Paramasivam vs Elumalai

G. Rajasuria, J.—Animadverting upon the order dated 04.09.2008, passed by the learned Principal District Munsif, Villupuram, in I.A. No.

295 of 2008 in O.S. No. 42 of 2005, this civil revision petition is focussed.

Heard both sides.

The facts giving rise to filing of this revision as stood exposited from the records could succinctly and pithily be set out thus:

The respondent/plaintiff filed the suit O.S. No. 42 of 2005 seeking the following reliefs:

(a) granting permanent injunction restraining the defendants, their men and agents or servants from interfering, injuring or dealing in any manner with

the suit properties and with the plaintiff''s peaceful possession and enjoyment over the same;

(b) directing the defendants to pay the cost of the suit; and

(c) to grant such other relieves as to this Hon''ble Court may deem fit and proper in the circumstances of the case.

Whereupon, the defendant entered appearance and filed written statement as well as counter claim. Thereupon the matter was posted for trial. At

that time, I.A. No. 295 of 2008 was filed by the plaintiff seeking the Court to direct the defendant to adduce evidence at the first instance,

whereupon the Court also allowed that I.A. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is filed on various

grounds.

The learned Counsel for the petitioner placing reliance on the grounds of revision would develop his argument to the effect that the order of the

lower Court is totally against Indian Evidence Act and it should not have called upon the defendant to adduce evidence even before the plaintiff

adducing evidence on his side.

A mere perusal of the lower Court''s order, to say the least, is far from satisfactory as throwing to winds the basic principles of law governing

adducing of evidence it passed such an order. The lower Court simply directed the defendant to adduce evidence at the first instance. The

defendant no doubt places reliance on an agreement to sell under which he claims to be in possession of the property, whereas the case of the

plaintiff is that he being the owner of the property and has been in possession and enjoyment of the same, in this bare injunction suit, inasmuch as

the defendant disputes the possession of the plaintiff, it is the duty of the plaintiff to go into box first and adduce evidence to prove that as on the

date of filing of the suit, he was in possession and enjoyment of the same. Simply because the defendant admitted that the plaintiff is the owner of

the property and he and the defendant entered into an agreement to sell under which the defendant was put in possession, the onus or the initial

burden would not be on the defendant. It is for the plaintiff only to prove his case at the first instance. The trial Court misdirected itself. Hence the

order of the lower Court is set aside and it shall direct the plaintiff to adduce evidence first and thereafter the defendant is bound to adduce rebuttal

evidence in support of his plea and his counter claim.