JUDGMENT
Sunil Kumar Garg, J.
1. This is a defendant No. 1 appellant’s first appeal against the judgment and decree dated 28.8.1981 passed by the learned Additional District Judge, Sri Ganganagar by which he decreed the suit of the plaintiff respondent in the manner that notice dated 1.5.1975 which was issued by the appellant-defendant No. 1 against the plaintiff respondent for recovery of Rs. 10,350/- was held null and void against the plaintiff respondent,
2. It arises in the following circumstances:
The plaintiff respondent filed a suit against the appellant-defendant No. 1 and one more other in the Court of District Judge, Sri Gangangar on 28.7.1975 stating that plaintiff-respondent and one more defendant No. 2 used to conduct business in the name of M/s Meghraj Bhawanidas at Karanpur for the sale of Lanced Poppy Heads. They have got a license for the year 1964-65 from the Excise Department. The District Excise Officer, Merrut, UP issued a permit No. 146 dated 22.12.1964 in favour of the firm Ramanand, wholesale dealer in Lanced Poppy Heads at Merrut, for obtaining 150 quintal Lanced Poppy Heads. After receipt of the permit by the plaintiff-respondent, the plaintiff respondent, after taking permission from the Excise Department at Ganganagar, sent 150 quintal Lanced Poppy Heads to the firm Ramanand, Wholesale Dealer at Merrut. The said Lanced Poppy Heads were sent by the plaintiff respondent on 23.12.1964 through two trucks and the said goods were received by the firm Ramanand at Merrut. About the receipt of the said goods, Excise Officer, Ganganagar enquired from the Excise Officer, Merrut and upon this, the Excise Officer, Merrut through letter No. 1368 dated 20.4.1965 informed the Excise Officer, Ganganagar that 150 quintal Lanced Poppy Heads have been received by the firm Ramanand at Merrut. But, the appellant-defendant No. 1 issued a notice dated 1.5.1975 to the plaintiff respondent and claimed excise duty to the tune of Rs. 10,350/- on the ground that the said goods have not been received by the firm Ramanand at Merrut. The said notice dated 1.5.1975 was challenged by the plaintiff respondent in this suit and it was prayed that the said notice, being illegal and invalid, be declared as null and void, as the goods have been received by the firm Ramanand at Merrut.
The suit of the plaintiff respondent was contested by the appellant defendant No. l by filing a separate written statement on 13.2.1976 and it was alleged by the defendant appellant that the goods i.e. 150 quintal Lanced Poppy Heads have not been received by the firm Ramanand at Merrut, but on the contrary, the said goods remained in Gangangar, therefore, the notice which was issued by the appellant-defendant No. 1 was valid and the plaintiff-respondent was liable to pay excise duly. Hence, the suit of the plaintiff-respondent be dismissed.
On the pleadings of the parties, the following issues were framed by the learned lower court:
1- D;k 150 fDoUVy MksMk iksLr QeZ jkekuUn] esjB igqap x;k Fkk A blfy, izfroknh la[;k 1]1035 :i;s ,DlkbZt M~;wVh ikus ds vf/kdkjh ugh gS\ ch-vks-ih-
2- D;k uksfVl /kkjk 80] O;ogkj izfdz;k lafgrk oS| gS\
3- D;k nkok fe;kn ds ckgj gS\
4- D;k nkok pyus ds ;ksX; ugh gS\
5- i{kdkjx.k fdl vuqrks”k ds ikus ds vf/kdkjh gSA
Note:
1. That issue No. 1 which was originally framed by the learned lower court was re-drafted by the order dated 12.1.1981 and burden of proving the issue No. 1 was specifically placed on the plaintiff respondent by the learned lower court.
2. That in the lower court both the parties did not lead any evidence and the learned lower court decided the case on the basis of the material available on record.
It may be stated here that during the hearing of the suit in the lower court, the plaintiff respondent filed an application on 20.1.1979 before the learned lower court and sought answers from the appellant-defendant No. 1 in respect of some interrogatories. The defendant No. 1 appellant replied to the said interrogatories by separate reply which is dated 7.8.1979 and the material reply is in para 2, which runs as under:
2.That the verification of the Superintendent Excise, Merrut was received and intimation of that was given to the Circle Inspector Srikaranpur but the verification was based only on the statement of one Sh. Chuni Lal for Ramanand Babuji and no physical verification was done by the Authorities of Merrut. So the Circle Inspector was also asked for enquiry for the correctness of the verification. After that clarification was sought from the Superintendent Excise Merrut who informed that the firm had not produced any record and accounts and so the facts were not verified.
Since there was no evidence on record and no documents were got exhibited before the learned lower court issue No. 1 was decided by the learned lower Court in favour of the plaintiff respondent holding:
(1) That from the said reply to the interrogatories, which has been reproduced above, it is established that the goods in question i.e. 150 quintal Lanced Poppy Heads were received at Merrut and information to that effect was received by the Excise Officer, Ganganagar.
(2) That the District Excise Officer, Ganganagar enquired from the Excise Officer, Merrut about the receipt of the goods in question and upon this, through letter No. 1368 dated 20.4.1965, it was confirmed by the Excise Officer, Merrut that goods in question have been received at Merrut and since this allegation of the plaintiff respondent has not been specifically denied by the defendant No. 1 appellant in his written statement, learned lower court took the help from these pleadings and decided the issue No. 1 in favour of the plaintiff-respondent and decreed the suit of the plaintiff respondent vide judgment and decree dated 28.8.1981.
Aggrieved from the said judgment and decree dated 28.8.1981 passed by the learned Addl. District Judge, Sri Ganganagar, this first appeal has been preferred by the appellant-defendant No. 1.
