12 important distinguish between burden of proof and onus of proof
Answers
Burden of Proof and Onus of Proof
There is difference between burden of proof and onus of proof. The ‘Burden of Proof’ is the burden to prove the main contention of party requesting the action of the court, while the ‘Onus of Proof’ is the burden to produce actual evidence. The Burden of Proof is constant and is always upon the claimant but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case.
The aspects of burden of proof and onus of proof were considered by the Supreme Court in the case of A. Raghavamma & anr. vs.A. Chenchamma & anr., AIR 1964 SC 136 . 143. The Court had to consider a case of a party claiming to have been adopted and his right under a partition of the joint family in which he claimed right upon partition. Extensive evidence was led by both the parties. It was observed in paragraph 12 thus:
There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidents of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.
It was further observed in paragraph 22 thus:
.... but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance.
What must, therefore, be appreciated is the distinction between the burden and the onus of proof. The burden of proving authorised occupation is upon the noticee under the express mandate of the PP Act. Therefore, he has to discharge that burden. That cannot shift. For discharging that burden he must necessarily lead evidence first. If he shows the authorisation of his occupation, the onus would then shift to the landlord / public authority to show how the authorised occupation ceased to be authorised and how and when it became unauthorised. That is how the judgments in the cases of Nusli Neville Wadia (supra) and Nandini J. Shah (supra)laid down who would lead evidence followed by whom. The evidence in rebuttal would be required if the onus (not the burden) were to shift to prove something further.
The contradistinction between burden and onus of proof was further considered in the case of Anil Rishi vs. Gurbaksh Singh, AIR 2006 SC 1971. In that case the Plaintiff claimed that the sale deed purportedly entered into by him with the Defendant was forged and fabricated. It was for the Plaintiff to prove that fact. An issue casting the burden on him was framed. It was then reframed putting the burden on the Defendant to prove that it was genuine. Repelling the reasoning of the Courts below that the Plaintiff cannot prove the negative and that it would be difficult for him to prove that fact and the Defendant would be better able to prove the document since he propounded it and had it in his possession, and considering Sections 101 and 102 of the Evidence Act, it was observed in paragraph 19 of this judgment 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.
The elementary rule is Section 101 is inflexible. In terms of Section 102 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 disentitle the plaintiff to the same.
The extent of importance that has to be put on the onus of proof that is on a party consequent upon the burden that lies on such party to prove its claim came to be considered by the Supreme Court in the case of State of Madhya Pradesh vs. Bhopal Sugar Industries Ltd., AIR 1964 SC 1179. That was a case in which a tax was levied only upon persons carrying on agricultural operation in Bhopal region. It was challenged as discriminatory.
Burden of proof and onus of proof are phrases used in legal world, more primarily while participating in court's proceedings.
Explanation:
Burden of proof-
- The plaintiff is charged with burden of proof in order to set a case against defendant. The court hears the case as to why such defendant should not be tried in the court of law.
- Court weighs on the facts based on which defendant was produced.
Onus of proof-
- When the defendant produced, the plaintiff bears onus of proof to submit evidences to the court of law.
- The plaintiff to contest the case on such evidences.
- The defendant can offset evidence based on counter-evidence.
Explanation on onus of proof and burden of proof:
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