CORAMTHE HONOURABLE MR v. TVS Motor Company Ltd

with the letting in of evidence.3.The parties are referred to as plaintiff and defendant inaccordance with their status before the trial Court in the suit inC.S.No.979/2007.The facts :-First suit :-4.The suit in C.S.No.979/2007 was instituted by the plaintiffagainst the defendant praying for the following reliefs :-"(a) Declaring that the threats held out by thedefendant on September 1 and 3, 2007 that the plaintiff isinfringing the defendant's patent no.195904 and thedefendant is proposing to take infringement action againstplaintiff are unjustified;(b)Declaring that the plaintiff's product TVS Flamewhich uses two spark plug with screw-fitted sleeve andthree valves does not infringe patent no.195904 of thedefendant;(c)Granting permanent injunction restraining thedefendant by themselves or through their agents, servants,licensees, employees and distributors and anyone claimingthrough them and/or all those in active concert andparticipation with them from continuing the issuance ofthreats that the plaintiff is infringing the defendant'spatent no.195904 and/or that the defendant iscontemplating infringement action against the plaintiff orthreats of like nature and import, directly or indirectlyin any manner including by way of circulars,advertisements and communications, oral or in writing tothe plaintiff or any other person and also therebyinterfering with the launch and sale of the product TVSFlame.(d) directing the defendant to compensate theplaintiff a sum of Rs.1,00,00,000 or such other amount asthis Hon'ble Court may determine after the records areproduced for the damages sustained on account of theunjustified threats made by the plaintiff;(e) for an order for costs of the suit in favour ofthe plaintiff; and (f) For such further or other relief as this Hon'bleCourt may deem fit and proper based on the facts andcircumstances of this case."5.In the plaint in C.S.No.979/2007, the plaintiff would contendthus :-(a)Plaintiff is a prominent member of the well known TVSGroup. Plaintiff has been involved in the manufacture of automobile https://hcservices.ecourts.gov.in/hcservices/ products and they have secured large number of patents for theproducts developed by them. The plaintiff had introduced a 125 CCmotorbike known as "TVS Flame".(b)The plaintiff on 30 August 2007, unveiled seven newproducts including three wheelers in three variants : an electricscooter, a new 110 cc Star City, new 125 CC Motorcycle by name "TVSFlame". The rolling out of 7 new products and the features of thoseproducts and more specifically of "TVS Flame" had excited the mediaand industry and it was well received. TVS Flame is perceived as avehicle that would satisfy both the class of riders viz., fuelefficient conscientious consumers and power conscientious consumers.(c)The unveiling of TVS Flame 125 CC bike had the effect oferoding the excitement, hype and interest generated by thedefendant's product Bajaj XCD 125 CC planned for launch on 9September 2007 i.e. after ten days of the unveiling of TVS Flame bythe plaintiff. The plaintiff in the meantime made it known to themarket that they would soon enter into three wheeler which washitherto virtually a monopoly of the defendant and the same caused asevere dent in the marketing triumph claimed by the defendanthitherto. The defendant who had planned to launch its 125 Bajaj XCDobviously perceived TVS Flame as a threat to its product. This pavedthe defendant to indulge in diabolically unethical strategy totarnish TVS Products, particularly the TVS Flame, even before itslaunch, with groundless, unjust and unjustified allegation ofinfringement and threat of action against the alleged infringementso as to gain unfair and illegitimate advantage for its product'sproposed to be launched on 9 September 2007.(d)The news of the announcement of launch of TVS Flame andother products were broadcast on TV Channels on 30 August 2007 andit was also published in the newspapers on the next day. Immediatelyon 1 September 2007, the defendant put its high officials ontelevision channels to accuse, allege and threaten that DTSitechnology has been patented by defendant and that the said engineformat has been copied by the plaintiff. The officials of thedefendant further threatened that the construction of the engine ofTVS Flame was very close to one to one copying. The statement madeit clear that there is potential for legal course and that is howthe defendant is proceeding. The representatives of the defendantalso threatened that the defendant would not let the bike go underproduction with that engine. The statement containing threat wasgiven wide publication throughout India in the electronic and printmedia.(e)The defendant's accusation of infringement and threat toact against the plaintiff for infringement made through itsofficials and representatives on 1 September 2007 over popular TVChannels, which were carried in the print on the next day haddisturbing and demoralizing effect on the customers of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff, the employees, investors and other stake holders andgenerally it had adverse and damaging effect on the brand value ofthe plaintiff's future products under launch, particularly the TVSFlame. Therefore, the plaintiff issued a statement on 2 September2007 calling upon the defendant to withdraw the threat and thelibelous statements made by it or to face action for damages.