The right to begin evidence in a trial may depend on the circumstances, with the defendant allowed to present evidence first when supported by a valid defense.

ORDER

This revision petition has been filed by the 1^st defendant in O.S.No.214 of 2016, challenging the order in I.A.No.7 of 2024, permitting the 1^st respondent to begin and by directing the plaintiffs to adduce evidence thereafter.

2.I have heard Mr.N.S.Suganthan, learned counsel for the petitioner and Mr.N.Mayilsamy, learned counsel for the respondents 1 and 2.

3.The learned counsel for the revision petitioner would submit that the suit is one for partition and by way of defence, the revision petitioner had pleaded that there was an oral family arrangement in the family in respect of the suit schedule properties and the properties were already divided in terms of the said family arrangement. In view of the said specific contention raised by the 1^st defendant in the suit, the plaintiff took out an application to direct the defendants to lead evidence first. The said application was contested by the revision petitioner on the ground that the suit has been pending for eight years and the plaintiff has failed to commence trial and that despite giving an undertaking to conduct the suit on a day to day basis, the present application has been filed. However, the Trial Court has allowed the application and directed the 1^st defendant to begin evidence and permitted the plaintiff to adduce evidence thereafter.

4.The learned counsel for the petitioner would state that the plaintiff has not shown any interest in prosecuting the suit. In fact, an earlier suit for partition in O.S.No.229 of 2015 before the Principal Subordinate Court, Tiruppur, was dismissed for non-prosecution and even the present suit was dismissed for non prosecution and in the restoration application, they had filed an undertaking affidavit assuring the Court that they would conduct the suit on a day to day basis and accepting the condition alone, the suit was restored to file. Therefore, it is contended that it is not open to the petitioner to seek for direction to the defendants to begin.

5.The learned counsel for the petitioner would further submit that the issue Nos.1 to 4 that have been framed in the suit, are clearly casting burden of proof on the plaintiff and the Trial Court has erroneously allowed the application without ascertaining on whom the burden of proof lies. He would further submit that the only intention of the plaintiff was to avoid the witness box and protract the proceedings. The learned counsel for the petitioner also relies on the decision on the Hon'ble Supreme Court in Jami Venkata Suryaprabha and Another Vs. Tarini Prasad Nayak and Others, in Special Leave Petition (Civil) No.29045 of 2024 dated 09.12.2024, where the Hon'ble Supreme Court interpreting Order XVIII Rule 1 of CPC held that the Rule provides for the plaintiff's right to begin the evidence, but not the Court's obligation to ask the plaintiffs to begin first and that there is no impediment for the Court to call upon either party to lead evidence first, depending upon the facts and circumstances of the case and the nature of issues framed. The Hon'ble Supreme Court further held that either the party can insist that the other one should be asked to lead evidence first and it would all depend upon what the Court deems proper in the circumstances.

6.This Court, in P.Lingasamy vs. B.Pramavathy and Another, reported in

2017 (1) CTC 305 , adverting its attention to Order XVIII Rule 1 of CPC, held that when several defences have been taken by the defendant, one of which was based on a Will, then the defendant cannot