Remanded

Bhagabata Seva Sangh v. Gopabandhu Biswal

Orissa HC19 Jul 2019SAO/3/2006

Case brief

AI extract

What is this about?

This High Court found that a remand order by the lower appellate court was unsustainable due to the absence of a finding on material availability for specific issues. The matter was remanded back to the lower appellate court to first determine if material exists to decide issues 9 and 10 before proceeding appropriately.

What did the court decide?

The matter was remanded back to the lower appellate court to first determine the availability of material on issues 9 and 10.

Bhagabata Seva Sangh Vs Gopabandhu Biswal — Constitutional and Fundamental Rights | Orissa HC (2019)

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SAO NO.3 OF 2006

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12 19.7.2019 Heard Sri D.Mohapatra, learned counsel for the appellant and Sri M.K.Mishra, learned senior counsel for the respondent.

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Remand order passed by the Additional District Magistrate, Bolangir is under challenge in this writ petition. It is contended by Sri D.Mohapatra, learned counsel for the appellant that while remanding the matter for adjudication on issue nos.9 & 10, the Additional District Magistrate was required to first determine as to whether there is material available or not to take a decision on issue nos.9 & 10 involved therein and as a consequence of finding on the above, order remanding would have been passed. For having not given such finding, Sri Mohapatra, learned counsel for the appellant submitted that the lower appellate authority went wrong in remitting the matter back to the trial court without giving required findings.

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Learned counsel for the respondent taking this Court to the plea submitted that there are no materials available on issue nos.9 & 10 and thus there is right direction in remanding the matter.

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Considering the rival contentions of the parties and for the settled position of law in the matter of remand to the trial court inasmuch as the remand order is available to a court only, in the event and after coming to observe that there is no material to decide such issue available before the appellate authority and determination of such issues required fresh evidence and finding thereon and there being no finding to this effect by the lower appellate court, while remanding the matter, this Court finds, the impugned order is not sustainable in the eye of law.

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In such view of the matter, this Court interfering in the impugned order of the lower appellate court remands the matter back to the lower appellate court directing it for re-adjudicating R.F.A. No.37/20 of 04-05. While proceeding to decide the matter, the lower appellate court will be required to first determine as to whether there is material involving issue nos.9 & 10 already there available through the trial court proceeding or not and proceed accordingly.

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The SAO succeeds but however with an order of

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remand to the lower appellate court.

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Issue urgent certified copy.

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…………………………

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Biswanath Rath, J.

Bhagabata Seva Sangh v. Gopabandhu Biswal

Case brief

What is this about?

What did the court decide?

Bhagabata Seva Sangh v. Gopabandhu Biswal

Case brief

What is this about?

What did the court decide?

What the court decided

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