(f)The defendant on 3 September 2007 issued a statementindicating their use of twin spark technology. The threat ofinfringement issued by the defendant on 1 September 2007 which wasimpliedly admitted by the defendant on September 3, 2007 asgroundless, falls within the scope of Section 106 of the PatentsAct, 1970. Once the fact of threat is established, plaintiff isentitled to move the Court under Section 106 of the Patent Actagainst the threat of infringement action issued by the defendant.(g)The plaintiff endeavored to establish beyond all doubtsthat the defendant has threatened them with infringement of itspatent. The plaintiff was therefore, justified by submittingrelevant materials to show that they have not infringed the patentof the defendant in question.(h)Accordingly, the plaintiff prayed for a decree ofdeclaration of non-infringement, groundless threat and consequentialinjunction, besides payment of compensation.6.The suit in O.S.No.979/2007 was resisted by the defendant byfiling detailed written statement. The material contentions as foundin the written statement reads thus :-(a)The defendant is a reputed business house engaged in themanufacture of automobile products.(b)The declaratory relief sought for by the plaintiff doesnot come under the purview of Section 106 of the Patents Act. Togrant a declaratory relief as to non-infringement, the plaintiffought to have complied with the procedures contemplated under theAct viz., plaintiff should have applied in writing to the defendantfor a written acknowledgment to the effect of the declarationclaimed and furnished to the defendant with full particulars inwriting of its products in question and the defendant had refused orneglected to give such an acknowledgment. Since there was total noncompliance with the statutory requirements, no declaration could begranted in favour of the plaintiff.(c)The statements made were only to assert the exclusiverights vested in the defendant by virtue of patent registration195904 and the right to take legal action for misuse. It was not athreat within the meaning of Section 106 of the Patents Act. (d)The present suit is barred by Order 2 Rule 2 of CPC. https://hcservices.ecourts.gov.in/hcservices/ Plaintiff has already filed a Suit bearing No.3132/2007 before theBombay High Court on the basis of the very same alleged pressstatement and on identical cause of action. Since the plaintiff hasomitted to sue for the reliefs claimed herein and no leave underOrder 2 Rule 2 CPC has been obtained, they are prevented from filingthe present suit for the omitted reliefs. (e)The plaintiff has enclosed several newspaper reports.But the defendant is not aware which particular reference isconstituted as threat. Defendant has not admitted the said pressreleases and the statements attributed to them and put the plaintiffto strict proof thereof.(f)The defendant has conducted preliminary examination ofthe plaintiff's engine in TVS Flame. The said examination hasrevealed that insofar as the third valve is concerned, it has norole to play in Indian Driving Cycle conditions. The result of thetest conducted by the defendant through an independent testingagency of international repute viz., TUV Rheinland, alsocorroborated their contention that the plaintiff has infringed theirpatent 195904. Therefore, assuming that the defendant issued athreat as alleged, it was not a meaningless threat. Defendant hasevery right to safeguard its statutory rights over the patent 195904which was granted under the Statute. As per Section 105 of PatentsAct, to institute a proceeding, proviso (a) and (b) have to becomplied with. Since the plaintiff has not complied with those preconditions before filing a suit for declaration of non-infringement,they are precluded from questioning the validity of the defendant'spatent. Accordingly, the defendant prayed for dismissal of the suit.Second suit :-7.Defendant in C.S.No.979/2007 filed a suit in C.S.No.1111/2007against the plaintiff with the following prayer :-"(a) permanent injunction restraining the defendant,its directors, officers, servants, agents, assigns,successors-in-business, legal representatives or anyoneclaiming through or under it from in any manner infringingthe plaintiff's patent no. 195904 and/or from using thetechnology/invention described in the said patentno.195904 and/or manufacturing, marketing, selling,offering for sale or exporting 2/3 wheelers, including theproposed 125 cc Flame motorcycle containing an internalcombustion engine or any internal combustion engine orproduct which infringes the plaintiff's patent no. 195904.(b)a preliminary decree be passed in favour of theplaintiff directing the defendant to render accounts ofprofits made by sale or offering for sale/export of 125 ccFLAME motorcycle or any other motorcycle of 100 cc to 125cc range with twin spark plug https://hcservices.ecourts.gov.in/hcservices/ technology infringing plaintiff's patent no. 195904.(c)the defendant be ordered and decreed to pay theplaintiff sum of Rs.10,50,000/- as damages forinfringement of patent no. 195904.