Under Order 18 Rule 1 of the CPC, the burden of proof shifts to the defendant to lead evidence first if they introduce new facts or a counterclaim, such as asserting ownership of property based on a will.

ORDER

IA No. 931 of 2026: An application has been moved on behalf of the petitioners for dispensing with service on respondents No. 2 to 6 on the ground that respondents No. 2 to 6 are formal parties and respondent No. 1 is the main contesting party to the litigation, against whom remedy has been sought by the petitioners. Notices with process fee have already been filed by the petitioners.

2. Considering the aforesaid reason, IA is allowed. Respondents No. 2 to 6 are hereby dispensed with.

3. This Misc. Petition has been filed by the petitioners (defendants), challenging the order dated 23-08-2024 passed by the 16th District Judge, District Gwalior in Regular Civil Suit No. 357-A of 2020. In the impugned order, the learned trial court allowed the application filed by respondent No. 1 (plaintiff) under Order 18 Rule 1 read with Section 151 of the CPC, thereby directing the defendants to lead evidence first in the matter.

4. A few facts giving rise to present petition, as narrated therein, are that plaintiff (respondent No.1) has filed a civil suit for partition, declaration, and permanent injunction in respect of certain properties situated at various locations, including buildings at Lashkar and lands at village Billowa. The plaintiff claims that the disputed properties are ancestral and that the will executed by the father of the defendants (Shri Kedarnath) in favor of the petitioners (defendants) is invalid. The petitioners, on the other hand, contend that the properties are self-acquired properties of Shri Kedarnath, who executed a will in favor of the petitioners. The trial court framed several issues in the matter, and the burden of proof for issues No. 4 to 9 was placed on the petitioners (defendants). The plaintiff, through his application under Order 18 Rule 1 CPC, prayed for a reversal of the order of evidence presentation, requesting that the defendants be required to lead evidence first. This application was allowed by the trial court, which directed the petitioners to lead evidence first. Hence, the present petition.

5. It is contended on behalf of petitioners that the trial court erred in allowing the application of the plaintiff. Under established principles of law, the plaintiff has the burden of proving his own case and cannot shift this burden to the defendants. The trial court wrongly placed the burden of proof on the defendants merely because some parts of the plaintiff’s claim had been admitted. The claims made by the plaintiff regarding the disputed properties are still to be proven, and therefore, the plaintiff should lead evidence first. Relying on the provisions of Order 18 Rule 1 CPC, which grants the plaintiff the right to begin the case unless facts are admitted by the defendant, it is contended on behalf of the petitioners that in the present case, no such admissions were made by the defendants to justify shifting the burden of proof. The petitioners (defendants) have filed a counterclaim in the suit, asserting their rights over the properties based on the will executed by their father, Shri Kedarnath. Since the will is the primary issue in the case and the petitioners have alleged ownership based on the will, it is appropriate for the defendants to lead evidence first to prove the validity of the will and their ownership of the disputed properties. Hence, they prayed for setting aside the impugned order by rejecting the application filed by the plaintiff under Order 18 Rule 1 of the CPC.

6. Upon perusal of the impugned order and the arguments ad