JUDGMENT I. MAHANTY, J. — In this writ petition, the petitioner Smt. Lala Sukanti Ray has sought to challenge the order passed by the Civil Judge (Senior-Division) First Court, Cuttack in dis¬missing her application for amendment of the written statement and also rejecting the application of the present petitioner for tagging the two suits C.S. No.379 of 2002 along with C.S. No.433 of 2005 or alternatively seeking stay of further proceeding in C.S. No.379 of 2002 till disposal of C.S. No.433 of 2005. 2. The facts of the present case indicates that the present Opp.Party No.1, as plaintiff, instituted C.S. No.379 of 2002 before the Civil Judge (Senior Division) First Court, Cuttack impleading the other opposite parties as well as the present petitioner (Defendant No.5) claiming partition of ‘B’ schedule property situated at Jagatsinghpur. In the said suit, the plaintiff also claimed 50% share in the ‘A’ schedule property situated at Cuttack. The petitioner-defendant No.5 claims that upon issuance of notice of the suit, he came to know that the plaintiff is claiming half share of Schedule ‘A’ property on the basis of the decree passed in T.S. No.99 of 1985 in which the award passed by the arbitrator has been made “Rule of Court.” It is contended by the petitioner that on receiving notices from the Court, she made an inquiry regarding T.S. No.99 of 1985 and found that the said decree had been obtained without making her a party in order to ignore her entitlement. The petitioner further states that after getting information and making inquiry, she filed C.S. No.433 of 2005 before the Civil Judge (Senior Division) First Court, Cuttack on 7.10.2005 seeking to set aside the decree passed in T.S. No.99 of 1985. 3. Sri Bidhayak Patnaik, learned counsel for the petitioner submitted that although in the present writ applica¬tion, two prayers are made, one against the order dismissing the application filed by the petitioner for amendment of written statement, a second prayer has been made for direction for hear¬ing of the two suits analogously. At the time of hearing learned counsel for the petitioner does not press the prayer regarding the rejection of amendment application and confines her prayer for tagging the two suits, namely, C.S. No.379 of 2002 along with C.S. No.433 of 2005 both pending before the Civil Judge (Senior Division) First Court, Cuttack. At the time of hearing learned counsel for the petitioner does not press the prayer regarding the rejection of amendment application and confines her prayer for tagging the two suits, namely, C.S. No.379 of 2002 along with C.S. No.433 of 2005 both pending before the Civil Judge (Senior Division) First Court, Cuttack. Learned counsel for the petition¬er has filed a memo to the aforesaid effect. Learned counsel appearing for the opposite parties vehemently objects to such a prayer made by the petitioner and submitted that there is no necessity for directing hearing of two suits analogously since they involve distinctly separate matters. 4. Having heard learned counsel for both parties, and upon perusal of the plaints in both the aforesaid suits. It is seen that whereas in C.S. No. 379 of 2002 prayer have been made by the plaintiff for partition of both schedule ‘A’ and schedule ‘B’ properties, it further appears, that the plaintiff has sought for a declaration of 50% of share in schedule ‘A’ property situ¬ated at Cuttack, purportedly on the basis of and relying on a decree passed in C.S. No.99 of 1985 by the learned Civil Judge, (Senior Division), Ist Court, Cuttack. From the prayer made in C.S. No.433 of 2005 it appears that the present petitioner has filed the said suit with a prayer to set aside the decree dated 9.3.1987 in T.S. No.99 of 1985. In view of the discussions made above, I am of the opinion that since common questions are raised in both the suits and they are clearly interconnected, adjudication of both the suits to¬gether would be in the interest of all the parties as well as in the interest of justice. Therefore this writ application is al¬lowed in part to the extent indicated above with a direction of the Civil Judge (Senior Division) Ist Court, Cuttack to tag C.S. No.379 of 2002 with C.S. No.433 of 2005 and proceed with them in accordance with law. Application allowed in part. 2008 (II) OLR — 566 S. PANDA, J. Mirza Niamat Baig and another ... Petitioners Versus Sk. Abdul Sayeed and others ... Opp. Parties W.P.(C) No.9948 of 2008 Decided on 22nd July, 2008. For Petitioner : M/s. Sarat Chandra Ghose, P. C. Das For Opp. Party (Caveator) : Mr. P. C. Mishra 1. Application allowed in part. 2008 (II) OLR — 566 S. PANDA, J. Mirza Niamat Baig and another ... Petitioners Versus Sk. Abdul Sayeed and others ... Opp. Parties W.P.