Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.857 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Rabinarayan Sethi and another … Petitioners -versus- Kanaklata Sethi and others … Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr.A.P.Bose, Advocate For Opposite Parties : Ms.P.S.Mohanty, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 17th November, 2025 B.P. Routray, J. 1. Present CMP is directed against the order dated 7th March 2025 passed by the learned Civil Judge (Sr.Division), Baleswar in C.S. No.495 of 2013-I, wherein the prayer of the Petitioners to stay further proceeding of the said suit on the ground of pendency of the previous suit in C.S.No.98 of 2003 was rejected. CMP No.857 of 2025 Page 1 of 8
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 2.
Legal Reasoning
Heard Mr.Bose, learned counsel for the Petitioners and Ms.Mohanty, learned counsel for Opposite Parties 1 to 4. 3. Present Petitioners are Defendants No.1 & 2 in C.S. No.495 of 2013 and Petitioner No.1 is the plaintiff in C.S. No.98 of 2003. 4. Petitioner No.1 filed C.S.No.98 of 2003 praying for declaration of right title interest, and permanent injunction against some of the co- sharers, where the common ancestor is Hari. His contention is that Hari, who is his father, sold a part of his property to him by virtue of Sale Deed No.256 dated 17.2.1992. Pending disposal of the said suit, all the defendants filed a suit praying for partition in C.S. No.495 of 2013, where the plaintiff in the earlier suit was also one of the defendants. 5. The scheduled property in C.S. No.98 of 2003 is covered in schedule of properties in C.S. No.495 of 2013 at Lot No.2. During pendency of both the suits, present Petitioners who are defendants in C.S.No.495 of 2013 prayed for stay of proceeding of the suit on the ground that the previous suit covering part of the property is included in C.S. No.98 of 2003 praying for declaration of right title interest. CMP No.857 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 6. It is submitted by Mr. Bose, learned counsel for the Petitioners that if the right title interest in respect of part property covered at Lot No.2 in C.S.No.495 of 2013 would be declared in favour of the said plaintiff (present Petitioner No.1), then the said extent of property is bound to be excluded from the purview of partition affecting the rights of the parties. Therefore, the present suit in C.S.No.495 of 2013 should wait till decision is made in C.S.No.98 of 2003. 7. Conversely, it is submitted by Ms. Mohanty, learned counsel for Opposite Parties 1 to 4, who are the plaintiffs in C.S. No.495 of 2013 that, present Petitioners (plaintiffs in earlier suit) have prayed same relief in the present suit by way of counter claim, which is also framed as one of the issue. So there is no need of stay of present suit pending adjudication of C.S. No.98 of 2003. 8. Learned trial court in the impugned order has observed that since whole subject matter in present suit, i.e. C.S. No.495 of 2013 is not covered in C.S.No.98 of 2003 and the substantial issue in the partition suit is a different one than the issue in the earlier suit, there need not be any reason to stay proceeding of the suit. The learned trial court has also indicated about the counter claim raised by the present Petitioners in their written statement in C.S.No.495 of 2013. CMP No.857 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 9. It is true that, the observation of the learned trial court with regard to whole subject matter in both suits is found correct since the schedule of property in C.S. No.98 of 2003 forms Lot No.2 only in C.S. No.495 of 2013. But at the same time the fact that if the right of defendants no.1 & 2 in the present suit in C.S.No.495 of 2013 would be declared as per the relief claims in C.S. No.98 of 2003, the same would definitely affect the prayer for partition over the entire property as claimed in C.S.No.495 of 2013. Thus, it is seen that the result of adjudication in C.S.No.98 of 2003 would have impact on the decision of C.S. No.495 of 2013, though not on whole subject matter. This cannot be ignored at this stage which may render conflicting decisions in respect of the same properties and about the rights of the parties. The principles for stay of the subsequent suit in terms of Section 10 of the CPC have been well settled. In Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333, it has been observed as follows:- “9. Section 10 of the Code which is relevant for the purpose reads as follows: “10.Stay of suit.—No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India CMP No.857 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation.—The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action.” From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10 i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject-matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. 10. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] in which it has been held as follows: (SCC pp. 259-60, para 8) “8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel CMP No.857 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are ‘the matter in issue is directly and substantially in issue’ in the previous instituted suit. The words ‘directly and substantially in issue’ are used in contradistinction to the words ‘incidentally or collaterally in issue’. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.” 10. In the instant case, though it is found that the whole subject matter in both the suits are not substantially same, but as stated above, the impact of decision in C.S.No.98 of 2003 over decision in C.S.No.495 of 2013 cannot be denied. In such circumstances to overcome the hurdles, it is better to club both the suits for hearing together. To such proposal, learned counsels for both parties also CMP No.857 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 agree. Clubbing of two or more suits is based on the principle to meet the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar evidence twice in the two suits at two different trials. [See Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551]. 11. Taking into consideration the peculiar facts and situations in the present case, where both parties in the earlier suit are present in the later suit and the prayer in the earlier suit has been renewed by way of counter claim in the later suit, it is felt appropriate that a direction for clubbing of both suits is necessary in the interest of justice and as such this Court is inclined to direct for the same.
Decision
12. Resultantly, the CMP is disposed of with a direction for transfer of C.S. No.95 of 2003, which is pending in the Court of learned Civil Judge (Jr.Division), Balasore, to the Court of 2nd Additional Senior Civil Judge, Balasore to be tried and heard together with C.S.No.495 of 2013, in accordance with law. It is further observed that the evidence so recorded in one suit may be read in evidence in the other suit as well, but their identity as two suits will remain separate and distinct from each other. They may be disposed of by one judgment or CMP No.857 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Nov-2025 17:11:11 two judgments on the same evidence, but in any case two decrees shall have to be drawn up at the end. 13. Since both parties present before this Court have agreed for such clubbing of both the suits, they are directed to cooperate for early disposal of the suits accordingly and are directed to appear before the 2nd Additional Senior Civil Judge, Balasore on 15th December 2025 and in the meantime shall take steps for transfer of C.S.No.98 2003 to the court of learned 2nd Additional Senior Civil Judge, Balasore. Judge ( B.P. Routray) C.R.Biswal, A.R.-cum-Sr.Seretary CMP No.857 of 2025 Page 8 of 8