(d)That defendant be ordered and decreed to deliver upto the plaintiff, for destruction all the infringingcopies and articles including vehicles containing enginesthat infringe the plaintiff's patent."8.The contentions taken by the defendant in their writtenstatement in C.S.No.979/2007 were reproduced in the plaint inC.S.No.1111/2007.9.The averments in the plaint in C.S.No.979/2007 constitutes thedefence in C.S.No.1111/2007.10.Since the pleadings were completed, the learned Single Judgeframed issues in both the suits as per order dated 24 November 2009.11.When the suit was ripe for trial, the learned Single Judgetook up the preliminary issue as to who should let in evidencefirst. Arguments were advanced on both sides as to who should leadevidence at the first instance. After hearing both the parties, thelearned Single Judge opined that the infringement being the centraltheme in both the suits and even though the first suit proceeds onthe validity of patent, to arrive at a proper decision, defendanthas to start with letting in of the evidence. Feeling aggrieved bythis decision, the defendant has filed these two appeals.Submissions :-12.The learned Senior Counsel for the defendant would submitthus:-(a)The suit in C.S.No.979/2007 being a suit regarding groundlessthreat, the plaintiff had to lead evidence first, unless thedefendant admits the issuance of threat. Since the defendant hascategorically denied the issuance of threat, the plaintiff has tolead evidence at the first instance.(b)The plaintiff had also sought for a declaration of non-fringement. In a suit for declaration, evidence has to be adduced onthe part of the plaintiff and the question of defendant adducingevidence comes only at a later point of time. Therefore, the learnedSingle Judge was not justified in directing the defendant to leadevidence first.(c)The direction given by the learned Single Judge was contraryto the scheme of civil jurisprudence.(d)The burden of proving the validity of the patent is always onthe persons who allege such invalidity. Therefore, the plaintiff was https://hcservices.ecourts.gov.in/hcservices/ duty bound to prove by adducing evidence at the first instance.(e)The issues framed by the learned Single Judge gives a clearindication that the plaintiff has to set out evidence first.(f)The plaintiff has raised several issues and even contestedthe very patent obtained by the defendant. Therefore, the burden ofproof and the onus is heavily on the plaintiff and in suchcircumstances, the learned Single Judge was not correct in directingthe defendant to lead evidence without asking the plaintiff to leadprimary evidence.(g)The plaintiff has made a categorical assertion in the plaintthat they would prove the groundless threat and non-infringement ofpatent by adducing evidence. Therefore, they should have been calledupon to produce evidence in support of their contentions.(h)The order passed by the learned Single Judge directing thedefendant to lead evidence first was against law and the scheme ofCivil Procedure Code and it caused serious prejudice to thedefendant and as such, the original side appeal under Clause 15 ofthe Letters Patent was clearly maintainable.13.The learned counsel for the plaintiff contended thus :-(a)The order challenged in this appeal was not a judgment withinthe meaning of Clause 15 of the Letters Patent and as such, the veryappeal was not maintainable.(b)It is true that in the plaint in C.S.No.979/2007, plaintiffhas undertaken the task of proving the groundless threat as well asnon-infringement. However, that does not mean that the burden nevershifted to the defendant to prove their case in view of thesubsequent suit filed by them in C.S.No.1111/2007.(c)The learned Judge has not directed the defendant inC.S.No.979/2007 to lead evidence first. The direction was to theplaintiff in C.S.No.1111/2007 to open their case. Therefore, itcannot be said that the defendant in the suit was made to producetheir evidence without directing the plaintiff to begin. Discussion :-14.The plaintiff has filed a comprehensive suit inC.S.No.979/2007 in the month of October 2007. The suit was one fordeclaration and consequential injunction. The plaintiff has alsoclaimed damages.15.The defendant filed their written statement in the said suiton 16 December 2007. The defendant denied the allegation made by theplaintiff with respect to issuance of groundless threat and theirplea that the product TVS Flame 125 CC has nothing to do with thepatent No.195904. Subsequently, the defendant filed the suit inC.S.No.1111/2007. Their prayer was to grant a decree of permanentinjunction restraining the defendant or anyone from infringingtheir patent 195904 and for a preliminary decree directing therespondent to render accounts of profits made by sale or offering https://hcservices.ecourts.gov.in/hcservices/ for sale/export of 125 CC Flame, by infringing their patent and topay damages for such infringement. The said suit was filed on 16December 2007.16.The plaintiff filed a detailed written statement inC.S.No.1111/2007 on 18 September 2009. In the said writtenstatement, the plaintiff disputed the contention that they haveinfringed the patent no.195904 obtained by the defendant. They havealso attempted to demonstrate that the threat made by the defendantwas groundless in nature. The issues :-17.The learned Single Judge on the basis of the respectivepleadings, framed the following issues in C.S.No.979/2007 and1111/2007. https://hcservices.ecourts.gov.in/hcservices/ C.S.No.979/2007 "1.Whether this Court has gotterritorial jurisdiction to try thissuit and whether the plaintiff has gotany cause of action as prayed for by theplaintiff and more so, whether partcause of action has arisen within thejurisdiction of this Court ? 2.Whether the defendant has issued thepress release on 01.09.2007 and03.09.2007 and whether the same wouldconstitute a threat ? And if sogroundless threat ? 3.Whether the present suit is barred bythe provisions of order 2 Rule 2 CPC inview of the earlier suit filed in BombayHigh Court in Suit No.3132/2007 ? 