The term "right to begin" is not merely a right. It is rather a duty or legal obligation. It is so because the plaintiff has to win or lose the case on the basis of his own case and not on the weakness of the defendant's case.

CASE BRIEF: Bajaj Auto Ltd. Vs. TVS Motor Company Ltd

CASE NAME: Bajaj Auto Ltd. Vs. TVS Motor Company Ltd

CITATION: O.S.A. Nos.132 and 133 of 2010

COURT: Madras High Court



DECIDED ON: 4 October, 2010

RELEVENT STATUTES: Civil Procedure Code, 1908

Letters Patent Act, 185

The Patents Act, 1970


1. 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.

2. In the plaint in C.S.No.979/2007, the brief facts were: 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".

3. 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".

4. 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 TVS Flame as a threat to its product. This paved the defendant to indulge in allegation of infringement and threat of action against the alleged infringement for its product's proposed to be launched on 9 September 2007.

5. The news of the announcement of launch of TVS Flame and other products were broadcast on TV Channels on 30 August 2007 and it was also published in the newspapers on the next day. Immediately on 1 September 2007, the defendant put its high officials on television channels to accuse, allege and threaten that DTSi technology has been patented by defendant and that the said engine format has been copied by the plaintiff.The statement made it clear that there is potential for legal course and that is how the defendant is proceeding..

6. The defendant's accusation of infringement and threat to act against the plaintiff for infringement made through its officials and representatives on 1 September 2007 over popular TV Channels, which were carried in the print on the next day had disturbing and demoralizing effect on the customers of the plaintiff, the employees, investors and other stake holders and generally it had adverse and damaging effect on the brand value of the plaintiff's future products under launch, particularly the TVS Flame. Therefore, the plaintiff issued a statement on 2 September 2007 calling upon the defendant to withdraw the threat and the libelous statements made by it or to face action for damages.

7. The defendant on 3 September 2007 issued a statement indicating their use of twin spark technology. The threat of infringement issued by the defendant on 1 September 2007 which was impliedly admitted by the defendant on September 3, 2007 as groundless, falls within the scope of Section 106 of the Patents Act, 1970. Once the fact of threat is established, plaintiff is entitled to move the Court under Section 106 of the Patent Act against the threat of infringement action issued by the defendant.

8. Accordingly, the plaintiff prayed for a decree of declaration of non-infringement, groundless threat and consequential injunction, besides payment of compensation.


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 ?


1. The court observed that a combined reading of Rules 1 and 2 of Order 18 CPC would show that the person who got a right to begin must lead evidence first. As per the statutory scheme, the plaintiff is given the right to begin the case. This right would not give the plaintiff a further right to compel the defendant to produce his evidence at the first instance.

2. The question of defendant beginning the case would arise only in cases wherein the defendant admits the facts alleged in the plaint and contends that either on pointof law or on some additional facts alleged by him, the plaintiff is not entitled to any part of the relief which he seeks.It is only in such circumstances; the defendant gets the right to begin. Therefore, the "right", as defined in Rule 1 of Order 18 would not really be a "right" and is essentially a legal obligation to prove the case.

3. The court observed that hearing of the suit and the trial of the suit are totally two different concepts. Trial would commence the very moment the suit is instituted. The hearing of the suit is part of the trial process. Hearing relates to examination of witnesses, their continuous process not confined to producing and recording evidence. The right to begin as mentioned in Rule 1 of Order 18 CPC has to be treated as opening the case, production of evidence followed by arguments. In normal course, the plaintiff has to open the case and he should lead evidence to begin with.

4. In Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, the Supreme Court held that the burden of proving the fact rests on the party who asserts the affirmative and not on the party who denies it. The observation reads thus:- “Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

5. When there are two suits and the claims in both the suits are inextricably inter linked, the Trial Court would be justified in ordering a joint trial. In case joint trail is ordered, it would be open to the Trial Court to pass a discretionary order as to the suit in which evidence should be taken first. The normal practice is to open the case by the plaintiff.

6. In State Bank of India v. Ranjan Chemicals Ltd.,(2007) 1 SCC 97, the Supreme Court indicated the circumstances wherein a joint trial could be ordered :- “A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counterclaim in the consolidated action, a joint trial can be ordered.”

7. Since the plaintiff has admitted the earlier suit, it was their duty to establish that the first suit was on the basis of a different cause of action and as such, there was no legal bar in filing a second suit. This issue goes to the root of the matter and as such, the burden is on the plaintiff to provide materials to substantiate their contention that the cause of action for filing a second suit was altogether different. In spite of such burden of proof on the plaintiff to sustain the very suit, the learned Single Judge has shifted the burden and called upon the defendant to begin the case.

8. The plaintiff has also indicated that they have got all the materials to prove their contentions. The suit in C.S.No.979/2007 was prior in point of time also. Incidentally, it is to be mentioned that in case the defendant has not filed the subsequent suit in C.S.No.1111/2007, plaintiff was bound to prove their case and there was no necessity to decide the preliminary point as to who should begin first.

9. When the plaintiff seeks a decree of non-infringement, the question of burden of proof comes into play. The plaintiff has taken up the task of proving their contention that their TVS 125 CC Flame does not infringe the patent obtained by the defendant. Plaintiff has no case that the defendant was guilty of infringement of their patent.

10. The suit filed by the defendant in C.S.No.1111/2007 was in the nature of a counter claim. In fact, even according to the plaintiff, in case the defendant institutes a suit later, it would only be a suit with a counter claim.

11. The general principle is that the plaintiff should win or lose his case on the basis of the case set up by him. The defendant got a right to insist that he should not be compelled to disclose his evidence first as otherwise the plaintiff would tune his case accordingly. Therefore, the defendant was right in insisting that the plaintiff should prove his case first before calling upon him to adduce evidence.

12. The prejudice caused to a party cannot be corrected even in appeal otherwise than by a direction to record fresh evidence. The defendant has not come to the Court at the first instance. It was only the plaintiff who originally filed the suit at Bombay and later, before this Court. The fact that the defendant has also filed a suit at a later point of time would not absolve the plaintiff from their legal obligation to adduce evidence in support of their case by opening their case at the first instance.

13. Since the defendant has got a reasonable right to expect that he would be asked to disclose his evidence, only after opening the case by the plaintiff, any order which would change normal course would give a cause of action to the defendant to file an appeal invoking Clause 15 of the Letters Patent.

14. In Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8, the Supreme Court considered the circumstances wherein an appeal under Clause 15 of the Letters Patent could be filed. The observation reads thus :- "Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.”

15. The suit filed by the plaintiff was not one for injunction alone. It was a comprehensive suit for declaration and that too for a decree of non-infringement. The plaintiff has also claimed damages against the defendant. Since the plaintiff has sought the relief of non-infringement, naturally, they were required to lead their evidence first.


The court held the following:

1. In the result, these appeals are allowed and the common fair and decretal order dated 10 March 2010 in C.S.Nos.979/1997 and 1111/2007 are set aside. The plaintiff is directed to produce their evidence at the first instance. No costs.

2. The learned Judge is requested to decide the suit on merits and as per law, uninfluenced by the observations made in this judgment, as those observations were made only for deciding the limited issue as to who should begin first.

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