AJAY KUMAR MOHANTY vs SANTANU KUMAR MOHANTY
- Court
- Odisha High Court
CMP/754/2026
ODHC010325472026
2026:OHC:267
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 754 of 2026
CNR No- ODHC010325472026
(In the matter of an application under Articles 227 of the Constitution
of India, 1950).
Ajay Kumar Mohanty …. Petitioner (s)
-versus-
Santanu Kumar
Mohanty & Ors.
…. Opposite Party (s)
:
Advocates appeared in the case through Hybrid Mode
For Petitioner (s) : Mr. Sailesh Das, Adv.
For Opposite Party (s) : Mr. Goutam Chandra Rout, Adv.
CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-27.08.2026
DATE OF JUDGMENT:-30.10.2026
Dr. Sanjeeb K Panigrahi, J.
1. The Petitioner has instituted the present Civil Miscellaneous Petition
under Article 227 of the Constitution of India assailing the legality,
propriety, and correctness of the order dated 07.04.2026 passed by the
learned Civil Judge (Senior Division)-II, Cuttack, in C.S. No. 283 of 2018,
whereby the learned Trial Court rejected the application filed by the
Plaintiff under Order XVIII Rule 1 of the Code of Civil Procedure, 1908,
seeking a direction that Defendant No. 5 (the present Opposite Party
No. 1) be called upon to begin the suit first.
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
2. The said application was filed on the ground that Defendant No. 5, in
his pleadings, has specifically asserted that the Plaintiff is the adopted
son of Late Sudam Charan Mohanty. Consequently, the burden of
establishing the alleged adoption, which constitutes a material and
foundational assertion made by Defendant No. 5, lies upon him, and
therefore Defendant No. 5 ought to be directed to lead his evidence first.
However, the learned Trial Court, without properly appreciating the
pleadings of the parties and the principles governing the right to begin
under Order XVIII Rule 1 of the Code of Civil Procedure, has rejected
the said application. The Petitioner is, therefore, constrained to invoke
the supervisory jurisdiction of this Hon’ble Court under Article 227 of
the Constitution of India for setting aside the impugned order and for
issuance of appropriate directions in accordance with law.
ACTUAL ATRIX OF THE ASE
I. F M C :
3. The brief facts of the case are as follows:
(i) The suit is one for partition, permanent injunction and
consequential reliefs in respect of the suit properties claimed to
be ancestral properties.
(ii) The parties belong to two branches descending from a common
ancestor. The petitioner asserts that Late Sudam Charan
Mohanty was his father and that Late Rabindranath
Mohanty was the cousin brother of Sudam Charan Mohanty. The
two branches had cordial relations and had been living jointly in
food and mess.
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
(iii) According to the petitioner, as his father Sudam Charan Mohanty
was residing outside the village in connection with his service,
the joint family affairs were managed by Rabindranath Mohanty.
(iv) The petitioner asserts that he was admitted in school as the son
of Sudam Charan Mohanty, though at a later stage Rabindranath
Mohanty admitted him to an upper class because of the absence
of Sudam from the village. The petitioner specifically denies that
he was ever adopted by Rabindranath Mohanty or his wife
Binapani Mohanty.
(v) The contesting defendant, namely Opposite Party
No.1/Defendant No.5, however, pleaded in his written statement
that the petitioner is the adopted son of Rabindranath
Mohanty and thereby sought to dispute the petitioner's status in
the natural line of succession.
(vi) The petitioner consequently filed an application under Order
XVIII Rule 1 CPC, seeking a direction that Defendant No.5 should
begin the evidence, principally on the ground that the plea of
adoption had been specifically raised by the said defendant. The
learned Trial Court, by order dated 07.04.2026, rejected the
petitioner's application under Order XVIII Rule 1 CPC.
(vii) The petitioner contends that the suit had reached the stage of
hearing and that the application was made before
commencement of evidence. The petitioner therefore challenges
the Trial Court's approach regarding the stage at which an
application under Order XVIII Rule 1 could be considered.
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
(viii) During the pendency of the CMP, the High Court, by order
dated 05.05.2026, heard the petitioner and Opposite Party No.1
and directed issuance/waiver of notice to the other opposite
parties at the petitioner's risk. The Court also directed that, on an
application for adjournment, the Trial Court should adjourn C.S.
No.283 of 2018 for two weeks.