4.Whether the plaintiff is entitled toseek an injunction restraining thedefendant from issuing a threat ofinfringement as prayed in the prayereven after the defendant has filed thesuit for infringement beingC.S.No.1111/2007 against the plaintiffherein ? 5.Whether the suit has becomeinfructuous as claimed by the defendantin para 4.1 of the written statement ? 6.Whether the plaintiff proves thatthe plaintiff's product TVS Flame doesnot infringe the defendant's patent ? 7.Whether the plaintiff is entitled toa declaration as prayed for in prayer(a) and (b) of the plaint ? 8.Whether the suit has been properlyvalued on the ground of damages ? If so,whether the Court fee has been properlypaid ? 9.Whether the plaintiff isentitled to relief of damages ? 10.Whether the plaintiff isentitled to the reliefs claimedby them ?"C.S.No.1111/2007 "1.Whether the defendant hasinfringed the plaintiff's patentno.195904 ? 2.Whether the defendant isentitled to question the validityof the plaintiff's patentno.195904 ? 3.If the answer to (2) is inthe affirmative, whether thedefendant proves that theplaintiff's patent no.195904 isinvalid/not patenable in view ofUS Honda patent no.4534322 readwith 678/MUM/2001 and 82/MUM/2001? 4.Whether the plaintiff isentitled to permanent injunctionas prayed for ? 5.Whether the use of twinspark plugs in an enginedelimited by the bore size of 45mm to 70 mm impart inventive stepparticularly in the light ofHonda Patent 4534322 ? 6.Whether the burning oflean air fuel mixture can beregarded as an element(constructional feature) of theproduced claimed in the suitpatent? 7.Whether the plaintiff isentitled to damages as prayed foror otherwise ? 8.Whether the plaintiff isentitled to any of the reliefprayed for in the above suit ? https://hcservices.ecourts.gov.in/hcservices/

18.The core issue to be decided in these appeals relate to thequestion as to who should lead the evidence first.19.The plaintiff in their suit in C.S.No.979/2007, contendedthat the burden of proof of the defendant in the suit equals itsburden in a properly constituted suit for infringement, yet, theyhave taken upon themselves the burden of establishing that there isno infringement by them of the defendant's patent in issue. Theplaintiff has also stated that the course adopted by them to provethat there is no infringement is legally permitted as the plaintiffhas the choice of leaving it to the defendant to prove that theyhave infringed the rights of the defendant or to prove its case thatit has not infringed. Plaintiff has opted to follow the lattercourse of proving non-infringement. 20.In the plaint, it was further contended that the issue as towhether the plaintiff has infringed the defendant's patent being afact in issue in the present proceedings, they have endeavoured tomarshal all the relevant materials to establish that it has notinfringed the patent of the defendant. It was also their case thatstructure of a suit under Section 106 is that if the defendantpleaded justification for threat and also counter-claims for reliefagainst infringement, the procedure to be followed is that of anormal infringement action. It was in that factual and legalpremises, plaintiff has adopted the dubious task of proving that thethreat was groundless and that they were entitled for a declarationof non-infrintement.21.Section 105 of the Patents Act, 1970 empowers the Court tomake a declaration as to non-infringement. Before issuing adeclaration under the said provision, Court should be satisfied thatthe plaintiff has complied with the requirements (a) and (b) ofsection 105.22.Section 106 of the Patents Act, permits the Court to giverelief in case of groundless threat or infringement. The saidprovision also gives an indication that it is open to the Court togrant a declaration that threats are unjustifiable and aconsequential injunction, besides award of damages.23.The plaintiff has claimed a decree of non-infringement ofpatent and produced materials which according to them would provethat their product TVS 125 CC Flame was in no way infringing thepatent 195904 of the defendant. They have also referred to variousstatements issued by the defendant to prove that there was in fact athreat and it was a groundless threat. The claim that the productintroduced by the plaintiff has nothing to do with the patentobtained by the defendant was specifically contested by thedefendant. The defendant also denied the threat, as according tothem they were in the process of protecting their product and the so https://hcservices.ecourts.gov.in/hcservices/ called statements were all made in that limited context.The concept of "Right to begin"24.The issues raised in these appeals revolve around theinterpretation of Order 18 Rule 1 and 2 CPC. 25. Order 18 (1) of CPC deals with hearing of the suit andexamination of witnesses. The provision reads thus :- "1. Right to beginThe plaintiff has the right to begin unless thedefendant admits the facts alleged by the plaintiff andcontends that either in point of law or on some additionalfacts alleged by the defendant the plaintiff is not entitledto any part of the relief which he seeks, in which case thedefendant has the right to begin.26.The provisions of Order 18 CPC indicates the normal method ofproduction of evidence and the arguments by either parties.27.The term "right to begin" is not merely a right. It is rathera duty or legal obligation. It is so because the plaintiff has towin or lose the case on the basis of his own case and not on theweakness of the defendant's case.28.Order 18 Rule 1 CPC is concerned not only with the productionof evidence. It is a composite provision