, Manoj Kumar, P.K. Giri, Pradeep Giri.

Territorial Jurisdiction - Coal Supply under Sponsorship System - Cause of Action- Evidence
Act, 1872 - Section 101 - Burden of Proof - Elementary Rule - Proof of Payment - Bank
Drafts - Non-disclosure of Particulars - Adverse Inference - Concluded Contract - Proof of
Allotment - Supply of Coal -

Territorial Jurisdiction - Coal Supply under Sponsorship System - Cause of Action - Under the
sponsorship system for supply of coal prevalent in 1984, applications were required to be moved before the
District Supply Officer of the district concerned, who would process and recommend the same to the Director
of Movement, U.P., Lucknow, and upon consideration, a permit would be issued to the coal company. The
plaintiff-respondent moved his application before the District Supply Officer, Ballia, and the said application
was duly processed by the authorities concerned. Held: Since part of the cause of action, namely, the filing
and processing of the application, arose within the territorial limits of District Ballia, the Civil Judge (S.D.),
Ballia, was vested with territorial jurisdiction to entertain the suit. No illegality was committed by the court
below in deciding Issue No. 6 in favour of jurisdiction.

Evidence Act, 1872 - Section 101 - Burden of Proof - Elementary Rule - The burden of proving a
fact invariably lies upon the person who asserts it. Until such burden is discharged by the asserting party, the
opposite party cannot be called upon to prove its case. The court must first examine whether the party
bearing the burden has discharged the same; and only thereafter may it consider the weakness of the
opposing party's case. Ordinarily, the burden to prove an issue rests on the party who substantially asserts
the affirmative. The initial onus is always upon the plaintiff; once he discharges that onus, the onus shifts to
the defendant. Relied upon: Rangmmal v. Kuppuswami, (2011) 12 SCC 220; Anil Rishi v. Gurbaksh Singh,
(2006) 5 SCC 558; State of J. & K. v. Hindustan Forest Company, (2006) 12 SCC 198.

Proof of Payment - Bank Drafts - Non-disclosure of Particulars - Adverse Inference - Where a
plaintiff alleges payment of Rs. 4,10,000/- through two bank drafts but fails to disclose in the plaint, the
Section 80 C.P.C. notice, or his oral evidence, any particulars of the bank drafts - including the name of the
issuing bank, the branch, the denomination of each draft, or any receipt - such failure is fatal to his case. In
the present case, the plaintiff's own cross-examination revealed that he could not remember the name of the
bank, the amount of each draft, or produce any receipt. He also failed to examine the person alleged to have
7 All. Central Coal Fields Ltd Vs Janardan Singh & Ors.
497
got the drafts prepared. Held: In the absence of adequate disclosure of particulars of the alleged bank drafts,
no adverse inference could be drawn against the defendant-appellant for failing to produce negative proof
that the drafts were not encashed. The burden lay squarely on the plaintiff to establish payment, which he
miserably failed to discharge.

Concluded Contract - Proof of Allotment - Supply of Coal - The existence of a concluded contract
for supply of 1620 MT coal between the plaintiff and the defendant-appellant remained unproved, inasmuch
as neither the alleged allotment order nor any documentary evidence of its receipt or acceptance was filed in
evidence by the plaintiff. Two supply orders (Annexures 5 & 6) relied upon before the High Court showed
distinct amounts of Rs. 37,203/- and Rs. 9,303.15/- corresponding to supplies of 150 MT and 50 MT coal
respectively, and did not in any manner corroborate the claim of payment of Rs. 4,10,000/- as a lump sum for
1620 MT. Further, these documents were not filed as evidence either before the trial court or the High Court.
Held: Points (ii) and (iii) decided against the plaintiff.

Result
The impugned judgment and decree passed by the Civil Judge (S.D.), Ballia, in O.S. No. 147 of
2006 was set aside. The plaintiff-respondent's suit was dismissed with costs. Any amount
deposited by the defendant-appellant pursuant to the interim order dated 05.11.2008 was
directed to be returned to the defendant-appellant along with accrued interest within one
month. Appeal allowed.

