The burden of proof and onus of proof in civil cases, especially in suits for declaration and non-infringement, lies on the party who asserts a particular fact. The responsibility of producing evidence in support of the case lies with the plaintiff, especially when seeking the relief of non-infringement.

K.K.SASIDHARAN, J.

1. Whether the right to begin as provided under Rule 1 and 2 of Order XVIII of Civil Procedure Code is really a right or is in the nature of a legal obligation of the plaintiff to produce his evidence at the first instance is the substantial question that arises for consideration in these original side appeals.

2.These appeals are directed against the Order dated 10 March 2010 in C.S.No.979 and C.S.No.1111/2007 whereby and where under the learned Single Judge directed the appellant being the defendant in C.S.No.979/2007 and the plaintiff in the subsequent suit, to start with the letting in of evidence.

3. The parties are referred to as plaintiff and defendant in accordance with their status before the trial Court in the suit in C.S.No.979/2007.

The facts :-

First suit :-

4. The suit in C.S.No.979/2007 was instituted by the plaintiff against the defendant praying for the following reliefs :-

"(a) Declaring that the threats held out by the defendant on September 1 and 3, 2007 that the plaintiff is infringing the defendant's patent no.195904 and the defendant is proposing to take infringement action against plaintiff are unjustified;

(b)Declaring that the plaintiff's product TVS Flame which uses two spark plug with screw-fitted sleeve and three valves does not infringe patent no.195904 of the defendant;

(c)Granting permanent injunction restraining the defendant by themselves or through their agents, servants, licensees, employees and distributors and anyone claiming through them and/or all those in active concert and participation with them from continuing the issuance of threats that the plaintiff is infringing the defendant's patent no.195904 and/or that the defendant is contemplating infringement action against the plaintiff or threats of like nature and import, directly or indirectly in any manner including by way of circulars, advertisements and communications, oral or in writing to the plaintiff or any other person and also thereby interfering with the launch and sale of the product TVS Flame.

(d) directing the defendant to compensate the plaintiff a sum of Rs.1,00,00,000 or such other amount as this Hon'ble Court may determine after the records are produced for the damages sustained on account of the unjustified threats made by the plaintiff;

(e) for an order for costs of the suit in favour of the plaintiff; and

(f) For such further or other relief as this Hon'ble Court may deem fit and proper based on the facts and circumstances of this case."

5. In the plaint in C.S.No.979/2007, the plaintiff would contend thus :-

(a)Plaintiff is a prominent member of the well known TVS Group. Plaintiff has been involved in the manufacture of automobile products and they have secured large number of patents for the products developed by them. The plaintiff had introduced a 125 CC motorbike known as "TVS Flame".

(b)The plaintiff on 30 August 2007, unveiled seven new products including three wheelers in three variants : an electric scooter, a new 110 cc Star City, new 125 CC Motorcycle by name "TVS Flame". The rolling out of 7 new products and the features of those products and more specifically of "TVS Flame" had excited the media and industry and it was well received. TVS Flame is perceived as a vehicle that would satisfy both the class of riders viz., fuel efficient conscientious consumers and power conscientious consumers.

(c)The unveiling of TVS Flame 125 CC bike had the effect of eroding the excitement, hype and interest generated by the defendant's product Bajaj XCD 125 CC planned for launch on 9 September 2007 i.e. after ten days of the unveiling of TVS Flame by the plaintiff. The plaintiff in the meantime made it known to the market that they would soon enter into three wheeler which was hitherto virtually a monopoly of the defendant and the same caused a severe dent in the marketing triumph claimed by the defendant hitherto. The defendant who had planned to launch its 125 Bajaj XCD obviously perceived