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(g)The plaintiff endeavored to establish beyond all doubts that the defendant has threatened them with infringement of its patent. The plaintiff was therefore, justified by submitting relevant materials to show that they have not infringed the patent of the defendant in question.

(h)Accordingly, the plaintiff prayed for a decree of declaration of non-infringement, groundless threat and consequential injunction, besides payment of compensation.

6.The suit in O.S.No.979/2007 was resisted by the defendant by filing detailed written statement. The material contentions as found in the written statement reads thus :-

"1.Whether this Court has got territorial jurisdiction to try this suit and whether the plaintiff has got any cause of action as prayed for by the plaintiff and more so, whether part cause of action has arisen within the jurisdiction of this Court ?

2.Whether the defendant has issued the press release on 01.09.2007 and 03.09.2007 and whether the same would constitute a threat ? And if so groundless threat ?

3.Whether the present suit is barred by the provisions of order 2 Rule 2 CPC in view of the earlier suit filed in Bombay High Court in Suit No.3132/2007 ?

23.The plaintiff has claimed a decree of non-infringement of patent and produced materials which according to them would prove that their product TVS 125 CC Flame was in no way infringing the patent 195904 of the defendant. They have also referred to various statements issued by the defendant to prove that there was in fact a threat and it was a groundless threat. The claim that the product introduced by the plaintiff has nothing to do with the patent obtained by the defendant was specifically contested by the defendant. The defendant also denied the threat, as according to them they were in the process of protecting their product and the so called statements were all made in that limited context.

57.The suit filed by the plaintiff was not one for injunction alone. It was a comprehensive suit for declaration and that too for a decree of non-infringement. The plaintiff has also claimed damages against the defendant. Since the plaintiff has sought the relief of non-infringement, naturally, they were required to lead their evidence first.

58.The primary burden was on the plaintiff to prove their case. It is true that the defendant has subsequently filed a suit praying for a decree of injunction based on their patent. When the plaintiff has taken a substantial contention that their new product has nothing to do with the patent obtained by the defendant, it was for the plaintiff to produce materials so as to enable the Court to grant a decree in their favour. The fact that the defendant has filed a subsequent suit would not absolve the plaintiff from proving their plaint averments. In fact, the learned Judge has stated that the very issue relates to infringement. It was only the plaintiff who has come to the Court at the first instance with an action that the threat originated from the defendant, was a groundless threat, and that their product has nothing to do with the patent obtained by the defendant. Therefore, the plaintiff should have been directed to lead evidence at the first instance. In case the defendant wants to get a decree as prayed for in C.S.No.1111/2007 they have to show that the vehicle manufactured by the plaintiff under the brand name TVS Flame was an infringement of their patent. Therefore, the burden lies on both the parties to prove their respective contentions. However, we are concerned only with the limited issue as to who should begin first. Since the suit filed by the plaintiff was a suit for declaration, consequential injunction and damages and in the absence of an order for joint trial, the learned Single Judge should have directed the plaintiff to lead evidence at the first instance. The direction to the defendant to begin was therefore, contrary to the scheme of civil jurisprudence. Hence, we are constrained to set aside the order passed by the learned Single Judge.