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)

1. Heard Sri M.A. Qadeer, learned senior Advocate assisted by Sri Shakti Dhar Dubey,
learned counsel for the appellant/ defendant No.6 and Sri C.L. Pandey, learned senior Advocate
assisted by Sri K.K. Mani, learned counsel for the plaintiff respondent No.1.

 Submissions of the parties:

2. Learned counsel for the defendant-appellant submits as under:

(i) No cause of action accrued as per plaint within the jurisdiction of District Court,
Ballia rather as per allegations in the plaint, the cause of action accrued at Ranchi and, therefore,
the suit filed by the plaintiff respondent No.1 at Ballia, was not maintainable due to lack of
territorial jurisdiction.

(ii) The plaintiff respondent No.1 failed to prove that there was any concluded
contract between the plaintiff-respondent No.1 and the defendant appellant. He neither led any
evidence in this regard nor filed in evidence the alleged allotment order of 1620 MT coal.

(iii) The plaintiff respondent No.1 miserably failed to prove and place any
evidence on record that the alleged payment of Rs.4,10,000/-, was made by him to the defendantappellant. Neither complete particulars of the alleged two bank-drafts including the name of the
bank, the issuing branch and denomination of each bank drafts, were disclosed in the plaint nor any
evidence in this regard were filed and as such the court below committed a manifest error of law
498 INDIAN LAW REPORTS ALLAHABAD SERIES

and facts to decree the suit without there being any evidence of payment of Rs.4,10,000/- by the
plaintiff-respondent No.1 to the defendant appellant through alleged bank-drafts.

3. In support of his submissions, learned counsel for the appellant has referred to the
contents of notice dated 03.07.1985 (paper No.54Ga/1) under Section 80 C.P.C., various
paragraphs of the plaint (paper No.88Ka/2), cross-examination of the plaintiff-respondent No.1
dated 15.03.2008 (paper No.88Ka/2/10), letters of the plaintiff-respondent No.1 dated 21.09.1984
(paper No.54ga/11), dated 12.10.1984 (paper No.54Ga/12), dated 26.11.1984 (paper No.54Ga/14)
and dated 15.10.1984 (paper No.54Ga/15), FIR dated 11.06.1987 lodged by the Supply Inspector,
District Ballia showing commission of offence on 02.08.1984 (paper No.72Ga/1), and statements
of DW-1 dated 01.04.2008 and 02.04.2008 (paper No.98A2).

4. Sri C.L. Pandey, learned senior Advocate for the plaintiff respondent No.1 submits that
in 1984, there was a coordinated system of supply of coal by the State Government and the coal
companies. There were two systems of supply namely linkage system and sponsorship system.
Under the sponsorship system, the plaintiff respondent No.1 applied before the District Supply
Officer, Ballia for supply of 2000 MT coal. The application was processed and recommendation
was made by the Director of Movement U.P. Lucknow, who issued permit of 1620 MT coal, a copy
of which was sent to the defendant appellant and pursuant thereto, the plaintiff respondent No.1
deposited a sum of Rs.4,10,000/- for obtaining the supply and as such the cause of action arose
within the territorial jurisdiction of Civil Court, Ballia. Thus, no error was committed by the court
below while deciding issue No.6 by order dated 28.11.2007 on the question of jurisdiction.

5. He further submits that pursuant to the aforesaid permit, the plaintiff-respondent No.1
deposited a sum of Rs.4,10,000/- with the defendant appellant through two bank drafts totalling
Rs.4,10,000/- but the supply was neither made to the plaintiff respondent No.1 nor the defendant
appellant refunded the amount and consequently, the suit was lawfully decreed by the court below.
The onus to prove that the aforesaid two bank drafts were not received, was on the defendant
appellant which they completely failed to prove while the plaintiff respondent No.1 had proved by
evidence that the aforesaid two bank drafts were given to the defendant appellant and the payment
of 1620 MT coal was received by them from the plaintiff respondent No.1. He refers to two supply
orders dated 28.09.1984 and 25.10.1984 for supply of 150 MT and 50 MT coal issued by the
defendant appellant, copies of which have been filed as Annexures-5 & 6 to the affidavit
accompanying the stay application of the defendant appellant. On the basis of these two papers, he
submits that payment of a sum of Rs.4,10,000/- was received by the defendant appellant. He admits
that these two papers were not filed in evidence by the defendant appellant or the plaintiff
respondent No.1 either before the court below or before this court.