dealing with the right tobegin a case in general. This includes the production of evidence aswell as addressing the Court by oral arguments. Though Order 18 rule1 CPC provides in general about the right to begin, Rule 2 of Order18 deals with opening the case and production of evidence. Acombined reading of Rules 1 and 2 of Order 18 CPC would show thatthe person who got a right to begin must lead evidence first. As perthe statutory scheme, the plaintiff is given the right to begin thecase. This right would not give the plaintiff a further right tocompel the defendant to produce his evidence at the first instance.The question of defendant beginning the case would arise only incases wherein the defendant admits the facts alleged in the plaintand contends that either on point of law or on some additional factsalleged by him, the plaintiff is not entitled to any part of therelief which he seeks. It is only in such circumstances, thedefendant gets the right to begin. Therefore, the "right", asdefined in Rule 1 of Order 18 would not really be a "right" and isessentially a legal obligation to prove the case.29.There are exceptions to this Rule like the case relating to https://hcservices.ecourts.gov.in/hcservices/ promissory notes. In a suit on promissory notes, if the defendantadmits execution, the burden would shift to him to prove thedischarge. Section 18 of the Negotiable Instruments Act providesthat until the contrary is proved, the Court shall presume thatevery negotiable instrument or debt was made or drawn as shown inthe document. In such cases, the burden is on the opposite party tolead evidence that the negotiable instrument was made withoutconsideration. 30.Hearing of the suit and the trial of the suit are totally twodifferent concepts. Trial would commence the very moment the suit isinstituted. "Trial of the suit", therefore, is a comprehensive term.The trial would commence after the filing of suit and it would endwith the disposal of the suit. The hearing of the suit is part ofthe trial process. Hearing relates to examination of witnesses,their cross examination as well as arguments by the counsel.Therefore, hearing is a continuous process not confined to producingand recording evidence. It is therefore, essentially a compositeprocess. The right to begin as mentioned in Rule 1 of Order 18 CPChas to be treated as opening the case, production of evidencefollowed by arguments. In normal course, the plaintiff has to openthe case and he should lead evidence to begin with.31.In Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, theSupreme Court held that the burden of proving the fact rests on theparty who asserts the affirmative and not on the party who deniesit. The observation reads thus:-"8.The initial burden of proof would be on theplaintiff in view of Section 101 of the Evidence Act,which reads as under:“101. Burden of proof.—Whoever desires any court togive judgment as to any legal right or liabilitydependent on the existence of facts which he asserts,must prove that those facts exist.When a person is bound to prove the existence ofany fact, it is said that the burden of proof lies onthat person.”9.In terms of the said provision, the burden ofproving the fact rests on the party who substantiallyasserts the affirmative issues and not the party whodenies it. The said rule may not be universal in itsapplication and there may be an exception thereto. Thelearned trial court and the High Court proceeded on thebasis that the defendant was in a dominating positionand there had been a fiduciary relationship between theparties. The appellant in his written statement deniedand disputed the said averments made in the plaint. https://hcservices.ecourts.gov.in/hcservices/

10.Pleading is not evidence, far less proof. Issuesare raised on the basis of the pleadings. Thedefendant-appellant having not admitted or acknowledgedthe fiduciary relationship between the parties,indisputably, the relationship between the partiesitself would be an issue. The suit will fail if boththe parties do not adduce any evidence, in view ofSection 102 of the Evidence Act. Thus, ordinarily, theburden of proof would be on the party who asserts theaffirmative of the issue and it rests, after evidenceis gone into, upon the party against whom, at the timethe question arises, judgment would be given, if nofurther evidence were to be adduced by either side.11.The fact that the defendant was in a dominantposition must, thus, be proved by the plaintiff at thefirst instance."32. Burden of proof vis-a-vis onus of proof :-Burden of proof generally lies on a party who asserts aparticular fact. In other words, it would be on a party whose suitwould fail, if no evidence was let in. Onus of proof by a partywould cease the moment opposite party admits the transaction. Burdenof proof on the pleadings of a party, never shifts to the otherparty. The initial burden of proving a particular fact is always onthe party who asserts it. When he produces evidence in support ofhis statement, onus would shift on the opposite party to adducerebutting evidence to meet the case made out by the other party. Incivil cases, onus of proof is never fixed permanently, but it wouldfluctuate very frequently. 