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Querist : Anonymous (Querist) 01 January 2010 This query is : Resolved
sir
In lower court, the documentary evidences against the respondent gets proved to be true but the petitioner fails in the cross examination to prove the main fact so the order given ex parte does not get set aside by lower court. Now can the petitioner still go to upper court on the basis of the documentary evidences which are already proved to be true ?
For ex. Petioner proves one false statement of the respondent by some documents but petioner in cross examination fails to prove another statement based on which the appeal has to be heard and decided. So the merits are partial from both the parties that means both petioner and respondent seem to be false at some points. So how the court will take decision?

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Raj Kumar Makkad (Expert) 01 January 2010
No concrete opinion can be given on the basis of unclear facts produced by you. Court has to take into consideration only the facts brought on file and decision accordingly shall be given, One thing is clear, if petitioner fails to prove, the case is dismissed and thus loss is going to be suffered by him instead of respondent. One has to stand on its own legs. Even if respondent is wrong even then loss shall be to the petitioner.

Devajyoti Barman (Expert) 01 January 2010
The onus lies upon the plaintiff to prove his own case and the principle of civil jurisprudence is 'Preponderance of Probabilities' to establish one's case.

Querist : Anonymous (Querist) 01 January 2010
I have a query on these answers. Even if the petitioner fails to prove the fact in cross examination and the decree is not set aside then still will the petitioner be able to approach upper court on the ground's of his evidences which are already proved?

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