Partly allowed

Gostha Bihari Roul v. D.F.O.Rajnagar

Orissa HC1 Feb 2023SAO/10/2007

Case brief

AI extract

What is this about?

In an appeal challenging a judgment that remanded a suit for fresh trial, the High Court found procedural flaws regarding leave to appeal and party joinder. The Court set aside the remand order and directed the lower court to decide the underlying appeal on its merits within six months. The case involves a power of appellate court discretion in following lower court appeals and ensuring proper par

What did the court decide?

Set aside the judgment and decree remanding the matter for fresh trial, and directed the learned 1st Addl. District Judge to decide the appeal on merits within six months.

Gostha Bihari Roul Vs D.F.O.Rajnagar — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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SAO No.10 of 2007

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Gostha Bihari Roul

….

Appellant

-versus-

D.F.O., Mangrove Forest Division (W.L), Rajnagar & Ors.

¶8

…. Respondents

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

ORDER

01.02.2023

Order No

11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. R.K. Mohanty, learned Sr. Counsel along with Ms. S. Mohanty, learned counsel for the Appellant and Mr. M.K. Balabantaray, learned AGA appearing for the Respondents.

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3. This appeal has been filed challenging the Judgment and decree dtd.01.03.2007 passed by the learned Addl. District Judge, Kendrapara in RFA No. 21 of 2005, whereby learned 1^st Appellate Court remanded the matter for fresh adjudication in accordance with law.

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4. Ms. Mohanty, learned counsel for the Appellant contended that the present Appellant as Plaintiff filed a suit in T.S. No. 66 of 1991 before the learned Civil Judge (Jr. Division), Kendrapara and the said suit was decreed vide Judgement and decree dtd.23.12.1998. It is also contended that against the said Judgment and decree, the present Respondent Nos. 2 & 3 though preferred an appeal in Title

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// 2 //

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Appeal No. 38 of 2004, but the said appeal was dismissed on the ground of limitation.

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5. Even though the present Respondent No. 1 was not a Party to the suit, but Respondent No. 1 preferred the appeal in question in RFA No. 21/2005 and while filing such an application no leave was sought for by the Respondent No. 1 to prosecute the appeal. Accordingly, it is contended that in absence of any application for leave to appeal, the appeal in question should not have been entertained with passing of the order in question.

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6. Mr. Balabantaray, learned AGA on the other hand contended that by the time the suit was filed in the year 1991, the suit land was coming within the jurisdiction of Collector, Cuttack. But after bifurcation of the district in the year 1993 the suit land comes within the jurisdiction of Collector, Kendrapara and the Appellant herein never take any step to implead the Collector, Kendrapara as a Party to the proceeding. In absence of that, the Judgment and decree passed in favour of the Appellant-Plaintiff is not sustainable in the eye of law. Learned AGA further contended that the suit land belongs to Forest Department and the Forest Department was never impleaded as a Party to the suit. Therefore, Respondent No. 1 preferred the appeal in question challenging the Judgment and decree along with an application seeking leave to appeal. Learned Appellate Court after due consideration of the matter remanded the suit for fresh trial and learned 1^st Appellate Court has not committed any illegality or irregularity by remanding the matter for fresh adjudication in accordance with law.

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7. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that the present Respondent No. 1 was never a party to the proceeding in

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Page 2 of 3

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// 3 //

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T.S. No. 66 of 1991. Therefore, while preferring an appeal, the Respondent No. 1 should have filed an application seeking leave to appeal against the impugned Judgment and decree passed in T.S. No. 66 of 1991 This Court further finds that the Appellate Court while remanding the matter has not indicated under which provision of law the said order of remand has been passed.

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8. However, taking into account the submissions made by the learned counsel appearing for the Parties that the 1^st Appellate Court be directed to decide the appeal on merit instead of remanding the same for fresh trial, this Court while setting aside the Judgment and decree dtd.01.03.2007 passed in RFA No. 21 of 2005, directs the learned 1^st Addl. District Judge, Kendrapara to decide the appeal on merit. This Court further directs the learned Court below to decide the appeal within a period of 6 (six) months from the date of receipt of this order, if there is no other legal impediment. The Parties herein be also given opportunity to adduce any evidence in support of their respective stand.

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9. The appeal is disposed of accordingly.

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(Biraja Prasanna Satapathy) Judge

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Sneha

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Page 3 of 3

Gostha Bihari Roul v. D.F.O.Rajnagar

Case brief

What is this about?

What did the court decide?

Gostha Bihari Roul v. D.F.O.Rajnagar

Case brief

What is this about?

What did the court decide?

What the court decided

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