Amaresh Sarkar Vs Cuttack Durgabari Samity, Cuttack

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

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.521 of 2025

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(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

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Advocate(s) appeared in this case:-

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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.

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CORAM: JUSTICE B.P. ROUTRAY JUDGMENT

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15^th September, 2025

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B.P. Routray, J.

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1 . Heard Mr. B. Bhuyan for the Petitioner and Mr. S.P. Mishra for

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the Opposite Parties, both learned senior counsels.

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CMP No.521 of 2025

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Page 1 of 13

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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2. Present CMP is directed against impugned order dated 13^th February, 2025 passed in CS No.9 of 2011 analogously tried with CS No.424 of 2022, of learned 1^st Additional Senior Civil Judge, Cuttack.

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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.

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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.

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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 1^st 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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CMP No.521 of 2025

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Page 2 of 13

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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evidence was concluded on 31^st January, 2024 as per Annexure-6 and then the evidence of P.W.2 began and concluded on 7^th November, 2024. Similarly the evidence of P.W.3 was concluded on 29^th 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 16^th 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:-

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“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.

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PRAYER

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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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CMP No.521 of 2025

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Page 3 of 13

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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And for this act of kindness the Plaintiff shall as in duty bound ever pray.”

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5. Said prayer of present Opposite Party No.1 was allowed vide impugned order dated 13^th February, 2025, which is subject matter of challenge in present CMP. Some relevant portion of said order of learned trial court is reproduced bellow:-

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“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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CMP No.521 of 2025

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Page 4 of 13

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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same shall not only cause prejudice to the present plaintiff but also to the present defendant.

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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.”

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6. Mr. Bhuyan, learned senior counsel contends on behalf of the

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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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CMP No.521 of 2025

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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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.

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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.

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8. At the outset, the provisions of Order 18 Rule 3 is reproduced as under:-

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CMP No.521 of 2025

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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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.”

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This court in Rajkishore Biswal v. Mohan Charan Biswal,

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2015 (II) OLR 1104, while dealing with the propositions under Order 18 Rule 3 has held as follows:-

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“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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Page 7 of 13

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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the suit. The same view was taken in the case of Smt. Prativa Kar (supra) (emphasis laid).”

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9. According to Mr. Bhuyan, learned senior counsel for the

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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.

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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 16^th 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.

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11. The Hon’ble Supreme Court in Chitivalasa Jute Mills v. Jaypee

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Rewa Cement, AIR 2004 SC 1687, while directing for transfer of one suit from Rewa to Visakhapatnam has stated as follows:-

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“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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CMP No.521 of 2025

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Page 8 of 13

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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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.”

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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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CMP No.521 of 2025

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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13. The Supreme Court in S.C. Jain v. Bindeshwari Devi, 1997

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SCC OnLine Del 417 , while dealing with the issue of consolidation of two suits have held as follows:-

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“ 2 1. 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.

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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.

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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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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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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.

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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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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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court pronouncing one or more judgments separate decrees shall have to be drawn up.”

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14. As per the submission advanced on behalf of present Petitioner

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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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Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 18-Sep-2025 17:55:19

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evidence as earlier stated and to confine his evidence in the nature of

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rebuttal to the evidence of the Plaintiff in CS No.424 of 2022.

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15. Therefore the order of the learned trial court dated 13^th 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.

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16. With aforesaid observation and direction present CMP is

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disposed of.

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( B.P. Routray) Judge

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M.K. Panda/P.A

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CMP No.521 of 2025

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Amaresh Sarkar v. Cuttack Durgabari Samity, Cuttack

Case brief

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Amaresh Sarkar v. Cuttack Durgabari Samity, Cuttack

Case brief

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