MOHD. ABDULLAH AZAM KHAN versus NAWAB KAZIM ALI KHAN

Citation: [2022] 12 S.C.R. 391 · Decided: 07-11-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Dismissed

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Judgment (excerpt)

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[2022] 12 S.C.R. 391
391
MOHD. ABDULLAH AZAM KHAN
v.
NAWAB KAZIM ALI KHAN
(Civil Appeal No. 104 of 2020)
NOVEMBER 07, 2022
[AJAY RASTOGI AND B. V. NAGARATHNA, JJ.]
Constitution of India, 1950 – Art.173(b) – Breach of –
Qualification for membership of the State Legislature – Age criteria
for contesting State Legislative Assembly elections – Discrepancy
in date of birth – Burden of proof – Public documents – Probative
value – Two different Birth Certificates of appellant showing date
of birth at two different places and on two different dates, namely,
one on 01.01.1993 at Rampur and another on 30.09.1990 at
Lucknow – Elections took place for Uttar Pradesh State Legislative
Assembly during January-March 2017 – Appellant was declared
elected from the Suar constituency, District Rampur – Respondent-
election petitioner challenged the election of the appellant on ground
that he was born on 01.01.1993 and therefore was less than 25
years of age when he filed his nomination papers, and was not
qualified to contest the election for State Assembly – In rebuttal,
appellant claimed his date of birth to be 30.09.1990 – High Court
declared the election of appellant to be void and set aside his election
– Held (per Ajay Rastogi, J.): When any fact is especially within
the knowledge of a party, the burden of proving it lies upon that
party – The term “especially” means facts which are pre-eminently
or exceptionally within the knowledge of a person – This rule cannot
apply when the fact is such as to be capable of being known also
by persons other than the party – In the instant case, respondent
established from the documentary evidence which belongs to the
appellant that, from day one appellant has shown his date of birth
as 1st January, 1993 not just in his academic record but also in the
birth certificate obtained from Nagar Palika, Rampur in the year
2012 – This could have been possible only when the relevant
documentary evidence was available with the competent authority
in the office of Nagar Palika, Rampur – Since the documents were
issued from the office of the public officers based on the relevant
data made available by the appellant himself, there was sufficient
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
probative value, as required u/s.35 of the Evidence Act – Merely
because the same was later on cancelled by the appellant, it may
not lose its evidentiary value – Date of birth of appellant throughout
in his records is 1st January, 1993 and only in the year 2015 when
he became keen to enter into active politics, DW-5- his mother,
submitted an application before Nagar Nigam, Lucknow for the
first time on 17th January, 2015, claiming that appellant was born
on 30th September 1990 – Procedure prescribed u/s.13(3) of the
Act, 1969 was not followed by competent authority at Nagar Nigam,
Lucknow while issuing fresh certificate of date of birth on 21st
January, 2015 – No probative value could have been attached to
documentary evidence obtained from the Queen Mary’s Hospital,
Lucknow, as a foundation on which the birth certificate was issued
on 21st January 2015 by Nagar Nigam, Lucknow – Impugned
judgment of High Court accordingly upheld – Held (per B.V.
Nagarathna, J.) (Concurring) : As per s. 101, the burden of proving
a fact always lies upon the party who substantially asserts the
affirmative and until such burden is discharged, the other party is
not required to be called upon to prove his case – Burden to prove
documents lie on plaintiff alone as onus is always on the person
asserting a proposition or a fact – Once the plaintiff discharges the
initial burden of prove and makes out a case which entitles him to
relief, in terms of s. 102, the onus shifts to the defendants to prove
those circumstances which would disentitle the plaintiff of the relief
– However once the evidence has been led by the contesting parties,
abstract considerations of onus are out of place and truth or
otherwise must always be adjudged on the basis of evidence led by
the parties – s. 106 is an exception to the general rule and it stipulates
that when a fact to be proved is peculiarly within the knowledge of
a party, it is for him to prove it – In an election petition, the initial
burden to prove determination of age of returned candidate lies on
the petitioner, however, burden lies on the respondent to prove facts
within his special knowledge – In the present case, despite the
voluminous oral and documentary evidence,

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