Jharkhand High Court
Rajentri Tripathy Wife Of Ramesh ... vs Sushmita Bhattacharya Wife Of Samir ... on 30 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[ 2025:JHHC:13072]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 594 of 2017
Rajentri Tripathy wife of Ramesh Chandra Tripathy.
resident of Dhirendra Puram, Dhaiya, P.O., P.S. and
District Dhanbad (Jharkhand).
..... ... Appellant
Versus
1. Sushmita Bhattacharya wife of Samir Kumar
Bhattacharya.
(2) Samir Kumar Bhattacharya son of Late Dr. D.
N. Bhattacharya, both residents of Dhirendra
Puram, Dhaiya, P.O., P.S. and District Dhanbad
(Jharkhand).
..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. Sandeep Verma, Advocate.
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09/ 30.04.2025 Heard Mr. Sandeep Verma, learned counsel appearing for
the appellant.
2. Notice upon opposite parties have been effected and O.P.
No. 2 has put his appearance and filed his counter affidavit, in spite of
that neither the O.P. No. 1 nor O.P. No. 2 are present, in view of that
this appeal is being heard in absence of opposite parties.
3. This appeal has been preferred against the judgment dated
10.08.2017, passed by the learned District Judge-IV, Dhanbad, in Title
Appeal No. 148 of 2008, by which, the judgment and decree dated
13.12.2008 (decree signed on 17.12.2008) in Title Suit No. 79 of 2004,
passed by the learned Additional Civil Judge (Senior Division),
Dhanbad has been remanded back to the learned trial court.
4. Mr. Sandeep Verma, learned counsel appearing for the
appellant submits that Title Suit No. 79 of 2004 was instituted in the
court of learned Civil Judge Junior Division I, Dhanbad against the
defendant /appellant praying therein a decree for declaration that the
defendant is not legally authorised to construct septic tank or any other
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construction over the suit land and for grant of permanent injunction
restraining the defendant from making construction of septic tank or
any other construction over the suit land besides other reliefs. He
submits that the learned trial court has been pleased to reject the said
suit by the judgment dated 13.12.2008 and being aggrieved by the said
judgment, the plaintiff has preferred Title Appeal No. 148 of 2008 and
the learned appellate court by the judgment dated 10.08.2017 has been
pleased to allow the appeal and remanded the Original suit to the
learned court to decide the same afresh.
5. He further submits that the learned first appellate court has
wrongly done so, in absence of any material of remand and further the
first appellate court has not considered the admissions made by the
plaintiff to the effect that near about the land of the appellant herein, the
plaintiff was not having any land. He then submits that the learned first
appellate court has not considered this aspect of the matter when he
remanded the suit, which is against the spirit of Order-XLI Rule-24 of
the CPC. He also submits that the learned first appellate court has not
considered the documentary evidence. He submits that there is principle
of remand and if the admission itself was not correct, the first appellate
court was required to decide on merits. To buttress his argument, he
relied in the case of Shivakumar & Ors. Versus Sharanabasappa &
Ors., reported in (2021) 11 SCC 277, wherein the Hon'ble Apex Court
in para-26.4 has held as follows:-
26.4. A conjoint reading of Rules 23, 23A
and 24 of Order XLI brings forth the scope
as also contours of the powers of remand
that when the available evidence is sufficient
to dispose of the matter, the proper course
for an Appellate Court is to follow the
mandate of Rule 24 of Order XLI CPC and
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to determine the suit finally. It is only in
such cases where the decree in challenge is
reversed in appeal and a re-trial is
considered necessary that the Appellate
Court shall adopt the course of remanding
the case. It remains trite that order of
remand is not to be passed in a routine
manner because an unwarranted order of
remand merely elongates the life of the
litigation without serving the cause of
justice. An order of remand only on the
ground that the points touching the
appreciation of evidence were not dealt with
by the Trial Court may not be considered
proper in a given case because the First
Appellate Court itself is possessed of
jurisdiction to enter into facts and
appreciate the evidence. There could, of
course, be several eventualities which may
justify an order of remand or where remand
would be rather necessary depending on the
facts and the given set of circumstances of a
case.
6. Relying on the above judgment, he submits that the remand
was not required to be made in a routine manner, due to that the courts
will be further flooded with the cases. On these grounds, he submits
that this appeal may kindly be allowed.
7. It transpires that the Title Suit No. 79 of 2004 was instituted
in the court of learned Civil Judge Junior Division I, Dhanbad against
the defendant /appellant praying therein a decree for declaration that the
defendant is not legally authorised to construct septic tank or any other
construction over the suit land and for grant of permanent injunction
restraining the defendant from making construction of septic tank or
any other construction over the suit land besides other reliefs. The
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learned trial court has been pleased to reject the said suit by the
judgment dated 13.12.2008, which has been challenged before the
learned first appellate court in Title Appeal No. 148 of 2008 and the
learned appellate court by the judgment dated 10.08.2017 has been
pleased to allow the said appeal and remanded the Original suit to the
learned court to decide the same afresh.
8. It appears from the judgment of the learned first appellate
court that the learned first appellate court has considered the evidences
of the witnesses of P.Ws. and D.Ws., examined on behalf of both the
sides and has found that two pleader commissioners have been
appointed and Suresh Prasad was appointed as first survey knowing
pleader commissioner and his report was rejected on 18.02.2008,
however, he was examined and the second pleader commissioner Sri
Bhasker Chandra Sarkar was not examined, however, his report was
accepted. In view of that the learned first appellate court has found the
case of remand and considering that the said order has been passed.
9. If such a situation is there, which has not been denied by the
learned counsel appearing for the appellant, as the first pleader
commissioner report was rejected and subsequently second pleader
commissioner was appointed, however, he was not examined, but his
report was accepted and certainly the facts has not been proved by the
learned trial court and on the wrong footing, the judgment has been
passed.
10. As such, the court is in agreement with the judgment, as
relied by the learned counsel appearing for the appellant in the case of
Shivakumar (Supra) and certainly in a routine manner, the remand
order cannot be passed and non-examination of the second pleader
commissioner, who was appointed to find out the place was not
examined, in view of that the factual finding of the learned trial was not
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correct, as such, the learned first appellate court has remanded the
same. In view of that the court finds that there is no illegality in the
impugned judgment, passed by the learned first appellate court. As
such, this appeal is dismissed. The learned trial court will proceed in
accordance with law.
11. Interim order, granted earlier, stands vacated.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
