Page No.# 1/13 vs Prakash Bhagawati
2025 Latest Caselaw 5764 Gua

Gauhati High Court

Page No.# 1/13 vs Prakash Bhagawati on 26 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                               Page No.# 1/13

GAHC010137792025




                                                          2025:GAU-AS:8732

                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : CRP/86/2025

          HEM CHANDRA BORA
          S/O- LATE PHANIDHAR BORA,
          R/O- PATIA CHUBURI, HALLESWAR, SONITPUR ASSAM



          VERSUS

          PRAKASH BHAGAWATI
          S/O-, LATE BINOD BHAGAWATI, R/O- DEKARGAON,
          HALLESWAR, SONITPUR, ASSAM




                                       BEFORE
                HON'BLE MR. JUSTICE DEVASHIS BARUAH

Advocates for the petitioner(s)    :    Mr. S Biswas

Advocates for the respondent(s) :

Date of hearing & judgment        :     26.06.2025


                                  JUDGMENT & ORDER(ORAL)

Heard Mr. S Biswas, the learned counsel appearing on behalf of the

petitioner.

Page No.# 2/13

2. The instant petition is taken up for disposal at the motion stage

itself.

3. The petitioner herein has assailed the judgment and decree dated

11.04.2025 passed by the Court of the learned Civil Judge, (Junior

Division) No. 1, Sonitpur, Tezpur in Title Suit No. 28/1997 on the

ground that the said judgment and decree is in contravention to the

provisions of Order XLI Rule 25 of the Code of Civil Procedure, 1908

(for short, 'the Code'). In addition to that, the petitioner has also

assailed the order dated 20.04.2018 passed by the Court of the

learned Civil Judge, Sonitpur Tezpur in Title Appeal No.5/2001. The

petitioner has also sought for directions upon the learned First

Appellate Court to restore the Title Appeal being Title Appeal

No.5/2001 and pass appropriate orders in accordance with the

provisions of Order XLI Rule 25 of the Code.

4. It is seen from the materials on record that the respondent

herein as plaintiff had filed a suit being Title Suit No.28/1997 claiming

his right, title and interest over the suit land as well as for Page No.# 3/13

consequential reliefs. The suit was dismissed by the Court of the

learned Civil Judge (Junior Division) No.1, Sonitpur vide the judgment

and decree dated 30.09.2000.

5. Being aggrieved, the plaintiff preferred an appeal being Title Appeal

No.5/2001 before the Court of the learned Civil Judge, Sonitpur. The

said appeal was dismissed vide a judgment and decree dated

13.12.2006 thereby confirming the judgment and decree passed by

the learned Trial Court.

6. The plaintiff/respondent herein thereupon preferred a second

appeal before this Court which was registered and numbered as RSA

No.35/2007. This Court vide the order dated 15.02.2017 set aside the

judgment and decree passed by the learned First Appellate Court on

the ground of non-compliance to the provisions of Order XLI Rules 31

and 33 of the Code. Paragraphs 17 and 18 of the order passed by this

Court in RSA No.35/2007 being relevant are reproduced hereinunder:

"17. Considering the same, this Court decide the substantial question of law in favour of the plaintiff/appellant and accordingly set aside the judgment and decree passed by the first appellate court and remand the same for passing fresh judgment and decree within the parameter of order XLI Rules 31 and 33of the CPC.

Page No.# 4/13

18. The learned first appellate court shall dispose of the said matter after hearing the parties afresh preferably within a period of three months from the date of receipt of the LCR. It is also pertinent to mention herein that the learned first appellate court will issue notice to the parties concerned fixing a date for hearing."

7. From a perusal of the above-quoted paragraphs, it would be seen

that the learned Coordinate Bench of this Court had set aside the

judgment and decree passed by the learned First Appellate Court and

remanded the same for passing a fresh judgment and decree within

the parameters of Order XLI, Rule 31 and 33 of the Code. In addition

to that, there were specific directions issued to the learned First

Appellate Court to dispose of the said matter after hearing the parties

afresh, preferably within a period of three months from the date of

receipt of the LCR.

