IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.63 of 2007 KRISHNA CHANDRA DAS & ANR Versus THE INDIAN HUME PIPE CO.LTD.&O ----------- 02 02.05.2008 Heard learned counsel for the plaintiffs- petitioners who are challenging order dated 27.11.2006 by which learned Subordinate Judge, I, Munger, rejected his petition filed in Money Suit no.14 of 1981 for directing the defendants to lead their evidence first. The aforesaid suit was filed by the petitioners for a money decree against the defendants-opposite parties for the loss caused to or suffered by the plaintiffs due to act of omission and commission of the defendants and for interest pendente lite and future at the Bank rate and other ancillary reliefs. Learned counsel for the petitioners submits that thereafter the defendants appeared and file their written statement in which mainly two objections were raised that the suit was barred by law of limitation and secondly that the court lacked jurisdiction as the entire amount had been refunded by the defendants on different dates to the plaintiffs. Learned counsel for the petitioners further submits that since the other claims of the plaintiffs were admitted and the defendants had stated that they had refunded the amount, hence it was incumbent upon the defendants to produce evidence first and for the said purpose they filed a petition in the court below on 13.07.1998 under the provision of Order XVIII Rule 1 of the Code of Civil Procedure. The learned court below after considering the matter came - 2 - to the conclusion that no part of the case of the plaintiffs has been admitted by the defendants as the plaintiffs had claimed a concluded contract with the defendants and had asserted payment of the amount to defendant no.1 and hence burden of proof lies on the plaintiffs. It was further held by the learned court below in the impugned order that in the instant case, the plaintiffs have come to court for a money decree against the defendants on the basis of contract and if no evidence is given on that point, the plaintiffs’ suit will fail. Hence, the plaintiffs are bound to prove those facts under the provision of Section 104 of the Evidence Act and unless the plaintiffs lead evidence to prove the aforesaid facts, there is no occasion for the defendants to lead evidence in rebuttal of the plaintiffs’ case. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly this civil revision is dismissed and the plaintiffs are directed to lead their evidence first. However, the plaintiffs-petitioners will be at liberty to move the learned court below for further evidence in rebuttal to the claim of the defendants with regard to repayment of the amount to the plaintiffs after evidence of the plaintiffs and defendants are closed and the learned court below will decide the said matter thereafter in accordance with law considering the relevant facts and circumstances. sunil ( S.N.Hussain,J.)