Orissa High Court
Amaresh Sarkar vs Cuttack Durgabari Samity on 15 September, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack
Date: 18-Sep-2025 17:55:19
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.521 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Amaresh Sarkar .... Petitioner
-versus-
Cuttack Durgabari Samity,
represented through its Secretary
Gautam Mukherji and Others ... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. B. Bhuyan, Sr. Advocate along
with Ms. S. Sahoo, Advocate.
For Opp. Parties : Mr. S.P. Mishra, Sr. Advocate along
with Ms. S. Rout, Advocate.
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
15 September, 2025
B.P. Routray, J.
1. Heard Mr. B. Bhuyan for the Petitioner and Mr. S.P. Mishra for
the Opposite Parties, both learned senior counsels.
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2. Present CMP is directed against impugned order dated 13th
February, 2025 passed in CS No.9 of 2011 analogously tried with CS
No.424 of 2022, of learned 1st Additional Senior Civil Judge, Cuttack.
3. Present Petitioner is the Plaintiff in CS No.424 of 2022 and
Defendant No.3 in CS No.9 of 2011, whereas present Opposite Party
No.1 is Plaintiff in CS No.9 of 2011 and Defendant No.1 in CS
No.424 of 2022.
CS No.9 of 2011 is filed with a prayer for declaration of right,
title and interest of the Plaintiff therein in respect of the suit property.
The same suit property is the subject matter in dispute in CS No.424
of 2022 wherein the Plaintiff therein has prayed for eviction of
Defendant No.1, confirmation of his possession and permanent
injunction.
4. Both the suits having involved same property and dispute
between the common parties, learned District Judge in TRP(C) No.6
of 2022 directed for analogous trial of both the suits and to deliver
common judgment. Thereafter trial of both suits began and evidence
was led before the 1st Additional Senior Civil Judge, Cuttack. The
Plaintiff in CS No.9 of 2011 examined himself as P.W.1 and his
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evidence was concluded on 31st January, 2024 as per Annexure-6 and
then the evidence of P.W.2 began and concluded on 7th November,
2024. Similarly the evidence of P.W.3 was concluded on 29th
November, 2024. Thereafter P.W.4 was examined and discharged and
the evidence from the side of Plaintiff in CS No.9 of 2011 was closed.
Thereafter a petition was filed by the Plaintiff in CS No.9 of 2011 on
16th January, 2025 praying to allow him to adduce evidence, if
necessary in other suit, i.e. CS No.424 of 2022, after completion of
evidence of Plaintiff in the said suit. It is relevant to reproduce para-5
and prayer portion of said petition which read as follows:-
"5. That, under the circumstances the Plaintiff Society who is
the Principal Defendant No.l in C.S No.424/2022 reserves its
right to adduce evidence in C.S No.424/2022 only after the
evidence of the present Defendant No.3 who is the Plaintiff in
C.S No.424/2022 since right to begin vests on the present
Defendant No.3 who is the Plaintiff in C.S No.424/2022 or
else the present Plaintiff will be highly prejudiced.
PRAYER
It is therefore prayed that this Hon'ble Court may
be graciously pleased to allow the present Plaintiff to adduce
its evidence if necessary in C.S No.424/2022 after the
completion of evidence of the present Defendant No.3
(Plaintiff in C.S No.424/2022).
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And for this act of kindness the Plaintiff shall as in duty
bound ever pray."
5. Said prayer of present Opposite Party No.1 was allowed vide
impugned order dated 13th February, 2025, which is subject matter of
challenge in present CMP. Some relevant portion of said order of
learned trial court is reproduced bellow:-
"4. Perused the petition, objection, pleadings, evidence
affidavit of three witnesses from the side of plaintiff in C.S.
