Misplacing the burden of proof and recording in the impugned judgment

10. The other ground which prevailed upon the Courts below to decide issues No.2 & 3 against the plaintiff was that she had failed to prove the allegation of fraud and misrepresentation. Again the approach of the Courts below to evaluate the evidence available on record was incorrect. The general rule is incumbit probation qui dicit, non qui negat i.e. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a 10. The other ground which prevailed upon the Courts below to decide issues No.2 & 3 against the plaintiff was that she had failed to prove the allegation of fraud and misrepresentation. Again the approach of the Courts below to evaluate the evidence available on record was incorrect. The general rule is incumbit probation qui dicit, non qui negat i.e. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a legality of transactions of gift incorporated therein. The facts of the case and principles of law applicable thereto were not properly appreciated and the Courts below misdirected themselves by misplacing the burden of proof and recording in the impugned judgment that the plaintiff had failed to prove issue No.2. Since the Courts below misplaced burden of proof, they clearly vitiated their own judgments. It is well established principle of the Qanun-e-Shahadat that misplacing burden of proof may vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter where the Courts below illegally and erroneously failed not to cast the burden on defendant No.1 by clearly misconstruing the whole case and thus resulted into recording of findings which are wholly perverse.

Part of Judgment

 THE LAHORE HIGH COURT LAHORE 

Civil Revision

1777836.955-15

2018 LHC 701