33.In A. Raghavamma Vs. A.Chenchamma, 1964 (2) SCR 933, theSupreme Court indicated the distinction between "burden of proof"and the "onus of proof" :-12. ... There is an essential distinction betweenburden of proof and onus of proof: burden of prooflies upon the person who has to prove a fact and itnever shifts, but the onus of proof shifts. The burdenof proof in the present case undoubtedly lies upon theplaintiff to establish the factum of adoption and thatof partition. The said circumstances do not alter theincidence of the burden of proof. Such considerations,having regard to the circumstances of a particularcase, may shift the onus of proof. Such a shifting ofonus is a continuous process in the evaluation ofevidence. 34.There is nothing in the Patents Act to indicate that in casea suit for declaration of non-infringement was filed, the burden is https://hcservices.ecourts.gov.in/hcservices/ on the defendant to lead evidence to show that there wasinfringement. Therefore, primarily, it is the responsibility of theplaintiff to produce evidence in support of his case.35.In Anil Rishi's case cited supra, the Supreme Court observedthat the right to begin follows onus probandi. The relevantparagraph reads thus :-There is another aspect of the matter which shouldbe borne in mind. A distinction exists between burdenof proof and onus of proof. The right to begin followsonus probandi. It assumes importance in the earlystage of a case. The question of onus of proof hasgreater force, where the question is, which party isto begin. Burden of proof is used in three ways: (i)to indicate the duty of bringing forward evidence insupport of a proposition at the beginning or later;(ii) to make that of establishing a proposition asagainst all counter-evidence; and (iii) anindiscriminate use in which it may mean either or bothof the others. The elementary rule in Section 101 isinflexible. In terms of Section 102 the initial onusis always on the plaintiff and if he discharges thatonus and makes out a case which entitles him to arelief, the onus shifts to the defendant to provethose circumstances, if any, which would disentitlethe plaintiff to the same.36.When there are two suits and the claims in both the suits areinextricably inter linked, the Trial Court would be justified inordering a joint trial. In case joint trail is ordered, it would beopen to the Trial Court to pass a discretionary order as to the suitin which evidence should be taken first. The normal practice is toopen the case by the plaintiff.37.In State Bank of India v. Ranjan Chemicals Ltd.,(2007) 1 SCC97, the Supreme Court indicated the circumstances wherein a jointtrial could be ordered :-10.A joint trial can be ordered by the courtif it appears to it that some common question oflaw or fact arises in both proceedings or thatthe right to relief claimed in them are inrespect of or arise out of the same transactionor series of transactions or that for some otherreason it is desirable to make an order forjoint trial. Where the plaintiff in one actionis the same person as the defendant in anotheraction, if one action can be ordered to stand as https://hcservices.ecourts.gov.in/hcservices/ a counterclaim in the consolidated action, ajoint trial can be ordered. An order for jointtrial is considered to be useful in that, itwill save the expenses of two attendances by thecounsel and witnesses and the trial Judge willbe enabled to try the two actions at the sametime and take common evidence in respect of boththe claims. If therefore the claim made by theCompany can be tried as a counterclaim by theDebt Recovery Tribunal, the court can orderjoint trial on the basis of the aboveconsiderations. It does not appear to benecessary that all the questions or issues thatarise should be common to both actions before ajoint trial can be ordered. It will besufficient if some of the issues are common andsome of the evidence to be let in is alsocommon, especially when the two actions ariseout of the same transaction or series oftransactions.11. A joint trial is ordered when a courtfinds that the ordering of such a trial, wouldavoid separate overlapping evidence being takenin the two causes put in suit and it will bemore convenient to try them together in theinterests of the parties and in the interests ofan effective trial of the causes. This powerinheres in the court as an inherent power."38.The issues framed by the Trial Court also gives an idea as onwhom the burden of proof lies. Issue nos.1 and 3 in C.S.No.979/2007had to be proved by the plaintiff. Defendant has taken up apreliminary objection that the plaintiff has already filed a suitbefore the Bombay High Court with respect to the very same issue andas such, it was not open to them to file another suit on the basisof the very same cause of action before this Court.39.In paragraph 58 of the plaint, the plaintiff has stated thatby its statement the defendant has threatened them and also defamedthe plaintiff and the TVS group and as such, they are entitled tocompensation from the defendant for the damages caused by theirgroundless threats. It was further stated that the plaintiff hasbeen exposed to two kinds of damages, namely damages to itsreputation and also the reputation of TVS Group and damage to itsnew product TVS Flame and its launch programme. The plaintiff hasalso stated that along with their holding Company, M/s.SundaramClayton Ltd. they have filed a suit before the High Court of Bombayfor the damage caused to the reputation of TVS Group and to theplaintiff as a corporate by the libelous and defamatory allegations. https://hcservices.ecourts.gov.in/hcservices/