No.9/2011, order dated 14.03.2023 passed by the Hon'ble
District Judge, Cuttack in TRP(Civil) No.6/2022 and other
relevant documents. Firstly, on perusal of the order dated
14.03.2023 passed by the Hon'ble District Judge, Cuttack in
TRP(Civil) No.6/2022, it is apparent that the Hon'ble Court
has directed for analogous trial of both the suits in this Court
and to deliver a common judgment. Secondly, on perusal of
the evidence affidavits of P.W.1 to P.W.3 in C.S. No.9/2011,
it is evident that in the cause title of all the evidence
affidavits both the case numbers are mentioned but on
detailed scrutiny of the evidence affidavits of all the three
witnesses, it is discovered that the evidence of P.W.1 to
P.W.3 is only confined to C.S. No.9/2011 and no evidence
has been adduced with respect to pleadings made in C.S.
No.424/2022. That apart, it is also discovered that during
cross-examination, the above witnesses have not been put
detailed questions with respect to pleadings made in
C.S.No.424/2022. Thus, if the present plaintiff is not
permitted to adduce evidence in C.S.No.424/2022 then the
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same shall not only cause prejudice to the present plaintiff
but also to the present defendant.
5. At this juncture, it is noteworthy to mention that no
order has been passed in TRP(Civil) No.6/2022 with respect
to the manner in which the hearing shall commence in both
the suits or the manner in which the witnesses shall be
examined in both the suits for which the present petition is
maintainable before this Court and the question of going
beyond the order dated 14.03.2023 in TRP(Civil) No.6/2022
does not arise at all. That apart, there is no straight jacket
formula regarding manner of examination of witnesses in two
suits having analogous trial. Therefore, as the witnesses for
the plaintiff in C.S. No.9/2011 have only adduced evidence
with respect to the said case, they definitely have a right as
per law to adduce evidence in C.S. No.424/2022 as defendant
No.l. Hence, considering above facts and circumstances, the
petition is allowed. Put up on 21.02.2025 for evidence from
the side of defendant in C.S.No.9/2011 as well as evidence
from the side of plaintiff in C.S. No.424/2022."
6. Mr. Bhuyan, learned senior counsel contends on behalf of the
Petitioner that when both the suits have been directed to be tried
analogously and to be disposed of by one common judgment, the
evidence adduced by one party, who is Plaintiff in CS No.9 of 2011,
has to be treated as whole of his evidence in both the suits since the
suits by way of analogous trial have been consolidated as one suit.
Therefore, the party who has adduced and closed his evidence would
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have no further right survived in his favour to adduce further evidence
after closure of the evidence of the rival party. According to Mr.
Bhuyan, this would be duplicity of evidence and will complicate the
statement of witnesses.
7. Conversely, Mr. Mishra, learned Sr. counsel for Opposite Party
No.1 submits that analogous trial of both the suits does not amount to
consolidation of both suits for the issues to be determined, which are
separate and distinct keeping in view the nature of the prayer in
respective plaints. Mr. Mishra, learned senior counsel taking recourse
of the provisions contained under Order 18 Rule 3 of the C.P.C.
submits that the party has right to adduce evidence in rebuttal under
certain conditions subject to satisfaction of the court. According to
him, since several issues are here in both the suits being tried
analogously, the right of the Plaintiff in CS No.9 of 2011 would not be
same as the right of Defendant No.1 in CS No.424 of 2022 and
therefore, the learned trial court has rightly allowed the prayer of
present Opposite Party No.1 to reserve his right to adduce further
evidence.
8. At the outset, the provisions of Order 18 Rule 3 is reproduced
as under:-
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"3. Evidence where several issues.-Where there are several
issues, the burden of proving some of which lies on the party,
the party beginning may, at his option, either produce his
evidence on those issues or reserve it by way of answer to the
evidence produced by the other party; and, in the latter case,
the party beginning may produce evidence on those issues
after the other party has produced all his evidence, and the
other party may then reply specially on the evidence so
produced by the party beginning; but the party beginning will
then be entitled to reply generally on the whole case."