Being aggrieved by the aforesaid facts and circumstances, the Petitioner
has been constrained to approach this Court by way of the present Civil
Miscellaneous Petition.
II. S UBMISSIONS O N B EHALF O F T HE P ETITIONER :
4.
The learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The petitioners assert that the principal question arising for
consideration is whether, having regard to the pleadings and the
nature of the issues, Defendant No.5 ought to be directed to lead
evidence before the plaintiff.
(ii) The petitioner submits that Order XVIII Rule 1 CPC does not
create an inflexible rule that the plaintiff must invariably
commence evidence. The provision itself contains an exception
where the defendant admits the facts alleged by the plaintiff but
sets up a legal contention or an additional fact on the basis of
which the plaintiff is alleged to be disentitled to relief.
(iii) It is argued that the plea of adoption raised by Defendant No.5 is
not a mere denial of the plaintiff's case, but an affirmative and
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
material plea which directly affects the plaintiff's status and
succession.
(iv) According to the petitioner, the plea of adoption strikes at
the root of the plaintiff's claim, because, if established, it would
displace the plaintiff from the natural line of succession.
(v) The petitioner relies upon Section 102 of the Evidence Act,
contending that the burden lies upon the party who would fail if
no evidence were adduced by either side.
(vi) The petitioner submits that Order XVIII Rule 2 CPC must be read
along with Order XVIII Rule 1. The party having the right to begin
is required to state its case and adduce evidence in support of the
issues which that party is bound to prove. The petitioner further
submits that the expression “right to begin” is not merely a
procedural privilege but is connected with the obligation to
establish the material proposition upon which a party relies.
(vii) The petitioner submits that the pleadings, documents and
admissions of the parties must be examined collectively to
determine upon whom the legal burden rests. It is further
submitted that compelling the plaintiff to lead evidence first,
without requiring Defendant No.5 to establish the affirmative
plea of adoption, would prejudice the plaintiff's right to
effectively rebut the said plea.
(viii) The petitioner disputes the Trial Court's view regarding the stage
of the proceeding and contends that the application under Order
XVIII Rule 1 was filed before the actual commencement of
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
evidence. And on these grounds, the petitioner seeks interference
under Article 227 of the Constitution and setting aside of the
impugned order.
III. S UBMISSIONS O N B EHALF O F T HE O PPOSITE P ARTY :
5.
Per contra , the learned counsel for the Opp. Party earnestly made the
submission that the present CMP deserves to be rejected in limine.
(i) The Opp. Party contended that the petitioner has no valid cause
of action for invoking the supervisory jurisdiction of this Court
on the basis of the grounds urged in the CMP. The Opp. Party
disputes the petitioner's factual assertions and alleges that the
petitioner has relied upon false and manufactured documents.
(ii) According to the Opp. Party, the issues in the suit had not yet
been framed, and therefore the question as to which party should
commence evidence ought to be considered by the Trial Court
after framing of the issues.
(iii) The Opp. Party points out that the impugned order dated
07.04.2026 merely rejected the petitioner's prayer seeking a
direction that Defendant No.5 should adduce evidence first.
(iv) The Opp. Party disputes the petitioner's interpretation of the
pleadings and contends that the circumstances relied upon by the
petitioner do not justify an order requiring Defendant No.5 to
begin the evidence. It is specifically contended that the plaintiff,
having instituted the suit, must ordinarily stand on his own legs
and prove his case.
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
(v) The Opp. Party submits that the mere assertion that Defendant
Nos.1 to 3 support the plaintiff's case does not automatically
transfer the burden of proof or confer upon the plaintiff a right to
insist that Defendant No.5 should lead evidence first.
(vi) The Opp. Party relies upon the general principle governing Order
XVIII Rule 1 CPC that the plaintiff ordinarily has the right to
begin and that the statutory exception must be strictly attracted
by the pleadings and circumstances of the particular case.
(vii) Reliance is also placed upon judicial authorities concerning the
distinction between the right to begin and the burden of proving
particular issues. The Opp. Party contends that the existence of
an issue carrying the burden upon the defendant does not, by
itself, necessarily mean that the defendant must commence the
entire trial.
IV. C OURT ’ S R EASONING AND A NALYSIS :
6. Heard learned counsel for the parties and perused the materials placed
on record.
7.
