JUDGMENT : Heard learned Advocate Mr. Pratik Jasani on behalf of the applicant and learned Advocate Mr. Vimal Patel on behalf of learned Advocate Mr. Suren B. Patel for the respondent. 2. By way of this application, the applicant challenges an order dated 16.1.2018 passed by the learned Principal Senior Civil Judge, Gondal under Exh. 47 in Special Civil Suit No. 44 of 2008 whereby the application preferred by the present applicant- original plaintiff for a direction to the defendant to lead evidence, instead of the plaintiff has been rejected. 2.1 The facts shorn of unnecessary details, are stated hereinbelow. It appears that the present applicant being the original plaintiff, had filed Special Civil Suit No. 44 of 2008 before the learned Civil Court at Gondal interalia praying for a declaration that the plaintiff and the defendant were partners of a firm named M/s Parth Aluminium Company. It was also prayed for a declaration that the machinery purchased by the firm in question was of the joint ownership of the plaintiff and the defendant. Further prayers seeking books of accounts etc of the firm were also sought for. It appears that after the defendant had appeared and contested the suit, vide order under exh. 38 dated 30.9.2015, the learned Civil Court had framed the issues. It appears that, approximately after around more than two years of the issues being framed the original plaintiff, had moved an application exh. 47 purportedly under the provisions of Order 18 Rule 1 and 3 interalia requesting the learned Civil Court to direct the defendant to lead evidence first as against the normal requirement of the plaintiff leading the evidence first. The said application had been contested by the original defendant- respondent herein and whereas vide the impugned order dated 16.1.2018, the learned Principal Senior Civil Judge, Gondal had rejected the said application with cost of Rs 1000/- . The applicant being aggrieved by the said order has approached this Court by way of the said application. 3. Learned Advocate Mr. The said application had been contested by the original defendant- respondent herein and whereas vide the impugned order dated 16.1.2018, the learned Principal Senior Civil Judge, Gondal had rejected the said application with cost of Rs 1000/- . The applicant being aggrieved by the said order has approached this Court by way of the said application. 3. Learned Advocate Mr. Jasani on behalf of the applicant would submit that while the plaintiff had interalia prayed for a declaration, more particularly to be declared as a partner of the partnership firm, at the time of framing the issues, the learned Trial Court had framed issues No. 4 and 5, which interalia required the defendant to prove that the plaintiff after taking some amount had withdrawn from the partnership and to prove that the partnership firm named M/s Parth aluminum was dissolved. Learned Advocate would submit that reading issues no. 1, 2 and 3 i.e which are required to be proved by the plaintiff and issues no. 4 and 5 which have been referred to hereinabove which are required to be proved by the defendant, makes it abundantly clear that in case the respondent were directed to lead evidence at the first instance and if the defendant were to prove the said issues no. 4 and 5 then the case of the plaintiff would be over and there would be nothing left for the plaintiff to prove. It was according to learned Advocate Mr. Jasani on account of such peculiar facts that the present applicant had moved an application Exh. 47. Learned Advocate Mr. Jasani would also draw the attention of this Court to certain factual errors in the order passed by the learned Trial Court, which according to learned Advocate Mr. Jasani, has the propensity of vitiating the entire order. According to learned Advocate Mr. Jasani, while the learned Trial Court had interalia observed that the defendants are not admitting that the plaintiff was a partner of the firm, was not a correct finding more particularly since the case of the defendant all along had been that the partnership firm existed and had later on been dissolved. Learned Advocate would further submit that having regard to such a factually incorrect finding by the learned Trial Court, this Court may interfere in the impugned order. 4. Learned Advocate Mr. Learned Advocate would further submit that having regard to such a factually incorrect finding by the learned Trial Court, this Court may interfere in the impugned order. 4. Learned Advocate Mr. Jasani, would thereafter rely upon Order 18 Rule 1 of the Civil Procedure Code. Learned Advocate would submit that Order 18 Rule 1 interalia permits the defendant to begin and whereas in the instant case in view of the fact that in case the defendant were to be able to prove his case then the present applicant original plaintiff would not be required to do anything further, therefore the present applicant had moved the application under Exh. 47. Learned Advocate Mr. Jasani would also rely upon the decision of the Orissa High Court at Cuttack more particularly in the case of Shradhamani Panda Vs Chintamani Panda reported on 2018 SCC online Ori 420 and would submit that the learned Orissa High Court, has interalia taken the view that the learned Trial Court could have directed the defendant to lead evidence and whereas nonpassing of such an order has prejudiced the important right of the present applicant original plaintiff. Under such circumstances it is requested by learned Advocate Mr. Jasani to set aside the impugned order and to further direct the learned Principal Senior Civil Judge, to direct the defendant to lead his evidence first. 