This court in Rajkishore Biswal v. Mohan Charan Biswal,
2015 (II) OLR 1104, while dealing with the propositions under Order
18 Rule 3 has held as follows:-
"7. On an interpretation of the said Rule, a Bench of this
court in the case of Sri Nilakantha Rath (supra) held that for
its application the first condition to be satisfied is that there
must be several issues involved in the suit. The issues
referred to in the said provisions obviously mean issues of
fact, because evidence is required to be led only on issues.
Therefore, in order to attract the provision, there must be
more than one issue of fact. It was further held that although
the provision does not prescribe any particular stage at which
the option should be exercised, it is only fair and reasonable
that the same should be exercised before the party (exercising
the option) begins his evidence and in no case after evidence
from the other side has began. That is because, the other party
must know clearly before he begins his evidence that the first
party has actually not finished adducing his entire evidence in
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the suit. The same view was taken in the case of Smt. Prativa
Kar (supra) (emphasis laid)."
9. According to Mr. Bhuyan, learned senior counsel for the
present Petitioner, the facts of present case do not attract the
provisions under Order 18 Rule 3 to give right of rebuttal evidence in
support of the Plaintiff in CS No.9 of 2011 who has already closed his
evidence in fact.
10. Looking into the prayer of the petition filed by the Plaintiff in
CS No.9 of 2011 as stated above, it is seen that he as Defendant No.1
in CS No.424 of 2022 reserves his right to adduce evidence after
closure of Plaintiff's evidence in respect of CS No.424 of 2022. This
statement of present Opposite Party No.1 in his petition dated 16th
January, 2025 speaks his intention clearly that he for the purpose of
adducing evidence in rebuttal to the evidence of the Plaintiff in CS
No.424 of 2022, is required to adduce his evidence.
11. The Hon'ble Supreme Court in Chitivalasa Jute Mills v. Jaypee
Rewa Cement, AIR 2004 SC 1687, while directing for transfer of one
suit from Rewa to Visakhapatnam has stated as follows:-
"12. The two suits ought not to be tried separately. Once the
suit at Rewa has reached the Court at Visakhapatnam, the two
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suits shall be consolidated for the purpose of trial and
decision. The Trial Court may frame consolidated issues.
The Code of Civil Procedure does not specifically speak of
consolidation of suits but the same can be done under the
inherent powers of the Court flowing from Section 151 of the
CPC. Unless specifically prohibited, the Civil Court has
inherent power to make such orders as may be necessary for
the ends of justice or to prevent abuse of the process of the
Court. Consolidation of suits is ordered for meeting the ends
of justice as it saves the parties from multiplicity of
proceedings, delay and expenses. Complete or even
substantial and sufficient similarity of the issues arising for
decision in two suits enables the two suits being consolidated
for trial and decision. The parties are relieved of the need of
adducing the same or similar documentary and oral evidence
twice over in the two suits at two different trials. The
evidence having been recorded, common arguments need be
addressed followed by one common judgment. However, as
the suits are two, the Court may, based on the common
judgment, draw two different decrees or one common decree
to be placed on the record of the two suits. This is how the
Trial Court at Visakhapatnam shall proceed consequent upon
this order of transfer of suit from Rewa to the Court at
Visakhapatnam."
12. The aforesaid direction of Hon'ble Supreme Court while
transferring the suit from one court to another has clearly stated that
the same principle would apply in respect of that particular case.
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13. The Supreme Court in S.C. Jain v. Bindeshwari Devi, 1997
SCC OnLine Del 417, while dealing with the issue of consolidation of
two suits have held as follows:-
"21. Three neighbouring concepts, often confused with
each other, may be made precise. They are (i) a direction for
analogous or simultaneous hearing of the suits; (ii)
consolidation of suits in their entirety and (iii) consolidation
of suits for the purpose of trial.
