1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3527 of 2009 (Ambadas s/o Kisan Chirde and another v. Shantibai wd/o Sheshrao Suryanwanshi and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri B.G. Kulkarni, Advocate for Petitioners. Ms M.N. Shesh, Advocate for Respondents. Coram : R.C. Chavan, J. Dated : 5 th October, 2009 This petition is directed against the order passed on an application filed by the petitioners, whereby the petitioners/plaintiffs in Regular Civil Suit No.92 of 1998 before the learned Civil Judge, Junior Division, Pusad, sought production of caste certificate issued to defendant No.2 by one Shri Aswar on 8-11-1985, whereby defendant No.2 was held to be a tribal, belonging to Scheduled Tribe. The plaintiffs had filed the suit for recovery of possession of the field in question on the ground that defendant No.2 does not belong to Scheduled Tribe. The application seems to have been filed after the evidence of the parties was over and they had closed their 2 respective cases. The learned Judge, therefore, held in paras 6 and 7 of the impugned order as under : “6. No doubt that document of which discovery and production sought would throw light upon the question in controversy but as stated above at this stage of the suit this court is of view that production of said document is not necessary because it will not suffice any purpose as both the sides hereby closed their evidence. Mere order for the production of document does not make the document evidence in the case unless and until it is legally proved.” “7. Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party’s evidence of his case or title. In the present case the document of which production and discovery is sought is the evidence of the defendants. Defendants have not filed said evidence on record. What will be its consequence is not necessary to consider here and it will be considered at the time of writing judgment. So on this count also plaintiff is not entitled for its discovery and production.” I have heard both the learned counsel for the petitioners and the respondents. 3 The learned counsel for the respondents submitted that burden to prove that respondent No.2/defendant does not belong to Scheduled Tribe is cast on the plaintiffs in issue no.2. The defendant would undoubtedly be aware that the issues in a civil suit do not reflect the burden which perpetually remains on a party. Burden in a civil suit to prove an issue is one which shifts and the issue only reflects the initial burden. When the parties join an issue, the party, who is eventually unable to discharge the burden that may be shifted to him, fails. In a case of an issue casting a negative burden on a party, statement on oath by the party concerned, if held reliable, is sufficient to shift that burden on the other side, the basic rule of evidence being that a party would ordinarily be obliged to prove the positive of an issue and not the negative of the issue. The learned Trial Judge has also observed that the burden to prove the questions concerned, irrespective of how the issue was framed, was possibly on the defendants, since the learned Judge observes that in the present case the document of which the production and discovery are sought, is the evidence of the defendant. The learned Judge goes on to observe that the defendants have not filed the said evidence on record . He has also indicated that the consequences would be considered by 4 him at the time of writing of the judgment. This is sufficient to take care of the apprehensions of the petitioners. In view of this, the petition is dismissed. Judge. pdl