The question which falls for determination is whether the learned Trial
Court was justified in declining the prayer of the petitioner under
Order XVIII Rule 1 of the Code of Civil Procedure, 1908, seeking a
direction upon Defendant No.5 to begin the evidence.
8. At the outset, it is necessary to bear in mind that the ordinary rule under
Order XVIII Rule 1 CPC is that the plaintiff has the right to begin .
However, the rule itself engrafts an exception where the defendant
admits the facts alleged by the plaintiff and contends either on a
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
question of law or on the basis of an additional fact that the plaintiff is
not entitled to any part of the relief claimed. Thus, the question cannot
be decided merely by applying the general proposition that the plaintiff
instituted the suit and, therefore, must necessarily lead evidence first.
9.
The determination must depend upon the nature of the pleadings, the
material propositions in controversy and, more particularly, the party
upon whom the burden lies to establish the additional fact constituting
the foundation of the defence.
10. In the present case, the plaintiff's specific case is that he is the natural
son of Late Sudam Charan Mohanty. The contesting Defendant No.5,
on the other hand, has taken a specific plea that the plaintiff is the
adopted son of Late Rabindranath Mohanty. The said plea is not a mere
traverse of the plaintiff's case. It constitutes an affirmative plea which,
if established, would materially affect the plaintiff's status and his claim
founded upon natural succession.
11. The legal consequence of such a plea is significant. A person who seeks
to displace the natural course of succession by asserting adoption
cannot merely plead the fact of adoption and leave the opposing party
to disprove it. The burden of establishing the factum and validity of
adoption lies upon the person who asserts it.
12. The principle embodied in Section 102 of the Evidence Act is also
relevant. The burden of proof lies upon the party who would fail if no
evidence were adduced by either side. Therefore, insofar as the
affirmative plea of adoption is concerned, the evidentiary burden
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
cannot be shifted upon the plaintiff merely because he is the plaintiff in
the suit.
13. At the same time, Order XVIII Rule 1 CPC does not contemplate a
mechanical determination of the sequence of evidence divorced from
the pleadings and issues. The Supreme Court in Jami Venkata
1
Suryaprabha v. Tarini Prasad Nayak , wherein it was held that
“10. Order XVIII Rule 1 of the CPC reads thus:-
“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.
11. As a general rule, according to the procedural law, no
doubt it is, the plaintiff who has to prove his claim by positive
proof, for the court has to see whether there is a proof to claim
before it needs to enquire, as to the truth or otherwise of the
defence. It is open to the plaintiff to say that although he has
the right to begin, yet he may rest content with relying upon
the averments made in the written statement. Yet evidence
need not always be led by the party who has the right to begin
and on whom lies the burden of proof; it is open to him t
sustain the onus by facts which he may elicit in cross
examination of the other party or his witness. In order to
come to the conclusion, concerning on whom the legal
burden of proof rests, in addition to the substantive law, the
pleadings of the parties coupled with documents that they
produced & the admissions, if any concerning such
documents have to be taken into account.”
14.
The said principle, however, does not mean that every affirmative plea
taken in a written statement automatically confers upon the plaintiff a
1
(2024) 12 SCR 646
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
right to compel the defendant to commence the entire evidence. The
statutory exception under Order XVIII Rule 1 must be applied with
reference to the actual issues arising for adjudication.
15. The record further indicates that the petitioner relied upon the plea of
adoption specifically taken by Defendant No.5 as the principal ground
for seeking that the defendant should begin. The said plea concerns a
material fact which is specifically attributable to Defendant No.5. If
Defendant No.5 seeks to defeat the plaintiff's claim by establishing
adoption, the burden of proving that affirmative plea necessarily rests
upon him.
16.
The distinction between the burden of proof and the sequence of
evidence is nevertheless required to be maintained. The fact that the
burden of proving a particular issue lies upon the defendant does not
invariably mean that the defendant must lead evidence on every issue
in the suit. The Court has to determine the sequence with reference to
the issues as a whole.
17.
The decision in Jami Venkata Suryaprabha (supra) is particularly
instructive in this regard. The Supreme Court has held that Order XVIII
Rule 1 does not impose an absolute obligation upon the Court to call upon the
plaintiff to lead evidence first in every case . The Court possesses procedural
discretion to determine the appropriate sequence having regard to the
facts and circumstances and the nature of the issues. The guiding
consideration is the advancement of justice and not a rigid
compartmentalisation of procedural rules.