21.1 A direction for analogous or simultaneous hearing
of the suits requires the court to take up the two suits for
hearing on the same date. The identity of the suits remains
distinct and independent from each other. It is not merged
either wholly or even partially. The hearing takes place
separately in each suit though on the same date. Such are the
cases where on account of similar or same question of law
arising for decision in different suits or the same material
witness being required to be examined in different suits, for
the sake of convenience the court directs the suits to be taken
up for hearing on one day. There may be cases where in spite
of the parties and or the subject matter being different, not
attracting applicability of Section 10, Section 151 CPC, the
Court feels that while hearing one suit, it must keep a watch
on the progress of or developments in the other suit, and
therefore, directs the two suits to come up for hearing on the
same day.
21.2 Consolidation of suits in entirety results into merger
of the two suits into one, the two suits loosing their
independent existence for all practical purposes after the
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order of consolidation. Take for example a suit for recovery
of rent filed by the same landlord against the same tenant in
respect of the same property and the same tenancy but for
different periods, say three years each or take a case of two
suits attracting applicability of Order 2 Rule 2 CPC but
having been filed on the same day. Consolidation of suits
may enable a court striking out consolidated issues. The two
suits can be disposed of by one common judgment followed
by one decree.
21.3 Consolidation of suits for trial merely or partial
consolidation enables the evidence in the two suits being
recorded in one suit only and the evidence so recorded being
read in the other suit as well. In spite of the consolidated trial
having taken place the two suits remain separate and distinct
from each other. They may be disposed of by one judgment
or two judgments on the same evidence but in any case two
decrees shall have to be drawn up at the end. Take for
example the case of cross suits filed on a cause of action
arising out of the same transaction. One suit may be
dismissed and the other may be decreed. The two decrees in
the two suits will be different. One out of the two parties may
appeal against one and may not appeal against the other if the
bar of res judicata is not attracted while doing so. Take the
case of an owner of limited estate having made several
alienations in favour of different persons and the transactions
having been challenged by the reversioncrs in different suits
against different purchasers some suit may be decreed some
may be dismissed though evidence may be common and
common questions of law and facts arise. In spite of
consolidation for trial of the suits and disposed of by the
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court pronouncing one or more judgments separate decrees
shall have to be drawn up."
14. As per the submission advanced on behalf of present Petitioner
his apprehension is that by allowing the Plaintiff in CS No.9 of 2011
to adduce his further evidence there would be every chance of
duplicating his previous evidence and complicating his earlier
statements. Here it is important to look into the nature of prayer in the
plaints itself where CS No.9 of 2011 is for declaration of right, title,
interest and CS No.424 of 2022 is for declaration, restoration of
possession and permanent injunction. The prayers made in the plaints
prima facie appear distinct and it may not be untrue to found if some
of the issues are common or connected to each other. Nevertheless,
the fact remains that as per the evidence adduced by the Plaintiff in
CS No.9 of 2011, his evidence corresponds to both the suits and in
respect of both the suits as stated in the heading of depositions. At the
same time by reading the prayer of said Plaintiff in CS No.9 of 2011
in the petition filed by him, it would be manifest that his purpose is to
adduce rebuttal evidence in the issues relating to CS No.424 of 2022.
Therefore the apprehension raised on behalf of the present petitioner,
who is the Plaintiff in CS No.424 of 2022 may be canvassed by
restricting said Plaintiff in CS No.9 of 2011 not to duplicate his own
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evidence as earlier stated and to confine his evidence in the nature of
rebuttal to the evidence of the Plaintiff in CS No.424 of 2022.
15. Therefore the order of the learned trial court dated 13th
February, 2025 (Annexure-9) is accordingly modified to the extent
that the Plaintiff in CS No.9 of 2011 while permitted to adduce his
evidence after the evidence of the Plaintiff in CS No.424 of 2022
would be allowed only to the extent of answering / rebutting to the
evidence in respect of CS No.424 of 2022 without complicating or
duplicating the evidence of the Plaintiff in CS No.9 of 2011.
16. With aforesaid observation and direction present CMP is
disposed of.
( B.P. Routray)
Judge
M.K. Panda/P.A