6. In support of his submissions on the question of territorial jurisdiction, he relied upon a
Division Bench judgment of this court in the case of Mamta Coal and Coke Pvt. Ltd. and others
Vs. State of U.P. and others, 1993 (1) EFR 208 (para-11) and another Division Bench judgment
in the case of M/s Singh Coal Traders Vs. General Manager (Sales) Northern Coal Fields Ltd.
Singrauli and another, 1991 (2) EFR 324. With respect to burden of proof, he relied upon a
7 All. Central Coal Fields Ltd Vs Janardan Singh & Ors.
499
decision of this court in the case of Dhanesra and two others Vs. Smt. Sabira, 2004 (2) AWC
1686 (LB) and Sobaran Singh and another Vs. Shyam Singh, 2004 (2) AWC 1094 (para-13).

7. Replying the submissions in rejoinder, Sri Qadeer, learned senior Advocate submits that
the plaintiff-respondent No.1 could not even point out before this court that what was the amount of
each bank drafts, by which bank and branch it was issued and when it was delivered to the
defendant appellant. He submitted that there was no evidence filed by the plaintiff respondent No.1
that the aforesaid two alleged bank drafts were received and encashed by the defendant-appellant.
No evidence of issuance of permit of 1620 MT coal, was filed by the plaintiff respondent No.1.
Two supply orders filed as Annexures 5 & 6 to the affidavit accompanying the stay application and
relied by the plaintiff respondent No.1 before this court, do not support the case of the plaintiff
respondent No.1 inasmuch as in both the aforesaid two supply orders, separate receipts of
Rs.37203/- and Rs.9303.15 being cost for supply of specific quantity of coal of 150 MT and 50 MT
respectively, are mentioned. It goes to show that the case set up by the plaintiff-respondent No.1 for
payment of Rs.4,10,000/- through two alleged bank drafts, is wholly baseless and without any
evidence on record. He also admits that these two supply orders were neither filed in evidence
before the court below nor have been filed as additional evidence before this court.

 Facts, Discussion and Findings:-

8. I have carefully considered the submissions of the learned counsel for the parties and
with their consent, following three points are framed to decide the controversy involved in this
appeal:

(i) Whether the court of of Civil Judge (S.D.), Ballia was having territorial
jurisdiction to entertain the O.S. No.147 of 2006, Janardan Singh Vs. State of U.P. and others.

(ii) Whether there was a concluded contract between the defendant-appellant and
the plaintiff-respondent No.1 for supply of 1620 MT coal.

(iii) Whether the plaintiff respondent No.1 has made payment of Rs.4,10,000/-
through alleged two bank drafts to the defendant-appellant and the payment was proved by the
plaintiff-respondent No.1.

9. Point No.(i) Whether the court of of Civil Judge (S.D.), Ballia was having territorial
jurisdiction to entertain the O.S. No.147 of 2006, Janardan Singh Vs. State of U.P. and
others:

So far as question of territorial jurisdiction is concerned, it has not been disputed
by the defendant-appellant that under the sponsorship system of supply of coal, application was
used to be moved before the District Supply Officer of the District concerned who could
recommend and send the application to the Director of Movement U.P., Lucknow and on
consideration of the application, a permit could be issued by the Director of Movement U.P.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

Lucknow to be sent to the Coal Company concerned and thereupon, applicant could obtain supply
of coal. There is no denial of the fact that an application was moved by the plaintiff respondent
No.1 before the District Supply Officer, Ballia and the same was processed by the authorities
concerned. However, the receipt of the alleged payment for supply of coal and issuance of permit
have been denied by the defendant-appellant. Thus, cause of action arose within the territorial
jurisdiction of District Court, Ballia. The court below has considered the question of jurisdiction
while deciding issue No.6. I do not find any illegality in the judgment of the court below on the
question of territorial jurisdiction. Consequently, it is held that the issue No.6 regarding territorial
jurisdiction of Civil Court, Ballia, was lawfully decided by the court below.