5. This application is vehemently objected to by learned Advocate Mr. Vimal Patel for learned Advocate Mr. Suren Patel for the respondent. Learned Advocate Mr. Patel at the outset would refer to Order 18 Rule 1 and would submit that while Order 18 Rule 1 interalia empowers the defendant to seek right to begin, the said provision does not envisage that the plaintiff could request the Court to direct the defendant to begin first. Learned Advocate would submit that this being the position, the learned Civil Judge would not have been faulted in coming to the conclusion as found in the impugned order. Learned Advocate Mr. Patel would rely upon the decision of this Court in case of Amrutlal Raragi Vs. Jayaben Haribhai reported in 2008 (o) GLHEL HC 220410, as well as the observation of the High Court of Bombay in the case of Metafield Coil Pvt. Ltd Vs Nikvik Tube Industries reported in 2012 (2) Civil LJ 719 dated 22.9.2022. Learned Advocate Mr. Patel would rely upon the decision of this Court in case of Amrutlal Raragi Vs. Jayaben Haribhai reported in 2008 (o) GLHEL HC 220410, as well as the observation of the High Court of Bombay in the case of Metafield Coil Pvt. Ltd Vs Nikvik Tube Industries reported in 2012 (2) Civil LJ 719 dated 22.9.2022. Learned Advocate would also refer to a decision of the learned Bombay High Court in case of Haran Bidi Suppliers and Ors Vs V.M. and Co. reported in 2001 4 CCC 415 more particularly in Civil Revision Application No. 351 of 1996. Having regard to the observations made by this Court as well as the Hon’ble Bombay High Court, learned Advocate Mr. Patel would request this Court to reject the present application with cost. 6. Heard learned Advocates for the respective parties who have not stated anything further. At the outset before discussing on the merits of the issue, since the present application concerns an interpretation of Order 18 Rule 1, the said provisions is quoted hereinbelow for benefit : “Right to begin : The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.” 7. Having reproduced the provision of law, this Court will now proceed to examine the factual submissions made by respective parties. This Court has perused the plaint as well as the issues which have been framed by the learned Trial Court. In the considered opinion of this Court, the defendant, while he appears to have interalia admitted about the present applicant being part of the partnership firm, and further according to the defendant, the said partnership firm has been dissolved. As against the same it is the original contention of the plaintiff that he had given a substantial amount of money for purchase of the machinery and whereas the defendant and some of his relatives have usurped the property of the partnership firm. Having regard to the same, in the considered opinion of this Court, it does not appear that the issues no. Having regard to the same, in the considered opinion of this Court, it does not appear that the issues no. 4 and 5, as which are required to be proved by the defendant, are stand alone issues. It appears that the said issues were required to be framed more particularly on account of the allegations being made by the present applicant in the suit. It also appears to this Court that the question of deciding the issues no. 4 and 5, may arise only upon the present applicant having proved his case. In the considered opinion of this Court, without the plaintiff proving his case, unless there is some specific admission by the defendant, on any aspect of the suit, in normal circumstances, the onus can never shift upon the defendant. 8 Further more in so far as Order 18 Rule 1 is concerned, in the considered opinion of this Court, the said provision, enables the Court to direct the defendant to begin but at the same time, in the considered opinion of this Court, the entire provision, starts with recognising the right of the plaintiff to begin and whereas the burden would be shifting upon the defendant, only upon a specific admission by the defendant on any of the issues contested by the plaintiff and whereas the said provision carves out an exception to the normal rule and has interalia laid down that in certain circumstances the defendant has the right to begin. In the considered opinion of this Court apart from the fact that there does not seem to be any admission on the part of the present defendant, which would go to the root of the issue, it further appears upon a plain reading of Order 18 Rule 1 that only upon the defendant himself, asking the Court to permit him to begin, would the right reserved in favour of the defendant as recognised in Order 18 Rule 1, come into play. 8.1 It also does not appear that the said rule in any way permits the plaintiff to request the Court to direct the defendant to begin, more particularly the same in the considered opinion of this Court going against the primary rule of evidence that is a person who desires any Court to give a judgment as to any legal right or liability which are dependent upon the existence of facts which he requests must prove that such facts exists. In other words the burden of proof as to existence of a particular fact is on the person who wishes that the Court should believe its existence. The onus would shift upon the defendants only after the applicant was discharged the said burden. 9. In so far as the decisions relied upon by the learned Advocates for the respective parties, in the considered opinion of this Court in so far as the decisions of the High Court of Orissa in the case of Shraddhamani Panda (supra), it appears that the learned Court, did not lay down any principle of law. Furthermore in any case it appears that since there is a decision of this Court, on the issue in question and since a decision of a different High Court would have a persuasive value and a decision of this Court would be binding, therefore, in the considered opinion of this Court, the decision of the High Court of Orissa relied upon by the applicant plaintiff, would not in any manner further the cause of the applicant. 