40.The institution of the earlier suit before the Bombay HighCourt on the basis of the very same cause of action made thedefendant to take up a contention that the subsequent suit wasbarred under Order 2 Rule 2 CPC.41.The specific contention taken by the defendant about themaintainability of the subsequent suit made the learned Judge toframe the following issue :-3.Whether the present suit is barred by the provisionsof order 2 Rule 2 CPC in view of the earlier suit filed inBombay High Court in Suit No.3132/2007 ?42.Order 2 Rule 2 rest on the principle that the opposite partyshould not be vexed twice on the basis of a single cause of action.Sub Rule (1) of Order 2 provides that every suit shall include thewhole of the claim in respect of the particular cause of action.Rule 2(2) deals with relinquishment of part of claim. Similarly, subRule (3) of Rule 2 contains a legal bar to institute a second suiton the basis of the very same cause of action without the leave ofthe Court. The usual test for ascertaining as to whether the latersuit is maintainable on account of the earlier suit is to find outthe cause of action in both the suits and in case the bunch of factsconstituting the cause of action were the same in both the suits,the subsequent suit has to be axed at the threshold. 43.Since the plaintiff has admitted the earlier suit, it wastheir duty to establish that the first suit was on the basis of adifferent cause of action and as such, there was no legal bar infiling a second suit. This issue goes to the root of the matter andas such, the burden is on the plaintiff to provide materials tosubstantiate their contention that the cause of action for filing asecond suit was altogether different. In spite of such burden ofproof on the plaintiff to sustain the very suit, the learned SingleJudge has shifted the burden and called upon the defendant to beginthe case. Instead of directing the plaintiff to produce positiveevidence to decree their suit, the learned Judge has directed thedefendant to prove the negative. This really caused prejudice to thedefendant.44.The other issues framed in the suit in C.S.No.979/2007 alsogives an indication that the burden of proof is heavily on theplaintiff. In fact, the plaint contains a statement that theplaintiff has taken up the task of proving their contention thatthere was no infringement of the patent obtained by the defendant.Therefore, in a suit of this nature, the responsibility is heavy onthe plaintiff to prove the plaint averments. The plaintiff has alsoindicated that they have got all the materials to prove their https://hcservices.ecourts.gov.in/hcservices/ contentions. The suit in C.S.No.979/2007 was prior in point of timealso. Incidentally, it is to be mentioned that in case the defendanthas not filed the subsequent suit in C.S.No.1111/2007, plaintiff wasbound to prove their case and there was no necessity to decide thepreliminary point as to who should begin first.45.The learned Senior Counsel for the plaintiff contended thatthe decision of the trial Judge was only to take up the subsequentsuit first and it will be followed by recording the evidence of theplaintiff in C.S.No.979/2007.46.We have summoned the order sheet maintained by the learnedSingle Judge. There is nothing indicated in the Court records eitherto show that joint trial was ordered or a decision was taken by thelearned Single Judge to take up the suit in C.S.No.1111/2007 at thefirst instance. In fact, the learned Single Judge initially observedthat the normal procedure is that the plaintiff should begin firstand the first suit should be taken up at the first instance. Aftersaying so, there was no further indication in the order about thespecial circumstances found in the subject case to justify thedeparture from the normal rule so as to direct the defendant tobegin the case. It is true that the learned Single Judge has statedthat the claim made in the two suits are inter-linked. However, thefact remains that the defendant was armed with a patent and it wasonly the plaintiff who made a prayer for declaration of non-infringement.47.When the plaintiff seeks a decree of non-infringement, thequestion of burden of proof comes into play. The moot question insuch a case is as to who would fail in case no evidence is let in.The plaintiff has taken up the task of proving their contention thattheir TVS 125 CC Flame does not infringe the patent obtained by thedefendant. Plaintiff has no case that the defendant was guilty ofinfringement of their patent. 48.The right to begin as provided under Or.18 R.1 CPC has to beconsidered in the light of Section 101 and 103 of Patent Act.49.The suit filed by the defendant in C.S.No.1111/2007 was inthe nature of a counter claim. In fact, even according to theplaintiff, in case the defendant institutes a suit later, it wouldonly be a suit with a counter claim.50.The plaintiff was consistent in their case that their producthas nothing to do with the patent obtained by the defendant. This https://hcservices.ecourts.gov.in/hcservices/ only made them to incorporate the term "for declaration" in terms ofSection 105 of the Patents Act. By directing the defendant to beginfirst, the learned Single Judge has virtually directed the defendantto prove that the product launched by the plaintiff does infringetheir patent no.195904.Maintainability of Appeal :-51.The plaintiff has raised a preliminary objection with respectto the maintainability of the appeal. According to the plaintiff,the order impugned in the appeal was not in the nature of a judgmentand as such, the defendant was not entitled to file an appeal underClause 15 of the Letters Patent.52.The general principle is that the plaintiff should win orlose his case on the basis of the case set up by him. The defendantgot a right to insist that he should not be compelled to disclosehis evidence first as otherwise the plaintiff would tune his caseaccordingly. Therefore, the defendant was right in insisting thatthe plaintiff should prove his case first before calling upon him toadduce evidence. When there is a deviation from the normal rule,naturally, it would result in injustice. Such injustice would give acause of action to file an appeal. 