10. Point No.(ii) Whether there was a concluded contract between the defendantappellant and the plaintiff-respondent No.1 for supply of 1620 MT coal

 AND

 Point No.(iii) Whether the plaintiff respondent No.1 has made payment of
Rs.4,10,000/- through alleged two bank drafts to the defendant-appellant and the payment
was proved by the plaintiff-respondent No.1:

The points No.(ii) and (iii) framed above, are interlinked and therefore, they are
being decided together.

In the impugned judgment, while deciding issues No.1, 2 & 3, the court below
recorded a finding that a sum of Rs.4,10,000/- was paid by the plaintiff-respondent No.1 to the
defendant-appellant through two bank drafts dated 24.09.1984 and 26.09.1984. To reach to the
aforesaid conclusion, the court below has relied upon the contents of the FIR dated 11.06.1987, the
assessment order passed by the Sales Tax Officer, Ballia (paper No.129Ga), the oral evidence of
P.W.-1, oral evidence of OPW-1, Sri Sunil Kumar Singh and failure of the defendant-appellant to
disprove that the aforesaid two alleged bank drafts were not received by them. While recording the
aforesaid finding, the court below has drawn adverse inference against the defendant-appellant on
the ground that since bank draft numbers were disclosed and as such it was the responsibility of the
defendant-appellant to prove that they have not deposited these bank drafts in their account or these
bank drafts were not submitted by the plaintiff respondent No.1 with them and the same were not
encashed.

11. The plaintiff respondent No.1 issued a notice dated 03.07.1985 (paper No.54Ga/1)
under Section 80 C.P.C. to the defendant-appellant and five others. In paragraph-8 of the notice, it
was merely stated that bank drafts dated 24.09.1984 and 26.09.1984 amounting to Rs.4,10,000/-,
were deposited with the defendant-appellant against supply of 1620 MT coal. In paragraph-8 of the
plaint (paper No.50ka), same averment was made. Neither in the notice under Section 80 C.P.C.
nor in the plaint, the plaintiff-respondent No.1 has disclosed any particulars of the amount of each
bank drafts, the name of the bank and the issuing branch. The plaintiff respondent No.1 gave his
7 All. Central Coal Fields Ltd Vs Janardan Singh & Ors.
501
oral evidence on 19.12.2007 (paper No.88Ga/2). In his cross-examination dated 15.03.2008 (paper
No.88Ga/2), he stated as under:

" िपर् विरह ाक्षी िनािथन व िंह पुत्र श्री बृिनिंिन व िंह ने कहा वक ि्ाफ्ट े पै ा िमा करते मय प्रार्थनापत्र
विया र्ा। वि की प्रवत ली र्ीिं। प्रार्थनापक में बैंक ि्ाफ्ट पर वलखा र्ा। र ीि मेरे पा नहीिं हैं मेरे ार् िो आिमी र्ा उ के पा है।
उनका नाम तारा ििंकर उपाध्याय हैं। तारा ििंकर उपाध्याय मेरी फमथ का कायथ िेखते र्े। तारा ििंकर उपाध्याय मेरी फमथ में कायथ करते
र्े। इ बात का वलखखत प्रमाण नहीिं है। ि्ाफ्ट निं० 3106 वक बैंक े बनिाया र्ा, याि नहीिं है। उ में वकतनी िनरावि अिंवकत र्ी याि
नहीिं है। िू रा ि्ाफ्ट DL 065853/461 विनाक 24.9.84 ता ििंकर उपाध्याय िोनोिं ि्ाफ्ट

बनिाकर लाये र्े। िोनो मैंने ही िेखा र्ा। मैं बैंक गया र्ा। नकि लेकर गया र्ा। मैंने पै ा नकिः ूयथ िेि व िंह,
वनिा ी िनबाि े वलया र्ा। किथ नहीिं वलया र्ा। म्बन्ध अच्छे होने के नाते पै ा मुझे विया र्ा। मैंने ि्ाफ्ट का वििरण विया है।

मैने बैंक े यह मालुम नहीिं वकया र्ा वक ि्ाफ्ट का भुगतान हो गया है। बैंक े कोई प्रमाणपत्र ि्ाफ्ट के म्बन्ध
में नहीिं वलया र्ा। के०ए ०टी० फामथ मैंने िमा नहीिं वकया र्ा। मैने Sale Tax Office े फामथ वलया र्ा। लेवकन ि्ाफ्ट के मय लेकर
नहीिं गया र्ा। ीए टी फामथ कोयला लेने के वलये िमा करना िरूरी होता है। अभी मैने यह कहा र्ा वक िो विन में फामथ िमा कर िेगें
मैने ीए टी फामथ िमा नहीिं वकया है।

