IBRAHIM Vs. KUNHIKRISHNAN NAIR
HIGH COURT OF KERALA
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(1.) The revision petitioner is the third defendant in O. S.57/64 on the file of the Subordinate Judge's Court. Kasaragod. The said suit is one filed by the respondent herein for a permanent injunction restraining the defendants from trespassing into the plaint properties on the allegation that the suit property belongs to the plaintiff ana is in his possession and that the third defendant in collusion with the other defendants was attempting to trespass into the said property and disturb the plaintiff's peaceful enjoyment thereof. The third defendant who is the main contesting defendant, filed a written-statement contending that he is in actual possession of the suit properties and is residing in the thatched house situated therein, that the 4th defendant had a valid leasehold right under the plaintiff and this right has become vested in the third defendant by virtue of an assignment executed in his favour by the 4th defendant, that the plaintiff's allegation that he is in possession of the properties is false and the property being in his (third defendant's) actual possession and enjoyment in leasehold right the plaintiff is not entitled to the relief of injunction prayed for by him.
(2.) When the suit came up for trial before the lower court on the 3rd October 1966, the plaintiff represented to the court that he was resting mainly on the documents filed by him and had only rebutting oral evidence and that therefore, the defendant should be directed to let his evidence first. The learned Subordinate Judge by his order passed on the same date, directed the defendant to produce his evidence first obviously reserving the right in the plaintiff to adduce his evidence by way of answer after the defendant closes his evidence in the case. The third defendant has filed this revision challenging the validity of the aforesaid order passed by the learned Subordinate Judge.
(3.) Under O.18 R.1 and 2 CPC. the normal rule is that the plaintiff who has right to begin the case should first state his case and produce his evidence in support of the issues which he is bound to prove. If however, the defendant admits the facts alleged by the plaintiff and contends only that either on some point of law or on the basis of additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in such a case, the defendant has the right to begin and it is his duty to produce his evidence in support of such defence which he is bound to prove.;
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