1. Rule, with the consent of the parties, made returnable forthwith and heard.

2. The issue which usually crops up as regards whose right is to begin in a suit has once again cropped up in the present proceedings.

3. The petitioner who is original defendant takes exception to the order dated 25th March, 2009 by which order, the trial Court, i.e. the learned Civil Judge, Senior Division, Pen has directed the defendant to step into the witness box and lead his evidence in the first instance. The petitioner also takes exception to the order dated 2nd September, 2009 by which the Review application filed by the petitioner came to be rejected.

4. Shorn of unnecessary details, a few facts can be stated thus: The respondents herein are the original plaintiffs who have filed Regular Civil Suit No. 114 of 2008 for partition and for declaration. It is the case of the plaintiffs that they have half share in the property mentioned in para 1-B of the plaint. The plaintiffs have therefore, sought partition and separate possession to the said extent. In the said suit, the defendant has filed his written statement and also a counter claim. It is the case of the defendant that there is no joint family property as the ancestral properties had already been partitioned more than 30 years back. The defendant claims exclusive right to the suit property, which is the subject matter of the counter claim. In the light of the pleadings of the parties, three issues were framed at Exh.21-B. The issues are to the following effect:

i. Whether the defendants prove that there is a prior partition of the suit property ?

ii. Whether the plaintiffs are entitled for partition and to what share ?

iii. Whether the plaintiffs are entitled to the declaration ?

In the light of the defence of the defendant in his written statement of there being a prior oral partition, the trial court, by the impugned order dated 25th March, 2009, directed the defendants to first step into the witness box and adduce his evidence. As mentioned herein above the said order has been taken exception to in the above petition. The defendant had therefore filed an application for review of the impugned order dated 25th March, 2009 which application came to be rejected by order dated 2nd September, 2009.

5. The question which arises for consideration is whether the trial Court could order the defendant to lead his evidence first. For an answer to the controversy, it would be necessary to advert to Order 18 Rule 1 and 3 of the Code of Civil procedure and more especially, order 18 Rule 1 which reads thus:

"Rule-1: Right to begin.- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.”

Rule 3. Evidence where several issues._ Where there are several issues, the burden of provi9ng some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case."

6. It is therefore postulated in Rule 1 of Order 18 that ordinarily, it is the plaintiff who has to begin by leading his evidence. The only exception is where the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in such a case the defendant would have a right to begin.

7. In so far