2014 (8) TMI 294 - HC - VAT and Sales Tax

Liability to pay dues - recovery of dues from the directors - is stated that the revision petitioner is not the Director of the 2nd respondent company and he has not shown as Director in the books of Registrar of Companies - Onus to prove - Held that - Admittedly, the revision petitioner has not filed any affidavit. Only the alleged brother-in-law of the revision petitioner namely one C.K.Simon alone filed the affidavit. No sufficient reason has been stated in the affidavit, for not filing any affidavit by the revision petitioner and only filed by brother-in-law of the revision petitioner. On the sole ground, the petition filed on behalf of the revision petitioner is not maintainable, as rightly pointed out by the learned counsel appearing for the respondents. Revision petitioner seeking relief of declaration and other reliefs and therefore, the revision petitioner should have examined witnesses to prove his case at first instance. A careful reading of the pleadings in the above said plaint and written statement revealed that the onus is only on the revision petitioner to prove the contentions and hence the revision petitioner should prove the contentions raised in the plaint by adducing reliable oral and documentary evidence. The learned counsel appearing for the revision petitioner submitted that in view of the averments made in the written statement the onus is only on the respondents to prove their case and therefore, the respondents should examine their witnesses first. Further, the learned counsel appearing for the revision petitioner submitted that since the brother-in-law of the revision petitioner well aware of the facts of the case, he has filed the affidavit and there is no illegality in filing the affidavit by brother-in-law, on behalf of the revision petitioner. A careful perusal of the averments made in the plaint and the written statement in the instant case revealed that the defendant had not admitted the material facts stated in the plaint and therefore, the above said facts in the above said decisions are differs and hence, not applicable to the facts of the present case - trial court has correctly discussed both side contentions and finally dismissed the above said petition and therefore, there is no need to interfere with the findings of the trial court and the revision petition is liable to be dismissed - Decided against assessee.

Summary

Issues:
- Revision petition against fair and decreetal order
- Suit for declaration and permanent injunction
- Burden of proof on 1st respondent
- Maintainability of petition
- Onus of proof on revision petitioner
- Affidavit filed by brother-in-law
- Applicability of previous court decisions
- Dismissal of revision petition

Analysis:
1. The revision petitioner filed a suit seeking a declaration that they are not a Director of the 2nd respondent company and an injunction against the 1st respondent from recovering any dues. The trial court framed necessary issues and commenced the trial.

2. In a part-heard stage, a petition was filed by the revision petitioner's brother-in-law stating that the revision petitioner is not a Director of the company. The 1st respondent argued that the revision petitioner should provide evidence first, while the counter from respondents claimed the petition was not maintainable as the affidavit was filed by the brother-in-law.

3. The trial court dismissed the petition, emphasizing that the revision petitioner did not file an affidavit, rendering the petition not maintainable. It was noted that the revision petitioner should have examined witnesses to prove their case initially.

4. The revision petitioner argued that the brother-in-law filing the affidavit was not illegal, citing a previous court decision. However, the court found the cited cases not applicable to the present situation, as the defendant had not admitted the material facts in the present case.

5. The court concluded that the trial court correctly considered both sides' contentions and dismissed the petition, stating no interference was necessary. Therefore, the Civil Revision Petition was dismissed, with no costs awarded, and the connected miscellaneous petition was closed.