Right to begin: Madras HC on Bajaj-TVS case

TVS filed a suit against Bajaj under the Patents Act (sections 105 and 106) seeking a declaration of non-infringement, groundless threats, and compensation. Soon after, Bajaj filed an infringement suit against TVS.

After pleadings in both suits finished, and issues were framed, the first and most critical issue came up in trial: “Who should let in evidence first”?

The Single Judge trying the suits concluded that “infringement being the central theme in both the suits and even though the first suit proceeds on the validity of patent, to arrive at a proper decision, defendant [Bajaj] has to start with letting in of the evidence.” Aggrieved by this, Bajaj filed appeals in connection with which the order I discuss today was passed.

Burden vs Onus

This order hinges on the fundamentals of civil procedure. Is the “right to begin” (Rule 1 & 2, Order XVIII, Civil Procedure Code) really a right or a legal obligation of the plaintiff to produce evidence first? For those of you, who like myself, have had some years pass since law school, I summarise from the order the classic difference between burden of proof and onus of proof:

• Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts.
• Burden of proof would be on a party whose suit would fail if no evidence was let in.
• Burden of proof on the pleadings of a party never shifts to the other party.
• Onus of proof by a party would cease the moment opposite party admits the transaction.
• When he produces evidence in support of his statement, onus would shift on the opposite party to adduce rebutting evidence to meet the case made out by the other party.
• In civil cases, onus of proof is never fixed permanently, but it would fluctuate very frequently.

Right to Begin in patent law and trials

In context of this case, the court made key observations, which are in brief below:

1. Nothing in the Patents Act indicates that in case a suit for declaration of non-infringement was filed, the burden is on the defendant to lead evidence to show that there was infringement. Thus, it is the plaintiff’s responsibility to produce evidence in support of his case.

2. TVS had first filed a suit against Bajaj in the Bombay High Court, and then followed with a suit in the Madras High Court. Bajaj contended that the causes of action in the two suits were the same, and this – the Madras suit – being filed later in time, could not hold. Here, too, the court held that since TVS had admitted to filing the earlier Bombay suit, it was their duty to establish that the cause of action in Madras was different, and the suit was good in law. Asking Bajaj to let in evidence first was prejudicial, and needed to be remedied.

3. When there are two suits with inextricably inter-linked claims, a joint trial is justified. If a joint trial were ordered, the trial court has the discretion to order which suit evidence should be led first. The normal practice is to open the case by the plaintiff.

4. As it turns out, the original order of the trial court did not suggest that the two suits be joined, or that the infringement suit be taken up before the declaration of non-infringement suit. On the contrary, the trial judge appears to have observed that in normal procedure, the plaintiff should begin first, and that the first suit should be taken up first. However, “[a]fter saying so, there was no further indication in the order about the special circumstances found in the subject case to justify the departure from the normal rule so as to direct [Bajaj] to begin the case.“

The upshot was the Division Bench setting aside the trial court order, and directing TVS – the plaintiff in the original suit for declaration of non-infringement – to “begin”, i.e., produce evidence first. Next steps shall be watched closely, and duly reported here!