मैंने अपना पै ा लेने के वलये कोई प्रार्थनापत्र नहीिं विया है मैने प्ाई आवफ के वलये पै े के म्बन्ध में वलखा
र्ा। मेरा कोई वििाि तारा िकर उपाध्याय े नहीिं है। एफआईआर े पहले मेरी वलखा पढी चल रहीिं र्ी। नोवट मैने एफआईआर के
बाि विलाया या नहीिं, नहीिं मालुम। मेरे खखलाफ एफआईआर ििथ हुई र्ी। एफआईआर इ वलये हुई वक मैने ऊपर अविकाररयोिं के
खखलाफ विकायत की र्ी। वि े कुि अविकारी वनलखम्बत हुए। इ का वलखखत प्रमाण मेरे पा नहीिं है। Sponsharship िारी होने के
बािः विला पूवतथ आविकरी की भूवमका रहती है। मैंने विलापूवतथ अविकारी को 15:10:1984 को ूचना िी। तर्ा Director of
Movement को ूचना विनाक 10.10.1984 को ी ीएल के मैनेिर को ूचना िी। मैंने पै े िमा करने की बात वलखी र्ी। यह
कहना गलत हैं वक मैं Sponsharship को बेचता र्ा। यह कहना भी गलत है वक बैंक ि्ाफ्टोिं का कोई ििूि ना हो। मै ेन्ट््ल कोल
वफल्ड में कोई पै ा न िमा वकया हो।"

12. Thus, in his cross-examination, the plaintiff-respondent No.1 stated that one Sri Tara
Shankar Upadhyay was looking after the work of his firm, he did not remember from which bank
he got prepared the bank drafts, he has no receipt, he did not remember what was the amount
mentioned in the bank drafts, he went to the bank carrying cash for preparation of bank drafts
which amount was taken by him from one Sri Surya Dev Singh of Dhanbad but he did not
remember name of the bank and he had neither inquired from the bank whether the bank drafts
were encashed nor any certificate was obtained from the bank. He further stated that both the bank
drafts were got prepared by Sri Tara Shankar Upadhyay. He also stated that he has not moved any
application for refund of his money and he has no dispute with Sri Tara Shankar Upahyay. In his
letter dated 12.10.1984 (paper No.54Ga/12) addressed to the Director of Movement U.P. Lucknow,
he alleged that the aforesaid Sri Tara Shankar Upahdyay is the proprietor of M/s Chandra Coal
Agency Bada Garaha, Ballia and has submitted forged papers and fraudulently completed
formalities to obtain supply of coal and, therefore, the delivery of coal be stopped. In the aforesaid
paper No.54Ga/12, he made allegations of forgery against Sri Tara Shankar Upadhayay but in his
cross-examination dated 15.03.2008 (paper No.88Ka/2), he stated that he has no dispute with Sri
Tara Shankar Upadhyay who got prepared the aforesaid two bank drafts. Thus own evidence of
plaintiff-respondent No.1 (PW-1) dated 15.03.2008 (paper No.88Ka/2/10) clearly indicates that he
completely failed to give particulars of the two alleged bank drafts. He has not even disclosed the
502 INDIAN LAW REPORTS ALLAHABAD SERIES

name of the bank and the issuing branch from where he allegedly got prepared two bank drafts. He
also did not produce Sri Tara Shankar Upadhayay in evidence. Thus, in the absence of disclosure of
particulars of the alleged two bank drafts and any receipt of the defendant appellant, there was no
occasion for the defendant-appellant who are said to receive thousands of bank drafts every day, to
give negative evidence that the alleged two bank drafts were not encashed by them. In his aforequoted cross-examination, he made conflicting statement. His statement that he himself along with
one Sri Tara Shankar Upadhyay went to the bank carrying money for preparation of two bankdrafts totalling Rs.4,10,000/-, is wholly unbelievable and not supported by any evidence inasmuch
as he could neither file receipts for preparation of bank-drafts nor could disclose the name of the
bank and the branch issuing the alleged bank-drafts nor could disclose the denomination of the
alleged two bank-drafts. He had not even produced in evidence the aforesaid Sri Tara Shankar
Upathyay.

