ORDER :

The revision has been filed against the order passed in I.A.No.291 of 2016 in O.S.No.251 of 2013 on the file of the I Additional District Judge, Erode.

2. The revision petitioner is the defendant. The plaintiff and defendant are siblings.

3. For the purpose of convenience, the parties are referred as they are arrayed in the Original Suit.

4. Brief facts of the case leading to filing of the civil revision petition is as under:-

(i) The plaintiff filed the suit for partition in respect of the suit properties, which, according to the plaintiff are both ancestral and self acquired properties of her father, who died intestate.

(ii) The defendant had filed a written statement denying the averments of the plaintiff and contended that his father Nallappa Gounder, during his life time, on 27.1.2000, executed a Will in his favour while he was in a sound and disposing state of mind.

(iii) The plaintiff filed a reply statement denying the execution of the Will in favour of the defendant.

(iv) The Trial Court framed issues and when the matter was taken up for trial, the plaintiff had filed I.A.No.291 of 2016 under Order XVIII Rule 1 and Section 151 CPC directing the defendant to begin with the case first.

(v) In the petition, it was contended by the plaintiff that the defendant had taken a stand in para 10(2) that their father had executed a Will on 27.1.2000 in favour of the defendant bequeathing the entire A schedule properties and items 1 to 3 of B schedule properties and as far as items 4 and 5 of B schedule properties, he had purchased out of his own and that he had also pleaded ouster and adverse possession against the plaintiff, however, according to the plaintiff, the Will dated 27.1.2000 is a forged and not a true and genuine one and thereby the burden of proof heavily lies on the defendant to prove the existence of the Will and with regard to ouster and adverse possession by adducing appropriate evidence both oral and documentary.

(vi) The defendant filed a counter contending that as per Order XVIII Rule 1, the right to begin was given exclusively to the defendant which can be utilised by the defendant only on his own volition and the plaintiff cannot seek to enforce it to direct the defendant to begin the case first.

(vii) The Trial Court after hearing both the parties, had allowed the petition and held that the onus of proof lies heavily on the defendant that his father Nallappa Gounder had executed a Will in his favour and thereby directed the defendant to let in evidence first, against which, the present revision has been filed.

5. The learned counsel for the revision petitioner/defendant is present. Despite service of notice and printing of name of the respondent, he neither appeared in person nor is represented by any counsel. This court directed the learned counsel for the petitioner to inform the learned counsel who appeared for the respondent herein before the court below and the learned counsel for the petitioner, after complying the said direction, reported before this court and produced necessary proof in this regard. Despite the matter being posted today and despite affidavit of service being filed, there is no representation for the respondent.

6. The learned counsel for the petitioner would submit that the provision under Order XVIII Rule 1 CPC confers a right only on the defendant in contingency referred therein, to begin which is, apparently, an enabling provision entitling of right to begin and it does not confer any power on the court or the plaintiff to compel the defendant to enter into the witness box first to adduce evidence in support of his claim before the plaintiff enters into the witness box. He would also submit that there is no specific provision under Order XVIII that the court can presume power to direct the defendant to let in evidence first and the right to begin conferred under Order XVIII Rule 1 is an exclusive right given only to the defendant and not to the plaintiff and only the defendant can exe