8. The records further reveal that thereupon the appeal was taken

up for disposal by the learned First Appellate Court vide an order

dated 20.04.2018, the learned First Appellate Court remanded the suit

back to the learned Trial Court to pass a fresh judgment in the suit in

view of the new issue framed and additional evidence to be led (if

any).

Page No.# 5/13

9. It is very relevant at this stage to take note of that the learned

First Appellate Court was of the opinion that from the materials on

record, it transpired that the plaintiff on one hand claimed that he

purchased the suit land from Sri Phanidhar Das and Tankeshwar Das

in 1996 by a registered sale deed and took possession. Further to that

from the evidence, the learned First Appellate Court came to a finding

that subsequently the suit land was attached by the police and paddy

was sold in auction based on the proceedings under Section 145/146

of the Cr.P.C., instituted by the defendant, Phanidar Bora and the

proforma defendant Nos. 1 and 2 and the plaintiff preferred a revision

and the learned Sessions Judge, Sonitpur set aside the order in a

proceedings under Section 145/146 of the Cr.P.C. It was further

observed by the learned First Appellate Court that when the plaintiff

went to plough the suit land, the defendant did not allow him to do so

and, therefore, the suit was filed praying for declaration of the

plaintiff's right, title and interest over the suit land and for eviction of

the defendant No.1 from the same.

Page No.# 6/13

10. On the other hand, it was also the observation of the learned First

Appellate Court based on evidence that it was the case of the

defendant that the suit land and the land attached under Section

145/146 of the Cr.P.C are not the same land, and, therefore, taking

into account the contrary stand taken by both the parties, the learned

First Appellate Court was of the opinion that it was essential to

determine whether the suit land and the land which was under

consideration in the proceedings under Sections 145/146 Cr.P.C are

one and the same or not was required to be determined, and,

therefore, framed a fresh issue to be Issue No.7, which reads as

under:

"Issue No.7: Whether the suit land is one and the same as the land

attached in the proceeding under Section 145/146 Cr.P.C?"

11. The learned First Appellate Court further was of the opinion that

for proper adjudication, it is essential to remand back the case to the

learned Trial Court to give opportunity to both the parties to lead

evidence on the issue and to direct Survey Commission, if required.

Page No.# 7/13

The learned First Appellate Court further specifically directed the

learned Trial Court to pass a fresh judgment in the suit in view of the

new issue and the additional evidence led and the appeal was

accordingly disposed of.

12. In this context, the learned counsel appearing on behalf of the

petitioner submitted that having framed a fresh issue, and directions

being issued to the learned Trial Court to adjudicate can only be done

in exercise of the powers under Order XLI Rule 25 of the Code and,

therefore, there was an error on the part of the learned First Appellate

Court to remand the entire suit back to the learned Trial Court. Rather,

the learned First Appellate Court ought to have kept the appeal

pending and upon the findings, being placed, the learned First

Appellate Court ought to have decided the appeal.

13. In the opinion of this Court, the said submission is misconceived,

taking into account the observations so made by the learned First

Appellate Court on the basis of the evidence as is reflected in

Paragraph 6 of the order passed by the learned First Appellate Court.

Page No.# 8/13

Further to that, it is a well-settled principle of law that the appeal is a

continuation of the suit, and, therefore, there is no bar on the part of

the learned First Appellate Court to frame a fresh issue and

remanding the suit back to the learned Trial Court. It is further seen

that the learned First Appellate Court had remanded the case back to

the learned Trial Court and categorically observed that the learned

Trial Court is required to pass a fresh judgment in the suit in view of

the new issue and additional evidence to be led. The learned First

Appellate Court had also disposed off the Appeal meaning thereby

that the learned First Appellate Court exercised jurisdiction under

Order XLI Rule 23A of the Code and not Order XLI Rule 25 of the

Code. It is also relevant to observe that if the learned First Appellate

Court had remanded the case back to the learned Trial Court for a

decision afresh on the basis of the new issue and additional evidence,

the said aspect is appealable under Order XLIII Rule 1(u) of the Code.