13. The finding of the court below that the defendant-appellant should have obtained a
certificate from the bank regarding non-encashment of the bank drafts, was to put a negative
burden on the defendant-appellant and that too in the circumstances when absolutely no relevant
particulars of the alleged two bank drafts were disclosed by the plaintiff respondent No.1. The
defendant-appellant has clearly denied the receipt of alleged two bank drafts.

14. In his evidence dated 01.04.2008 and 02.04.2008 (paper No.98A/2), Sri Sunil Kumar
Singh (DW-1), clearly stated as under:

"यह वक िािी िा प्रस्तुतः िािः में िािथ 1984 में 1620 वमवट्क टन कोयले के आििंटन का कर्न वकया गया है।
उक्त अिवि में कोयले के मूल्य का कोई बैंक ि्ाफ्ट तर्ा ेन्ट््ल कोल वफल्ड वलवमटेि िस्मगा हाउ िंचीिं के नाम िी गयीिं स्पान्सरिीप
आिथर की 67 प्रवत वलवपया िो िंबिंवित स्थानोिं पर भेिी गयीिं है. उनमें े एक आिेिन पत्र एििं बैंक ि्ाफ्ट के ार् ेन्ट््ल कोला वफल्ड
के िंबिंवित कायाथलय में िमा वकया िाना र्ा। परन्तु िािी िारा कोई भी बैंक ि्ाफ्ट िा आिेिन पत्र ेन्ट््ल कोल वफल्ड वलवमिेि के
वक ी भी कायाथलय में िमा नहीिं वकया गया है।

यह वक िािी िारा विनािंक 24.09.1984 या विनाक 25.09. 1984 या विनािंक 21:09:1984 अर्िा वक ी विन
ि्ाफ्ट निं0 3106 अर्िा ि्ाफ्ट निं० टी० एल० 065853/451 अर्िा कोई भी बैंक ि्ाफ्ट ेन्ट््ल कोल वफल्ड वलवमटेि के िंबिंवित
कायाथलय में नहीिं िमा वकया गया है।"

15. In paragraph-9 of the written statement (paper No.61ka/1), the defendant-appellant
clearly stated that the plaint is vague and no required information is furnished, no details of so
called bank drafts of Rs.4,10,000/- is given and no document showing payment to the defendantappellant, i.e. the receipts have been filed or referred in the plaint itself. In paragraph-11 of the
written statement, it was clearly mentioned that no documents showing details of link, i.e. the basis
of allotment of coal or the demand drafts or details regarding bank and branch etc. have been
furnished in the plaint and no bank statement showing credit/ debit and encashment details are
furnished in the plaint or in evidence. No details regarding the area of CCL/ Colliery/ Project office
where the alleged amount was deposited, has been given in the plaint.
7 All. Central Coal Fields Ltd Vs Janardan Singh & Ors.
503
16. The mechanism of supply of coal has been briefly mentioned in paragraph-12 of the
written statement. In paragraph-15 of the written statement, the contents of paragraphs 7 & 8 of the
plaint, were denied being vague and devoid of information. It was further stated that the plaintiff
claimed having deposited bank drafts of Rs.4,10,000/- on 24.09.1984 and 21.09.1984 but has not
given any details in this regard about those bank drafts, their numbers, date, name of issuing bank
nor has produced the copy of the sale order which ought to have been issued to him or his unit as
the case may be. The contents of paragraphs 15 & 16 of the plaint, were denied in paragraphs 21 &
22 of the written statement being wholly incorrect and baseless.

17. A perusal of the aforementioned pleadings and evidences, leave no manner of doubt
that the plaintiff-respondent No.1 has completely failed to establish that payment of a sum of
Rs.4,10,000/- was made by him to the defendant-appellant through alleged two bank drafts and
there was a concluded contract between him and the defendant appellant for supply of 1620 MT
coal. The plaintiff-respondent No.1 has set up the case and filed the suit on the ground that he had
made payment to the defendant-appellant through two bank drafts totalling to Rs.4,10,000/- and as
such burden was on him to disclose full particulars of alleged two bank-drafts and to prove that
those alleged bank drafts were received by the defendant-appellants against supply of coal and the
same were encashed by them.