53.The other question is as to whether the grievance could becorrected at a later point of time in the same proceedings or in therelated appeal.54.The issue as to who should begin first and the decision givenone way or the other, cannot be corrected at a later point of time.The prejudice caused to a party cannot be corrected even in appealotherwise than by a direction to record fresh evidence. Thedefendant has not come to the Court at the first instance. It wasonly the plaintiff who originally filed the suit at Bombay andlater, before this Court. The fact that the defendant has also fileda suit at a later point of time would not absolve the plaintiff fromtheir legal obligation to adduce evidence in support of their caseby opening their case at the first instance. Since the defendant hasgot a reasonable right to expect that he would be asked to disclosehis evidence, only after opening the case by the plaintiff, anyorder which would change normal course would give a cause of actionto the defendant to file an appeal invoking Clause 15 of the LettersPatent.55.In Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8,the Supreme Court considered the circumstances wherein an appeal https://hcservices.ecourts.gov.in/hcservices/ under Clause 15 of the Letters Patent could be filed. Theobservation reads thus :-"115.Thus, in other words every interlocutoryorder cannot be regarded as a judgment but onlythose orders would be judgments which decidematters of moment or affect vital and valuablerights of the parties and which work seriousinjustice to the party concerned. Similarly,orders passed by the trial Judge decidingquestion of admissibility or relevancy of adocument also cannot be treated as judgmentsbecause the grievance on this score can becorrected by the appellate court in appealagainst the final judgment.(emphasis supplied).56.Therefore, we are of the considered view that any orderpassed by the trial Judge which would affect the valuable rights ofthe parties or which would result in causing substantial prejudiceor injustice to a party and which cannot be corrected at a laterpoint of time in the original proceeding or in appeal against thefinal judgment and decree should be construed as a judgment withinthe meaning of Clause 15 of the Letters Patent, thereby enabling theaggrieved party to file an appeal.57.The suit filed by the plaintiff was not one for injunctionalone. It was a comprehensive suit for declaration and that too fora decree of non-infringement. The plaintiff has also claimed damagesagainst the defendant. Since the plaintiff has sought the relief ofnon-infringement, naturally, they were required to lead theirevidence first.58.The primary burden was on the plaintiff to prove their case.It is true that the defendant has subsequently filed a suit prayingfor a decree of injunction based on their patent. When the plaintiffhas taken a substantial contention that their new product hasnothing to do with the patent obtained by the defendant, it was forthe plaintiff to produce materials so as to enable the Court togrant a decree in their favour. The fact that the defendant hasfiled a subsequent suit would not absolve the plaintiff from provingtheir plaint averments. In fact, the learned Judge has stated thatthe very issue relates to infringement. It was only the plaintiffwho has come to the Court at the first instance with an action thatthe threat originated from the defendant, was a groundless threat,and that their product has nothing to do with the patent obtained bythe defendant. Therefore, the plaintiff should have been directed tolead evidence at the first instance. In case the defendant wants toget a decree as prayed for in C.S.No.1111/2007 they have to showthat the vehicle manufactured by the plaintiff under the brand name https://hcservices.ecourts.gov.in/hcservices/ TVS Flame was an infringement of their patent. Therefore, the burdenlies on both the parties to prove their respective contentions.However, we are concerned only with the limited issue as to whoshould begin first. Since the suit filed by the plaintiff was a suitfor declaration, consequential injunction and damages and in theabsence of an order for joint trial, the learned Single Judge shouldhave directed the plaintiff to lead evidence at the first instance.The direction to the defendant to begin was therefore, contrary tothe scheme of civil jurisprudence. Hence, we are constrained to setaside the order passed by the learned Single Judge.Disposition :-59.In the result, these appeals are allowed and the common fairand decretal order dated 10 March 2010 in C.S.Nos.979/1997 and1111/2007 are set aside. The plaintiff is directed to produce theirevidence at the first instance. No costs.60.The learned Judge is requested to decide the suit on meritsand as per law, uninfluenced by the observations made in thisjudgment, as those observations were made only for deciding thelimited issue as to who should begin first.Sd/Asst.Registrar/true copy/Sub Asst.Registrar tarToThe Sub Assistant Registrar,Original Side, High Court, Madras.+2ccs to Mr.A.A.Mohan, Advocate Sr 73089+2ccs to Mr.T.K.Bhaskar, Advocate Sr 72896TS(CO)km/26.10.O.S.A. Nos.132&133/2010