proof—On whom Lies
Question of onus is important only in a case
when a Court after considering the matter on the basis of the entire material,
finds that the same is evenly balanced in between both the parties and a
definite conclusion cannot be arrived at In such a case onus will be of
paramount importance in determining the suit and if after considering the
entire evidence in a case the Court comes to a definite conclusion, then in
such a case the question of onus loses its importance and the same need not be
Sarkar Vs. Jasimuddin Sarkar, p972)24 DLR 243.
When evidence of both sides arc fully heard
and digested, question of onus does not arise.
Chowdhury Vs. Golam Solaiman Kazi (1974) 26 DLR 70.
Onus of proof — question of proof loses its
relevancy when all the relevant evidence is on record— This question is
relevant when evidence on record is evenly balanced.
Khatoon Vs’. Mvi. Abdul Khaleq, (1973) 25 DLR (SC) 104
burden of proof—when arises:
Question of onus or burden of proof as a
determining factor cannot arise in cases where proof has been concluded and
found on a consideration of the evidence.
Faraji Vs. Panchanan Poddar,(1969) 21 DLR 78.
proof — burden of proof as to
Section 101 of the Evidence Act lays down
that 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 and section 103 of the Act provides that the burden of proof
as to any particular fact lies on the 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 the particular person.
vs. Safar Miah (1978) 30 DLR (SC) 41.
prove loss—burden after this I shifts to the insurer.
Onus of proof is upon the assured, to prove
that there was loss, and that the loss was proximately caused by a peril
insured. He need merely prove that thq cause falls within the perils insured
against. Once the assured has produced a prima facie evidence, the burden
shifts to the insurers, if they wish to show, that it was in fact a cause
either not covered or excepted by the policy which proximately caused the loss.
Insurance Vs. Rahman Trading (1976) 28 DLR(SC) 109.
Insurance and Marine Insurance.
This country is governed by the principles of
English Marine Insurance Act— Onus of proof in insurance cases.
Insurance Co. Ltd. vs. Rahmanja Trading Co. Chittagong (1976) 28 DLR (SC) 109.
Initial onus of proving that the cargo
carried under the bill of lading was delivered at the port of destination in
damaged condition, is on the consignee (owner of the goods) The onus thereafter
shifts on to the carrier first to prove that he took all reasonable care while
the cargo was in his custody and then to prove that the cargo was damaged under
circumstances beyond his control, which exonerates him from the liability of
such damage under the provisions of the Act.
Steamship CG. Ltd. Vs. Province of East Pakistan, (1970) 22 DLR 596.
Onus or burden of proof as a determining
factor cannot arise in case where proof has been concluded and found on a
consideration of die evidence.
Faraji Vs Panchanan Poddar, (1969) 21 DLR 78.
lady—document executed by an il1iterate pardanashin lady.
Pardanashin lady—Deed executed by an
Burden of the person relying on the document
to prove that it was duly understood by the lady.
It is an established principle that in case
of a document executed by an illiterate pardanashin lady the onus is on the
party who relied on such a deed to satisfy the Court that it has been read over
and explained to her, that it was understood by her and that she had
independent and disinterested advice in the matter.
Mere execution, though unaccompanied by
duress, protest or obvious signs of misunderstanding or want of comprehension,
is in itself no real proof of a true understanding mind in the executants.
Evidence m establishes such comprehension is most obviously found in proof that
the deed was read over to the settler and, where necessary explained. The
extent and character of the explanations required must depend on die
circumstances. Length, intricacy, the number and complexity of the
dispositions, of the unfamiliarity of the subject—matter are all reasons for
requiring an increased amount and efficiency of explanation. Fraud, duress and
actual undue influence are separate matter.
Bibi Vs. Md. Naimuddin Mundal (1966) 18 DLR 37.
proof”—When evidence on both sides are fully read and digested.
It is well—settled that when the evidence on
both ides bas been fully read and digested before reaching d conclusion, the
question of error in placing the initial onus on one side or the other is not
of real importance.
Khan vs. The Election Tribunal (1963) 15 DLR (SC) 389.
Plaintiff must prove his case of hwing a
Chandra Vs Lasman Dasi (1987) 39 DLR (AD) 73.
The onus was on the plaintiff to prove that
his father Nagar was the son of Gout Majhi, but no paper was produced by him to
substantiate his claim that his father Nagar was the son of Gour. Ibid
Plaintiff raised no claim in law (in a suit
for partition) nor he had any possession therein— His partition suit must fail.
Onus of proof—Affirmative assertion in the
plaint—Plaintiff to prove his case.
The law is that the person who pleads in the
affirmative of the issues is to prove the same.
Chandra Mondol Vs. Lashman Dasi (1982) 34 DLR 145.
Fraud, collusion, undue influence, where
alleged—the onus .is on the party who alleges it as such.
There is a presumption of good faith in human
transaction as there is a presumption of innocence in criminal matters.
Chandra Das Vs. Sirajul Hoque Patwari. (1982) 34 DLR 225.
proof—When not relevant.
When both sides adduce evidence the question
of onus es its impo mourtls, weigh the evidence on record and come to a
decision on the basis of preponderance of evidence.
Howlader & ors. Vs. Nabab Au Mollah & ors (1982) 34 DLR 274.
Onus— Question not of importance where lower
Courts have come to a positive finding.
When the Senior Sub-Judge and the Additional
District Judge had come to a positive finding on an issue, the question whether
onus was placed on the plaintiff or the defendant lost its importance.
DITTA Vs. Malik ALLAH WASAYA, PLD 1956 Lahore 521.