18. The court below, as evident from the pleadings briefly noted above; has missed the
basic principle that a suit has to be tried on the basis of the pleadings of 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 defendant in the form of issues emerging out of that.

19. Section 101 of the Indian Evidence Act defines the phrase "burden of proof" as under:

"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."

20. The aforesaid provision clearly provides that the burden of proof of fact, always lies
upon the person who asserts it. 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 able to discharge his burden and until the court arrives at such a conclusion, it
may not proceed on the basis of weakness of the other party. In the present set of facts, the
plaintiff-respondent No.1 has alleged that he made the payment of Rs.4,10,000/- through two bank
drafts to the defendant-appellant but could not prove it. Neither in the notice under Section 80
C.P.C. nor in the plaint nor in his any evidence, the plaintiff-respondent No.1 has disclosed the
particulars of the alleged bank drafts, namely, the name of the issuing bank and branch, amount of
each bank draft and the receipts. He has also not filed any evidence to establish that the alleged two
504 INDIAN LAW REPORTS ALLAHABAD SERIES

bank drafts were given to the defendant-appellant as payment against alleged supply of 1620 MT
coal. He had also not filed any certificate of the issuing bank that the alleged two bank drafts were
encashed by the defendant appellant. Neither there was any pleading in the plaint nor any evidence
was led by the plaintiff respondent No.1 that the alleged two bank drafts were prepared in the name
of the defendant-appellant. Thus, in view of the provisions of Section 101 of the Evidence Act,
1872, the burden was on the plaintiff-respondent No.1 to prove the fact of making payment of
Rs.4,10,000/- to the defendant-appellant through the alleged two bank drafts which he miserably
failed to do.

21. The elementary Rule under Section 101 of the Evidence Act, is inflexible. Ordinarily,
the burden to prove the fact rests on the party who substantially asserts affirmative of the issue and
not on the party who denies it. In terms of Section 102 of the Act, 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 dis-entitle the plaintiff to
the relief. In the case of Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558 (para-19), Hon'ble
Supreme Court held that a distinction exists between a 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.

22. In the case of Rangmmal Vs. Kuppuswami and another, (2011) 12 SCC 220 (para21), Hon'ble Supreme Court held that Section 101 of the Evidence Act has clearly laid down that
the burden of proving a fact always lies upon the person who asserts the fact. 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 burden lies has been able to discharge his burden.
Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.
In paragraph 29 of the judgment, Supreme Court further held that the party who alleged the sale
deed to be not genuine, sham or bogus, had to prove nothing until the party relying upon the
document, establishes its genuineness. In the present set of facts, the plaintiff respondent No.1 has
neither proved the alleged two bank drafts nor its encashment by the defendant appellant and thus
failed to discharge the buraden to prove.

23. Apart from this, the evidences led by the plaintiff respondent No.1 and the defendantappellant clearly shows that the plaintiff respondent No.1 has completely failed to establish that the
alleged two bank drafts in question were got prepared by him and were given by him to the
defendant-appellant towards cost of 1620 MT coal. In the case of Bala Shankar Mama Shankar
Bhattji Vs. Charity Commissoner, Gujrat State, 1995 Suppl. (1) SCC 485 (para-19), Hon'ble
Supreme Court held that burden of proof would mean that a party has to prove an allegation before
he is entitled to a judgment in his favour. Either of the two contending parties has to introduce
evidence on a contested issue. The question of onus is material only when the party on which it is
placed, would eventually lose if he failed to discharge the same. Where, however, parties joined the
7 All. Central Coal Fields Ltd Vs Janardan Singh & Ors.
505
issue and led evidence then such evidence can be weighed in order to determine the issue and in
that situation, the question of burden becomes academic.

24. In Subhra Mukherjee Vs. Bharat Coling Coal Ltd., (2000) 3 SCC 312, Hon'ble
Supreme Court held that the party that makes allegation, must prove it but where the question
before the court was "whether the transaction in question was a bona fide and genuine one" the
party relying upon the transaction has to prove its genuineness first and only thereafter would the
defendant be required to dislodge such proof and prove that the transaction was sham and fictitious.

