N.P.Abdulla Vs T.Abdul Jabbar

The learned counsel for the applicants/plaintiffs submitted that the suit has been filed for recovery of a sum of Rs.2,99,42,500/- with future interest at the rate of 18% per annum from the date of plaint till the date of realization on the principal amount of Rs.1,95,50,000/-. In the written statement filed by the respondent/defendant, he admitted the borrowing from the applicants/plaintiffs and pleads discharge stating that they have paid the said amount. Hence, it is very clear that the respondent/defendant is claiming only discharge and therefore, the burden is only on him to prove that he has paid the said amount. As per the provision of Order XVIII(1), if the claim is admitted by the respondent/defendant and pleads discharge, then the right to begin is only with the respondent/defendant and not by the plaintiffs. Hence, he prays to allow this application.

The learned counsel for the respondent/defendant submitted that the applicants are wholly misunderstood the object of the provision of Order XVIII of Rule (1) of CPC. The applicants filed the suit for recovery of money and hence they ought to have adduce the evidence to prove their claim. The respondent has never admitted the facts https://www.mhc.tn.gov.in/judis

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alleged by the plaintiffs and therefore, the applicants have to let in evidence to substantiate their claim.

At this juncture, it is pertinent to state that the initial burden of proof would be on the plaintiffs in view of Section 101 (104 of BSA) of the Evidence Act and when the person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The element rule in Section 101 is inflexible and in terms of Section 102 (105 of BSA) the initial onus is always on the plaintiff and if he discharges that onus and make out a case which entitle him to a relief, the onus shift to the defendant to prove those circumstances, if any which would dis entitled the plaintiffs to the same. Hence, he prays for dismissal of the present application.

In the written statement filed by the respondent/defendant, he has stated that he had borrowed funds from various persons including the plaintiff. It seems that it is not a clear admission made by the defendants. Under such circumstances, the plaintiff has to prove his case. Hence this Court is not inclined to allow this application and the same is liable to be dismissed.