10. In so far as the decision in case of Amrutlal Raragi Vs. Jayaben Haribhai (supra) relied upon by the learned Advocate Mr. Patel on behalf of the opponent defendant, in the considered opinion of this Court the said decision is squarely applicable to the issue on hand. Learned Co-ordinate Bench (Hone’ble Mr. M.R Shah, J. as he then was) has inter-alia, relying upon the decision of the High Court of Bombay has observed that Order 18 Rule 1 is only enabling provision entitling defendant the right to begin and whereas the said provisions cannot be said to be interpreted to mean that it would be competent for the Court to direct the defendant to enter the witness box before the plaintiff and lead evidence in support of the case propounded by the defendant. It appears that this court has relied upon the decision of the High Court of Bombay in case of Haran Bidi Suppliers and whereas the proposition of law laid down by the High Court of Bombay, being relevant for the present purpose, is reproduced herein for benefit” “On the plain language of the said provision, it would appear that it is only an enabling provision, entitling the defendant of right to begin. In my view, this provision cannot be interpreted to mean that the Court would be competent to direct the defendant to enter the witness-box before the plaintiff and lead evidence in support of its case. In the circumstances, the impugned order passed by the trial Court cannot be sustained in law.” 11. It also appears that in a later decision, in case of Zainabee and Ors. Vs Shivkumar and Ors in the writ Petitioner No. 781 of 2003 and Civil Application No. 7105 of 2104 in WP/781 of 2003 dated 15.9.2017, in the High Court of Bombay, had also once again considered and discussed the issue and whereas the High Court, at paras 20 to 22 has observed as under : “21. This Court, in Dattatray Namdeo Patil vs. Ram Namdeo Patil and others, 2010(3) Mh.L.J. 801 , dealt with a similar issue and concluded in paragraphs 3 and 4 that Rules 1 and 2 of Order 18 of the Code of Civil Procedure would entitle the Defendant, who admits the fact, to begin the recording of his evidence first. It is an enabling provision. If the Defendant applies and makes a request or claims such a right, the Court may pass an order permitting the Defendant to step into the witness box first. 22 In Metafield Coil Private Limited vs. Nikivik Tube Industries Private Limited, 2012 (1) Mh.L.J. 289 , while considering such an issue under Order 18 Rule 1, this Court concluded that a consistent view taken by the courts is that a direction against the Defendant to lead evidence before the Plaintiff leads his evidence, cannot be issued under Order 18 Rule 1. The scheme of law appears to be that of a normal rule and it would be a privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the rule. The scheme of law appears to be that of a normal rule and it would be a privilege of the Plaintiff to lead his evidence first. However, it enables the Defendant to exercise the right in the contingency mentioned in the rule. After the Plaintiff exercises his option to lead evidence first, it is for the Defendant to decide whether, he would like to lead evidence and make such a formal request to the Court. If the Court permits the Defendant to lead evidence first, the Plaintiff can always lead evidence in rebuttal. The Court does not have the power to issue a direction to the Defendant so as to compel him to step into the witness box first and lead evidence. 12. Having regard to the law laid down by this Court and having regard to the observations of the High Court of Bombay in the considered opinion of this Court while Order 18 Rule 1 empowers the defendant to seek to lead evidence first under certain circumstances and whereas the said provision, does not in any manner empower the plaintiff to move an application for directing the defendant to lead evidence first nor would it be competent for a Court to grant such a request by the plaintiff. Again as clearly made out from the said provision of law it would appear that the aspect of the defendant having the right to begin, would only come into play, upon the defendant admitting facts alleged by the plaintiff and the defendant seeking to make good either a point of law or some additional facts alleged by him. A plain reading of the said provision as discussed by this Court in Amrutlal Raragi (supra) makes it abundantly clear that the entire onus of the said provision is of the defendant, more particularly the defendant if he desires to avail the right to begin then he has to at the first instance clarify that he has admitted any of the facts alleged by the plaintiff and whereas he would intend to make some submissions of legal aspect or factual aspect, which would help the Court in deciding the issue. Such not being the facts of the instant case, this Court, does not find any reason to interfere with the order passed by the learned Court below. 13. Such not being the facts of the instant case, this Court, does not find any reason to interfere with the order passed by the learned Court below. 13. At this stage this Court seeks to rely upon the observations of the Hon’ble Apex Court in case of M/s Garment Craft Vs. Prakash Chand Goel 2022 Live Law 9SC) 39. Para no. 15 of the said decision, being relevant for the present purpose, is reproduced hereinbelow for benefit. “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.” 14. The Hon’ble Apex Court in the said case has interalia observed that the High Court exercising its supervisory jurisdiction under Article 227 is not to act as a Court of First Appeal and re appreciate, reweigh evidence or facts upon which determination under challenge is based. The Hon’ble Apex Court has interalia further observed that the supervisory jurisdiction of this Court is not to correct any error of fact or even a legal flaw when the final finding is justified or can be supported. The Hon’ble Apex Court has interalia further observed that the supervisory jurisdiction of this Court is not to correct any error of fact or even a legal flaw when the final finding is justified or can be supported. The Hon’ble Apex Court has also interalia observed that the power under Article 227 is to be exercised sparingly in appropriate cases more particularly to ensure that there is no miscarriage of justice. In the instant case, in the considered opinion of this Court, the final finding as well as the discussion by the learned Court below, does not suffer from any infirmity whatsoever and whereas in the considered opinion of this Court there has been no miscarriage of justice in the instant case. In this view of the matter, in the considered opinion of this Court, the present application fails and is hereby rejected. Notice is discharged. Interim relief stands vacated.