3. In this appeal, the learned Counsel for the appellant- defendant No. 1 has raised the following contentions:
(1) That the learned lower court has wrongly placed reliance on the answers given by the defendant No. 7- appellant to the interrogatories put by the plaintiff -respondent. The case of the defendant No. 1 appellant in this respect is two fold;
(i) that from the reply to the interrogatories, no case as held by the learned lower court in favour of the plaintiff respondent is made out; and
(ii) that the reply to the interrogatories is no evidence in the eye of law and, therefore, the learned lower court has wrongly relied on the reply to the interrogatories.
(2) That the approach of the learned lower court in deciding the issue No. 1 is wholly wrong one and the learned lower court has decided issue No. 1 as if the burden lies on the defendant No. 1 appellant and not on the plaintiff-respondent, therefore, the findings of the learned lower court on issue No. 1 suffer from the material irregularity and illegality and liable to be set aside.
4. On the other hand, the learned Counsel for the plaintiff respondent supported the impugned judgment and decree of the learned lower court.
5. I have heard the learned Counsel for the parties and gone through the record of the case.
6. To appreciate the contentions made by the learned Counsel for the appellant-defendant No. 1 in this appeal, it would be worthwhile to reproduce Rule 22 of Order 11 CPC:
R. 12-Using answers to interrogatories at trial-Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer:
Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last mentioned answers ought not to be used without them, it may direct them to be put in.
7. In Gosto Behary Pal v. Johur Lall Pal (1879) I.L.R. 4 Cal. 836 (837) it was held that answers to interrogatories are only affidavits and are not by themselves evidence.
8. In Waghji Thackersey and Ors. v. Khatao Rowji and Anr. (1886) I.L.R. 10 Bombay 167 (171), it was held that the party wishing to use the answers to interrogatories must put them in evidence in the ordinary way.
9. Keeping in mind the above rulings and taking into consideration all the facts and circumstances of the present case, I am of the opinion that the approach of the learned lower court is erroneous one and the learned lower court has wrongly placed reliance on the answers to the interrogatories given by the appellant-defendant No. 1 as they are not by themselves evidence and they have not been put in evidence. Apart from them, the answer to the interrogatories, which have been quoted above, does not contain any admission which benefits the case of the plaintiff respondent. The defendant No. 1 appellant has given answers to the interrogatories in a very clear manner stating that the verification was based only on the statement of one Chuni Lal for Ramanand Babuji and no physical verification was done by the Authorities at Merrut, So, the facts were not verified. From this answer, it becomes clear that there is no admission of the fact that the goods in question were received at Merrut. Thus, the learned lower court has committed material illegality and irregularity in placing reliance on the answers given by the defendant No. l- appellant to the interrogatories put by the plaintiff-respondent, as they are not by themselves evidence and they have not been put in evidence.
10. The learned lower court has further decided issue No. l in favour of the plaintiff respondent by holding that since reply to para 5 of the plaint was evasive and there was no specific denial by the defendant No. l appellant, hence, the case of the plaintiff respondent was accepted. In my opinion, this approach of the learned lower court is wrong because burden of proving issue No. l was on the plaintiff respondent and the learned lower court has specifically placed the burden of proving issue No. l on the plaintiff respondent vide order dated 12.1.1981 and plaintiff respondent has failed to discharge his burden in proving issue No. l.
11. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. The expression ‘burden of proof has two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour. It also means that on a contested issue one of the two contending parties has to introduce evidence. In the matter of proof, in a civil case, a defendant cannot take up the same stand as an accused in a criminal case. In civil cases, unlike criminal ones, it cannot be said that the benefit of reasonable doubt must necessarily go to the defendant. The burden of proof lies upon the party either plaintiff or defendant, who substantially asserts the affirmative of the issue.
12. In the present case, the burden of proving issue No. l was specifically placed on the plaintiff respondent. In my opinion, looking to the facts and circumstances of the case and that there is no evidence adduced by the plaintiff respondent, it cannot be said that the initial burden of proving issue No. l has been discharged by the plaintiff respondent No. l. The party on whom the onus of proof lies must, in order to succeed, establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary’s case. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Therefore, to prove the contents of para 5 of the plaint, the burden was on the plaintiff respondent, which he fails to discharge. Thus, the findings of the learned lower court that since there is evasive reply and there was no specific denial to contents of para 5 of the plaint by the appellant-defendant No. 1, the facts alleged in para 5 of the plaint should be taken as accepted by the defendant No. l appellant, are erroneous.
13. The learned lower court has further placed reliance on a letter No. 1368 dated 20.4.1965, though the same is not in the file and its reference is only found in para 5 of the plaint. Therefore, this approach of the learned lower court is absolutely erroneous and it has wrongly placed reliance on a letter, which has not been produced by the plaintiff respondent, but only its reference has been in para 5 of the plaint.
14. For the reasons stated above, the findings recorded by the learned lower court on issue No. 1 being erroneous, perverse and based on no evidence, cannot be accepted and are liable to be set aside and they are set aside and issue No. l is decided against the plaintiff respondent and in favour of the appellant-defendant No. l.
15. In view of the above, the judgment and decree dated 28.8.1981 passed by learned Additional Distt. Judge, Gangangar are liable to be set aside and the suit of the plaintiff respondent is liable to be dismissed.
In the result, this first appeal filed by the appellant-defendant No. 1 is allowed and the judgment and decree dated 28.8.1981 passed by the learned Additional District Judge, Ganganagar are set aside and the suit of the plaintiff respondent is dismissed. No order as to costs.