(C) No.9948 of 2008 Decided on 22nd July, 2008. For Petitioner : M/s. Sarat Chandra Ghose, P. C. Das For Opp. Party (Caveator) : Mr. P. C. Mishra 1. CIVIL PROCEDURE CODE, 1908 - Order 18, Rule 1 - Application filed by the plaintiff accepted and directed that defendants to adduce evidence first - Writ by defendants - Held, as the plaintiff has raised the question of fraud to have been practised on him it is he who should begin first, as per the provision contained in Order 18, Rule 1 CPC - Defendants shall adduce rebuttal evidence - Direction issued. As a general rule, the party on whom the burden of proof rests should begin. In no case, the plaintiff can be allowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plain¬tiff in the suit. In the wording “unless the defendant admits the facts alleged” occurring in Order 18, Rule 1, C.P.C., the word “facts” means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin. In the present case, the defendants have taken the plea of previous partition. In order to prove their plea, they have to begin first and thereafter the plaintiff is to adduce rebuttal evidence. In the present case as the plaintiff-opposite parties have alleged fraud, they have to first establish that fraud had been practised and thereafter the defendant has to adduce rebut¬tal evidence. The defendants only admit a part of the allegation of the plaintiff regarding earlier partition. 2. PRACTICE AND PROCEDURE - Suit - A person who sets the law in motion and seeks a relief before the Court, must necessarily be in a position to prove his case and get the relief moulded by the law - The right to begin is to be determined by the rules of evidence. 3. CIVIL PROCEDURE CODE, 1908 - Order 18, Rule 1 - “Unless the defendant admits the facts alleged” - The word “facts” means all the material facts. 3. CIVIL PROCEDURE CODE, 1908 - Order 18, Rule 1 - “Unless the defendant admits the facts alleged” - The word “facts” means all the material facts. Referred to : 1992 (I) OLR 72 : Purastam v. Chatru ORDER 22.07.2008 — Heard Mr. S.C. Ghose, learned counsel for the petitioners, and Mr. P.C. Mishra, learned counsel appearing for opposite party No.1. In this writ application, defendants 3 and 6 are the peti¬tioners. They have challenged the order dated 20.5.2008 passed by the learned Second Additional Civil Judge (Senior Division), Cuttack in C.S. No.148 of 2006 whereby he accepted the applica¬tion filed by the plaintiff under Order 18, Rule 1, C.P.C. and directed the defendants to adduce evidence first. In T.S. No.539 of 1990 filed by the present opposite party No.1-plaintiff, the defendants had filed their written-statement stating regarding the previous partition of the suit property. Said suit was decreed and plaintiff’s right, title and possession was declared on compromise between the parties and in the present suit, the present opposite party No.1 prayed for declaring the aforesaid decree as null and void as it had been obtained by practicing fraud and he had not put his signature in the said compromise petition and had also not executed the Vakalatnama. The law is well settled that a person who sets the law in motion and seeks a relief before the Court, must necessarily be in a position to prove his case and get the relief moulded by the law. The right to begin is to be determined by the rules of evidence. As a general rule, the party on whom the burden of proof rests should begin. In no case, the plaintiff can be al¬lowed to take any undue advantage over the defendant, whatever may be the position or stand the defendant takes, for the very reason that the defendant is expected to answer the claim made by the plaintiff in the suit. In the wording “unless the defendant admits the facts alleged” occurring in Order 18, Rule 1, C.P.C., the word “facts” means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin. In the wording “unless the defendant admits the facts alleged” occurring in Order 18, Rule 1, C.P.C., the word “facts” means all the materials facts. Thus, where a defendant admits only some of the facts alleged by the plaintiff, there the plaintiff should begin. As the plaintiff has raised the question of fraud to have been practised on him, it is he who should begin first, as per the provision contained in Order 18, Rule 1, C.P.C. In the present case, the defendants have taken the plea of previous partition. In order to prove their plea, they have to begin first and thereafter the plaintiff is to adduce rebuttal evidence. In the present case as the plaintiff-opposite parties have alleged fraud, they have to first establish that fraud had been practised and thereafter the defendant has to adduce rebuttal evidence. The defendants only admit a part of the allegation of the plaintiff regarding earlier partition. The learned counsel appearing for opposite party No.1 cited a decision of this Court in the case of Purastam alias Purosottam Gaigouria and others v. Chatru alias Chatrubhuja Gaigouria, 1992 (I) OLR 72, where it has been held that in a suit for partition on the ground of joint family property where the defendant’s plea is previous partition, the defendant has to begin adducing evidence first as he has pleaded regarding previous partition. But, in the case at hand, the facts are different. The aforesaid decision is thus not applicable to the present case as in the reported decision, there was no plea of fraud. Therefore, the impugned order dated 20.5.2008 passed by the learned Second Additional Civil Judge (Senior Division), Cuttack in C.S. No.148 of 2006 and direct the trial Court that the plain¬tiff shall begin his case as he has taken the plea of fraud and thereafter the defendants shall adduce rebuttal evidence. With the above observation and direction, the writ applica¬tion as well as Misc. Case No.9132 of 2008 is disposed of. Urgent certified copy of the order be granted as per rules. Application disposed of.