Orissa High Court
Sao No.8 0F 202 vs Unknown on 13 January, 2021
SAO NO.8 0F 2020
03. 13.01.2021 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
2. Heard Mr. Ramakanta Mohanty, learned Senior
Advocate along with Mrs. Sumitra Mohanty, learned
counsel appearing for the appellant.
3. The appellant in this appeal seeks to assail the
judgment and order dated 13.07.2020 passed by
learned 1st Addl. District Judge, Rourkela in RFA No. 1
of 2017, whereby he set aside the judgment and decree
dated 10.11.2016 passed by learned Civil Judge
(Senior Division), Rourkela in C.S. No. 7 of 2007 and
remitted the matter back to the trial court for fresh
adjudication by admitting the order passed in RMC
No. 37 of 1966-67 into evidence on behalf of the
plaintiff.
4. Mr. Mohanty, learned Senior Advocate appearing
for the appellant submits that C.S. No. 7 of 2007 was
filed for a declaration that the defendants have no
right, title or interest over eight feet width Gali and the
brick work boundary wall running North to South
standing on Sabik Plot No. 463, Khata No.2
corresponding to Hal Plot No. 475(P) and 475/1226
under Khata No. 386. During pendency of the suit,
the plaintiff intended to mark the order passed in RMC
No. 37 of 1966-67 as exhibit on his behalf.
Accordingly, the plaintiff filed a petition to admit the
order passed in RMC No. 37 of 1966-67 in evidence,
which was rejected on 04.01.2016. Assailing the
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same, the plaintiff approached this Court in CMP No.
260 of 2016, which was disposed of vide order dated
30.03.2016 with a direction to the trial court that the
order passed in RMC No. 37 of 1966-67 shall be
admitted and marked as Ext. on admission. But the
plaintiff for the reasons best known to him did not
pray to admit the said order as exhibit and the trial
court proceeded to decide the suit and dispose of the
same vide judgment and decree dated 10.11.2016 in
absence of the said order passed in RMC No. 37 of
1966-67. Assailing the same, the plaintiff preferred
RFA No. 1 of 2017, which came to be disposed of on
13.07.2020 by remitting the matter back to the trial
court with the observation as aforesaid.
5. He further submits that learned trial court might
have committed error in not admitting the order
passed in RMC No. 37 of 1966-67 as exhibit but that
cannot be a ground to remit the matter back to the
trial court. It is his submission that the document is
very much available on record and the parties to the
suit do not dispute the genuineness of the same. Thus,
learned appellate court could have admitted it as
evidence and decided the matter on merit. Learned
appellate court should not have remitted the matter
back to the trial court for admitting the document on
evidence. He further submits that learned appellate
court without setting aside the judgment and decree
passed in C.S. No. 7 of 2007 could have also directed
the trial court to mark the order passed in RMC No. 37
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of 1966-67 as evidence and send the said case record
to the appellate court for adjudication. It is his
submission that the case of the plaintiff does not fall
under any of the provisions of Order XLI Rule 23A and
Rule 25 C.P.C. In that view of the matter, he prays for
setting aside the impugned order and to remit the
matter back to the appellate court for fresh
adjudication on merit by admitting the aforesaid order
as evidence.
6. Heard Mr. Mohanty, learned Senior Advocate for
the appellant and perused the materials on record.
7. On earlier occasion, this Court on consideration
of materials available on record and taking into
consideration the submissions of learned counsel for
the parties in its order dated 30.03.2016 had directed
learned trial court to admit the order passed in RMC
No. 37 of 1966-67 as exhibit and to proceed with the
matter. Learned trial court without complying with
the said direction proceeded to dispose of the suit.
When this Court had directed to admit the order
passed in RMC No. 37 of 1966-67 into evidence on
admission, learned trial court could not have over-
looked the same and proceeded to dispose of the suit.
As such, the plaintiff being aggrieved had filed RFA No.
1 of 2017.
8. When a document is directed to be marked as
exhibit by this Court was not considered by learned
trial court and it proceeds to decide the suit, the
judgment and decree will be based on insufficient
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evidence. Thus, the case is squarely falls under Order
XLI Rule 23(A) C.P.C.. Learned appellate court,
therefore, has not committed any error in remitting the
matter back to the trial court for admitting the order
passed in RMC No. 37 of 1966-67 into evidence and to
proceed with the matter in accordance with law.
Learned appellate court cannot proceed with the
matter under Rule 24 as the evidence on record is
insufficient for adjudication. Accordingly, the SAO
being devoid of any merit stands dismissed.
9. It is, however, made clear that the trial court
cannot receive any further evidence either oral or
documentary save and except the order passed in RMC
No. 37 of 1966-67 into evidence on admission and
shall proceed to decide the suit on the materials
available on record. Learned trial court shall do well
to make an endeavour to decide the suit as
expeditiously as possible preferably within a period of
two months from the date of production of an
authenticated copy of this order downloaded from the
website of the Orissa High Court, giving opportunity of
hearing to the parties to the suit, if there is no legal
impediment.
10. Authenticated copy of this order downloaded
from the website of this Court shall be treated at par
with certified copy in the manner prescribed in this
Court's Notice No.4587 dated 25.03.2020.
................................
bks K.R. Mohapatra, J.
