P L D 1965 (W (PLP)

Kalyan Das v. Brij Keshore A I R 1941 All. 7 rel. Ch. Amjad Khan for Appellant. Dates of hearing : 10th May and 4th June 1965. This is an application for grant of a certificate of fitness for a Letters Patent appeal against the order dismissing the second appeal in limine on the 15th of January 1965. The appeal was dismissed by me as it was concluded by concurrent findings of fact. A question was raised by the counsel with regard to wrong allocation of onus probandi of the only material issue raised in the case. It was contended that the plaintiffs‑respondents bad averred that Gulzar deceased was a Sunni, which fact was denied by the appellants and the onus should have been placed upon the plaintiffs‑respondents as required by section 101 of the Evidence Act. This aspect of the case was fully considered by me while dismissing the appeal when I had observed that "the contention hales into insignificance when we find that the parties to the suit have led the entire evidence and no objection was taken by the defendants in the trial Court as to wrong allocation of onus probandi, nor was this objection 'raised in the lower appellate Court. This objection is being agitated in this Court at the second appellate stage without establishing that the appellants had to produce some further evidence and because of this erroneous allocation of the burden they have been prejudiced in the case."

2. In this petition it has been strenuously contended that in view of the under‑mentioned dictum of their Lordships 'of the Privy Council in P. R. Jogi Reddi v. Chinnabbi Reddi (AIR 1929 P C 13), because the onus had been thrown on the defendants‑appellants instead of placing it upon the respondents‑plaintiffs, the finding of fact was not binding in second appeal. "Their Lordships would further observe that all the Courts below seem to have thrown the onus upon the appellant of proving that the properties he claimed were his own, instead of placing it as it should be upon the plaintiff. It therefore appears to their Lordships that there is no question of fact so found that can be binding upon appellate Court on a second appeal; and that it is necessary for them to consider what is the true position." The rule (I say so with respect) is, no doubt, laid down in very wide terms, but it has to be applied keeping in view the other principle laid down by their Lordships of the Judicial Committee in Robins v. National Trust Company Limited (1927 A C 515) wherein their Lordships observed: "Onus is always on a person who asserts a proposition or a fact which is not self‑evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion, because it is self‑evident that he bad been born. But to assert that he was born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Now, in conducting any enquiry, the determining tribunal, be it judge or jury, will find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or, as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered." The question before the trial Court in the instant case was as to whether Gulzar deceased was a Sunni or a Shia and because the great majority of Muslims of this country being Sunnis, there is a presumption 'that the parties to a suit or proceedings are Sunnis unless it is shown to the contrary. Therefore, the trial Court or the lower appellate Court had in no way wrongly, thrown the onus upon the defendants‑appellants and the objection raised loses its force. Even if it be assumed that the onus probandi had been wrongly placed on the appellants, applying the principles laid down in Robins v. National Trust Company Limited, the petitioners do not have any genuine grievance. In the case before me, the District Judge weighed the evidence pro and con‑and came to a determinate conclusion that the case set up by the plaintiff was true. He has not given any finding that the evidence was evenly balanced or that the onus determined the matter, nor is there the slightest ground for supposing that the findings of the learned District Judge were in any way influenced by his view of the incidence of the wrong burden, nor can it be urged with success that the onus had coloured the mind of the Courts below and disabled them from weighing the evidence evenly. I, therefore, hold that not miscarriage of justice or the violation of any principle of law or procedure having been established, there was no reason for departing from the usual practice of declining to interfere with two concurrent findings on pure questions of fact. Moung Tha Hnyeen v. Moung Pan Nyo (27 I A 166) and Rani Srimati v. Khajendra Narayan Singh (31 I A 127).

3. Coming to the question of grant of certificate of fitness under clause 10 of the Letters Patent Appeal, suffice it to say that keeping in view the observation made in Kalyan Das v. Brij Keshore (A I R 1941 All. 7) the instant case is not covered by the four categories of cases in which leave to appeal should be given: (a) A case in which a question of general importance has arisen and in which it is manifestly in the public interest that a more authoritative decision should be given than is possible at the hands of a Single Judge. Matters of unusual private importance either by reason of the magnitude of the material issues involved or for some other reason, may be included in this category. (b) Cases in which a question arises of very frequent occurrence, for example, where interpretation of a new statute arises which may govern the rights and liabilities of a large number of people, an authoritative decision is considered necessary to serve as a precedent for future cases. (c) Cases in which the existing athorities by which the Court is to be guided are either obscure or conflicting. (d) A case in which the Judge himself, who decides the case, feels a reasonable doubt as to the correctness of his decision and thinks that for that reason it is just to the parties that a further appeal should be allowed. I, therefore, am not persuaded to allow the application and the same is dismissed.

4. As I have disposed of the application on merits I am not called upon to give any decision on the question of twelve days' delay in filing the application. K. B. A. Application dismissed.