Susama Palei Vs Sanatan Behera

Instant appeal is filed by the appellant challenging the impugned judgment dated 24^th September, 2012 passed in connection with R.F.A. No.11 of 2009 by the learned Additional District Judge, Khurda on the grounds stated.

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The appellant is the plaintiff in the suit i.e. C.S. No.20 of 2007 and was instituted against the respondents for permanent injunction and ultimately decreed vide judgment dated 7^th March, 2009 by the Court of learned Civil Judge (Junior Division), Khurda. Being aggrieved of the judgment and decree in the suit, the respondents preferred appeal in R.F.A. No.11 of 2009 and therein, the remand has been directed with additional issues being framed. Such an order of

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remand by the learned Trial Court is under challenge at the behest of the appellant.

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Mr. Mishra, learned Senior Advocate for the appellant submits that no case for remand is made out and the impugned decision of the learned Court below is not consistent with Order 41 Rules 23, 23A and 25 CP.C. It is submitted that the additional issues are covered by the decision in the suit and it has been taken cognizance of in issue Nos.1, 2 & 7 while dealing with the sale deeds executed in favour of the respective parties. The further submission is that the learned Court below could not have remanded the matter back for the Court of first instance having not considered the evidence in its proper perspective. The contention is that the Court in appeal is a Court of fact and law and hence, such remand is not permissible and particularly having not made out a case in terms of Order 41 Rule 25 CPC. If at all any such issue or issues as the case may be to be formulated by the learned Court below, it could have directed the learned Civil Judge (Junior Division), Khurda to receive and resubmit the same for disposal of the appeal on merit but such an exercise was not undertaken instead it has been followed by a remand, therefore, the impugned judgment in R.F.A. No.11 of 2009 is liable to be interfered with and set aside followed by consequential directions issued.

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Perused the judgment in C.S. No.20 of 2007, wherein, one of the issues was, whether, the registered sale deed dated 6^th December, 2006 was executed in favour of the plaintiff to be void and while considering the same along with issue Nos.1 &

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2 on the ownership of the appellant, it has been held and concluded that Exts. A & B which are the sale deeds executed in favour of the parties do not relate to the suit schedule property thus negating the plea of the respondents and the claim that it was purchased by them. No such decision has been tendered by the learned Court below on such finding in the suit. As such, the respondents did not have a counter claim in respect of the suit schedule property. As far as the issues involved, the Court finds that the learned Civil Judge (Junior Division), Khurda, while dealing with the alleged purchases made by the parties, held and concluded that the same do not tally at all. Under such circumstances, the Court is of the view that it was not right and justified on the part of the learned Court below to direct a remand as the evidence on record is sufficient enough to decide the rights of the parties in respect of the suit schedule property.

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Law is well settled that in case of remand, there has to be compliance of the provisions of Order 41 CPC. In so far as Rule 23 of Order 41 is concerned, it relates to a preliminary issues involved and remand, whereas, in respect of the all the issues decided, Rule 23A applies but as regards the remand with any such additional issues formulated, the Court in appeal is required to comply Rule 25 thereof. In the case at hand, the additional issues formulated on the point whether a portion of the suit land purchased by the appellant lies within the area of the land claimed to have been acquired by the respondents. In fact, the learned Civil Judge (Junior Division), Khurda considered the sale deeds and ultimately reached at the

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conclusion that the same do not tally with reference to the suit schedule land and the same having not been set aside, such a finding with additional issues formulated by the learned Court below followed by remand, in the considered opinion of the Court, is not sustainable under law. In fact, Order 41 Rule 25 stipulates that any such remand is permissible provided an issue is not framed in the suit and in case it is formulated, the directions would be for receiving evidence in appeal by the Court of first instance and to resubmit the same. But, in the instant case, the learned Court below did not consider receiving any such evidence with additional issues formulated, hence, this Court is of the view that there was no need for any such remand all the more when the evidence is already on record and received by the Court of first instance in the suit. In other words, the conclusion the Court is of the view that no case of remand is made out and it was, hence, for the learned Court below to dispose of the appeal on merit taking into account the evidence adduced by both sides. If at all it was realized by the learned Court below to have additional issues, the procedure as prescribed under Order 41 Rule 25 CPC was to be followed but the same has not been resorted to. Having said that, the Court, in ultimate analysis, reaches at a conclusion that the impugned judgment in R.F.A. No.11 of 2009 is needed to be set at naught with a direction to the learned Court below to rehear the parties and to dispose of the appeal in accordance with law.

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Hence, it is ordered.

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In the result, the appeal stands allowed. As a necessary corollary, the impugned judgment in R.F.A No.11 of 2009

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dated 24^th September, 2012 is hereby set aside with the proceeding restored to file followed by a direction to the learned Additional District Judge, Khurda to dispose of the appeal on merit after providing an opportunity of hearing to the parties in the suit.

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In the circumstances, there shall be no order as to costs.

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(R.K. Pattanaik) Judge

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Alok

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Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 27-Sep-2025 15:14:41

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Susama Palei v. Sanatan Behera

Case brief

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Susama Palei v. Sanatan Behera

Case brief

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