25. In the case of Deena Vs. Union of India, 1983 (4) SCC 645, Hon'ble Supreme Court
held that the question of burden of proof ceases to have the same importance when the entire
evidence is before the Court, each side having placed before it such material as it considers
necessary to support its case. But then, the fact that parties have produced their respective data
before the Court does not absolve the Court from considering the question whether, on the basis of
the entire material before it, the burden can be said to have been discharged by the party on whom
it lies.

26. The plaintiff-respondent No.1 completely failed to lay any evidence to establish that he
made payment to the defendant-appellant through the alleged two bank drafts. In the case of State
of J. & K. Vs. Hindustan Forest Company, (2006) 12 SCC 198, Hon'ble Supreme Court held
that the onus is on the plaintiff to establish positively its case on the basis of material available and
it cannot rely on the weakness or absence of defence to discharge onus. In the case of Corporation
of City of Bengalore Vs. Zulekha Bi, (2008) 11 SCC 306, it was held that it is for the plaintiff to
prove his title to the property.

27. In the judgment of this court in the case of Sobaran Singh Vs. Shyam Singh (supra)
relied by the learned counsel for the plaintiff-respondent No.1, it was held that the parties cannot be
permitted to travel beyond from pleadings and no evidence can be looked into with respect to
which there is no pleading. This judgment does not support the case of the plaintiff respondent.

28. In the case of Dhanesra Vs. Smt. Sabira (supra), the court was considering the
provisions of Section 11 of the Evidence Act which deals with the situation that when fact not
otherwise relevant becomes relevant.

29. In view of the above discussion, the impugned judgment and decree passed by the court
of Civil Judge (S.D.), Ballia, Court No.9 in O.S. No.147 of 2006, Janardan Singh, Proprietor, Anuj
Coal Agency Vs. State of U.P. and five others, is hereby set aside and the plaintiff's suit is
dismissed with costs.

30. Any amount deposited by the defendant-appellant in terms of the interim order dated
05.11.2008 passed in this first appeal, shall be returned to the defendant-appellant by the court
concerned within a month along with interest accrued on such deposit, if any.
506 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Appeal is allowed as indicated above.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 864 Of 2012

Smt. Rani Devi ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Dhirendra Kumar Srivastava

Counsel for the Opposite Parties:
Learned Government Advocate, Sri M.P. Yadav, Sri Rajesh Kushwaha

HEADNOTE:
Criminal Revision-Protection of Women from Domestic Violence Act, 2005-Sections 13 and
23-Rule 12 of the Protection of Women from Domestic Violence Rules, 2006-Ex-party orderService of notice-Mandatory compliance-Illegality-Setting aside of orders.
An ex-party interim order passed by the Magistrate under Section 23 of the Protection of Women from
Domestic Violence Act, 2005 without recording compliance of mandatory service of notice as required under
Section 13 of the Act read with Rule 12 of the Rules, 2006 is unsustainable in law. Dismissal of appeal
affirming such order, without addressing statutory non-compliance, is also without jurisdiction.

PROCEDURE:
Criminal Revision against:
(i) Order dated 08.09.2011 passed by Judicial Magistrate-I, Allahabad in Complaint Case No. 1796 of 2011
(Smt. Sudha & Ors. v. Prabhat Kumar & Ors.) under Section 23 of the Protection of Women from Domestic
Violence Act, 2005; and
(ii) Appellate order dated 06.03.2012 passed by Additional Sessions Judge, Court No. 5, Allahabad in
Criminal Appeal No. 239 of 2011 dismissing the appeal.

HELD:
The Magistrate failed to record satisfaction regarding service of notice as mandated under Section 13 of the
Act and Rule 12 of the Rules, 2006. The ex-party order was thus passed in violation of mandatory statutory
provisions. The appellate court erred in affirming the said order. Both orders are liable to be set aside.

DECISION:
Revision allowed.
Orders dated 08.09.2011 and 06.03.2012 set aside.
Matter remanded to the trial court to pass a fresh order after hearing the parties.
Revisionist directed to appear before the trial court on 27.07.2016.