Signature Not Verified
Page 10
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
18. In the present case, therefore, the plea of adoption cannot be treated as
an ordinary denial. It is an affirmative plea which has a direct bearing
upon the plaintiff's alleged status and succession. The person who has
specifically raised such plea must necessarily discharge the evidentiary
burden attached thereto.
19.
The objection of the respondent that the plaintiff must invariably prove
his case first cannot, in such absolute form, be accepted. The general
rule under Order XVIII Rule 1 is subject to the statutory exception, and
the Court is required to examine whether the particular defence attracts
that exception.
20.
The respondent's further contention that the issues had not been
framed also requires consideration. The determination of the right to
begin is closely connected with the issues which the Court is required
to adjudicate. Order XIV CPC contemplates framing of issues upon
material propositions of fact or law affirmed by one party and denied
by the other. Consequently, the sequence of evidence should ordinarily
be determined with due regard to the issues actually arising between
the parties.
21. Nevertheless, the mere fact that issues are to be framed or have not yet
been finally crystallised cannot, by itself, render an application under
Order XVIII Rule 1 wholly incompetent. The Court is entitled to
examine the pleadings and determine the appropriate course so that the
evidence is led in an orderly and effective manner.
22.
The petitioner's reliance upon the principle that he must be afforded a
meaningful opportunity to rebut the plea of adoption is also well
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
founded in principle. If Defendant No.5 is permitted to establish
adoption, the plaintiff would necessarily be entitled to meet and rebut
that evidence. The sequencing of evidence should not result in
depriving either party of an effective opportunity to establish the case
which it is legally bound to prove.
23.
This Court is, however, exercising jurisdiction under Article 227 of the
Constitution. Such jurisdiction is supervisory and is not to be exercised
as if this Court were sitting in appeal over every interlocutory
procedural order. Interference is warranted where the subordinate
Court has acted without jurisdiction, failed to exercise jurisdiction
vested in it, or has adopted an approach resulting in manifest injustice
or a patent error of law.
24. On the material placed before this Court, the decisive consideration is
that Defendant No.5 has taken the specific plea of adoption and seeks
to rely upon that affirmative plea to defeat or materially affect the
plaintiff's claim. The evidentiary burden relating to that plea cannot be
placed upon the plaintiff.
25.
Accordingly, the Trial Court, while determining the sequence of
evidence, ought to consider the specific burden attached to the plea of
adoption and the principles governing Order XVIII Rules 1 and 2 CPC.
The Court must ensure that the party upon whom the burden of
proving an affirmative plea lies is not permitted to shift that burden
upon the opposite party merely because the latter happens to be the
plaintiff.
Signature Not Verified
Page 12
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
26. For the aforesaid reasons, the impugned order dated 07.04.2026
requires reconsideration to the limited extent of the sequencing of
evidence under Order XVIII Rule 1 CPC. The Trial Court shall
determine the question afresh in the light of the pleadings, the issues
framed in the suit and the statutory burden of proof, particularly in
relation to the specific plea of adoption raised by Defendant No.5.
27. It is clarified that this Court is not adjudicating, at this stage, the truth
or validity of the alleged adoption, the ultimate entitlement of the
plaintiff to partition, or any other substantive issue arising in the suit.
Those questions are matters for determination by the learned Trial
Court upon appreciation of the evidence.
V. C ONCLUSION :
28. In view of the foregoing analysis and upon an anxious and careful
consideration of the material facts and circumstances of the case, this
Court finds no jurisdictional infirmity or patent illegality in the order
dated 07.04.2026 passed by the learned Civil Judge (Senior Division),
2nd Court, Cuttack in C.S. No.283 of 2018 warranting interference in
exercise of the supervisory jurisdiction under Article 227 of the
Constitution of India.
29. The petition deserves to be considered within the limited scope of
Order XVIII Rule 1 CPC and the supervisory jurisdiction under Article
227 of the Constitution. The learned Trial Court shall proceed in
accordance with law, keeping in view the distinction between the
ordinary right of the plaintiff to begin and the evidentiary burden
resting upon the party who asserts an affirmative plea of adoption.
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09
30. Accordingly, the C.M.P stands dismissed.
31. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 30 Oct, 2026.
Signature Not Verified
Page 14
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Nov-2026 18:29:09