14. It is further relevant to take note of the submissions made by

the learned counsel appearing on behalf of the petitioner that the Page No.# 9/13

learned First Appellate Court having not set aside the judgment and

decree dated 30.09.2000 passed in Title Suit No.28/1997 and had

merely remanded the case back to the learned Trial Court, the appeal

would be deemed to be pending. In the opinion of this Court, the said

submission is misconceived and untenable, that too, when the learned

First Appellate Court categorically remanded the suit back to the

learned Trial Court and specifically directed to pass a fresh judgment.

The order of remand so made in the present facts and circumstances

would clearly show that the order of remand and thereupon a

direction being issued for passing a fresh judgment, the impugned

judgment and decree dated 30.09.2000 passed in Title Suit

No.28/1997 was interfered with. In this regard, this Court finds it

relevant to take note of the effect of remand as observed by the

Supreme Court in the case of United Bank of India, Calcutta Vs.

Abhijit Tea Co. Pvt. Ltd and Others reported in (2000) 7 SCC 357.

Paragraph 16 of the said judgment being relevant is reproduced

hereinbelow:

Page No.# 10/13

"16. But, it is now well settled that an order of remand by the appellate court to the trial court which had disposed of the suit revives the suit in full except as to matters, if any, decided finally by the appellate court. Once the suit is revived, it must, in the eye of the law, be deemed to be pending -- from the beginning when it was instituted. The judgment disposing of the suit passed by the Single Judge which is set aside gets effaced altogether and the continuity of the suit in the trial court is restored, as a matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise serious questions as to limitation would arise. In fact, if any evidence was recorded before its earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of (subject to any adjudication which has become final, in the appellate judgment). The position could have been different if the appeal was disposed of once and for all and the suit was not remanded."

15. Therefore, from the law as laid down by the Supreme Court, it is clear that when the Appellate Court remands the case back to the learned Trial Court, nothing remains in the Appeal and save and except what is decided in the Appeal and attained finality, the learned Trial Court has to decide afresh.

16. Under certain circumstances, on merits, there arises no question

for interfering with the order dated 20.04.2018 passed in Title Appeal

No.5/2001.

17. This Court further finds it relevant to take note of that the order

dated 20.04.2018 in Title Appeal No.5/2001 was passed and there

was no challenge to this order at any point of time till filing of the

present proceedings after 7(seven) years that too, after the petitioner Page No.# 11/13

herein had duly participated in the Trial Court, knowing fully well the

judgment and order dated 20.04.2018, passed in Title Appeal

No.5/2001 directing the learned Trial Court to decide a fresh the suit

by passing a fresh judgment by taking into account the additional

issue and the evidence. On this aspect also, the question of

interference with the order dated 20.04.2018 passed in Title Appeal

No.5/2001 does not arise.

18. Now, let this Court take into account the judgment and decree

dated 11.04.2025 passed by the learned Trial Court which had also

been assailed before this Court under Article 227 of the Constitution.

This Court finds it very relevant to take note of the judgment of the

Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma

Paribalana Sabai and Others Vs. Tuticorin Educational Society and

Others reported in (2019) 9 SCC 538, wherein the Supreme Court

categorically observed that when the Code of Civil Procedure had

provided an appellate forum, the question of exercising jurisdiction

under Article 227 of the Constitution does not arise. Paragraph Nos.

Page No.# 12/13

12 and 13 of the said judgment being relevant are quoted

hereinunder:

"12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3- member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, pointed out in Radhey Shyam v. Chhabi Nath that "orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts".

13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."

19. In the instant case, it would be seen that an appeal lies

under Section 96 read with Order XLI of the Code against the

judgment and decree dated 11.04.2025 passed in Title Suit Page No.# 13/13

No.28/1997. Taking into account the judgment passed by the

Supreme Court as quoted hereinabove, the question of

entertaining the challenge to the impugned judgment and decree

dated 11.04.2025 in Title Suit No.28/1997 under Article 227 of the

Constitution does not arise.

20. Accordingly, the instant petition stands dismissed.

JUDGE

Comparing Assistant