Kokila Kumari Moharana & vs Gopal Panda
2022 Latest Caselaw 7233 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  SAO No.07 of 2014

           Kokila Kumari Moharana &           ....           Appellants
           Ors.
                                           -versus-

           Gopal Panda                        ....           Respondent


                               CORAM:
                  JUSTICE BIRAJA PRASANNA SATAPATHY

                                        ORDER

09.12.2022 Order No

06. 1. This matter is taken up through Hybrid Arrangement

(Virtual/Physical) Mode.

2. This Second Appeal has been filed against the order

dtd.13.03.2014 passed by the learned District Judge, Nayagarh in

RFA No. 04 of 2012.

3. The Appellants herein are the plaintiffs in Civil Suit No. 14 of

2002 and Respondent in RFA No. 4 of 2012. The Respondent in the

present appeal is the defendant in the Suit and Respondent in the

first appeal.

4. Civil Suit No. 14 of 2002 was filed by the present Appellants

seeking declaration of right title interest and confirmation of

possession over the suit land and for permanent injunction against // 2 //

the defendant restraining him in interfering with the peaceful

possession of the Appellant over the suit land. The said suit when

was decreed as against the Respondent on contest vide Judgment

and decree dtd.27.12.2011, the present Respondent filed RFA No. 4

of 2012 before the learned District Judge, Nayagarh. Learned 1st

Appellate Court vide its Judgment dtd.13.03.2014 when remanded

the suit to the learned lower court for deciding the suit afresh by

giving opportunity of hearing to both the Parties and to adduce

evidence on their respective stand point by framing additional

issues, the said Judgment is under challenge in the present appeal.

5. It is the main contention of the learned counsel for the Appellants

herein is that the order of remand passed by the learned 1st

Appellate Court taking recourse to the provision contained under

Order 41 Rule 23 of the C.P.C. is not permissible. It is also

contended that since the appeal was remanded with framing of

additional issues by the learned 1st Appellate Court, the same

should not have been remanded taking recourse to the provision

contained under Order 41 Rule 23 of the C.P.C. Since the order of

remand with framing of additional issues is not contemplated under

Order 41 Rule 23 of the C.P.C., the said order of remand passed by

// 3 //

the learned 1st Appellate Court cannot sustain legal scrutiny and

liable for interference of this Court.

6. Learned counsel for the Appellants brought to the notice of this

Court the provision contained under Order 41 Rule 23 vis-à-vis

Order 41 Rule 23-A and Order 41 Rule 25 of the C.P.C. The

relevant provisions contained under Order 41 Rule 23, Rule 23-A &

Rule 25 are reproduced hereunder.

"23. Remand of case by Appellate Court.- Where the Court from whose so far as they can be decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re- admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

XXX XXX XXX XXX

23-A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

              XXX            XXX             XXX            XXX




                                   // 4 //

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore [within such time as may be fixed by the Appellate Court or extended by it from time to time."

7. It is contended that since no order of remand can be passed by

the learned 1st Appellate Court with framing of additional issues

under Order 41 Rule 23 of the C.P.C., the said order of remand so

passed vide the impugned order cannot sustain legal scrutiny and

liable to be set aside.

8. Mr. Amitav Tripathy, learned counsel for the Appellants in

support of his aforesaid stand also relied on a decision of this Court

passed in the case of Rushi & Ors. Vs. Madan Behera & Ors. (AIR

1986 Ori 207). In the said reported Judgment this Court in Para 8

has held as follows:-

"8. Order 41, Rule 23, C.P.C., provides for remand by the appellate court where the trial court disposed of a suit on a preliminary issue.

Order 41 Rule 25, C.P.C., authorizes remand on specific issue only

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where the finding on the issue is to be returned to the appellate court for disposal. Order 41, Rule 23A, C.P.C., envisages remand after reversal of a decree by the appellate court. Where the appellate court clearly expresses:

"....... Therefore, without expressing any opinion on the evidence adduced by the parties, on the different issues framed in the suit, I am inclined to send back the record to the lower Court for fresh disposal in the light of the observations made above......."

It is not reversal of a decree merely because the decree is set aside. The appellate court is required first to make the endeavour to answer the disputed finds and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be, remembered that early conclusion of a 'lis' on merit is the public policy. In the name of 'ends of justice' or 'proper adjudication' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. I may not be understood to express that the appellate court has no power to remand on the facts of this case. It should have first assessed the evidence and dealt with the finding and then given the reason why it would not be in a position to give a finding. In that case only an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the Court. Merely because a power is vested, the appellate court is not to exercise it as it desires."

9. It is accordingly contended that in view of the provision

contained under Order 41 Rule 23 and the decision as cited (supra)

the order of remand passed by the learned 1st Appellate Court with

framing of additional issues is not permissible.

// 6 //

10. Mr. S.N. Mohapatra, learned counsel for the Respondent on the

other hand submitted that though under Order 41 Rule 23 learned

1st Appellate Court is not permitted to pass an order of remand with

framing of additional issues and it should have been either under

Order 41 Rule 23(A) or under Order 41 Rule 25, but on such

technical grounds, the order of remand passed by the learned 1st

Appellate Court is not to be interfered with by this Court. Since

learned 1st Appellate Court prima facie found that some relevant

issues have not been framed, therefore, while remanding the matter

with framing of additional issues, the matter was remanded vide the

impugned order dtd.13.03.2014.

11. Mr. Mohapatra, learned counsel for the Respondent in support

of his aforesaid stand relied on a decision of this Court passed in the

case of Shri Mahadev Bisi & Ors. Vs. Niranjan Bisi (2004 SCC

Online Ori 189). This Court in Para 8 to 10 and 12 of the said

Judgment has held as follows:-

"8. A reading of Rules 23, 23(A) and 25 of Order 41 of the CPC shows that under Rule 23, when a suit has been disposed of on a preliminary point and the decree is reversed in appeal, the learned appellate Court, if it thinks fit, may remand the case in its entirety for fresh disposal on other issues by readmitting the suit under Rule 23(A), when an appeal is preferred from a decree by which the suit has been disposed of otherwise than on a preliminary point and the

// 7 //

decree is reversed in appeal and retrial is considered necessary, the appellate Court may remand the whole suit for fresh disposal. However, under Rule 25, when the trial Court omits to frame or try any issue, or determine any question of fact, which appears to the appellate Court essential for the right decision of the suit, the appellate Court, if necessary, can frame issues and refer the same for trial to the original Court and in such case the appellate Court shall direct such Court to take additional evidence, as required. On such remand, the trial Court shall proceed to try such issue and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefore, within such time as may be fixed by the appellate Court or extended by it from time to time.

9. Thus, in view of the above provisions of the Code of Civil Procedure and on examining the impugned judgment, I find that the learned lower appellate Court was in error in remanding the suit in its entirety for fresh disposal though a specific issue has been framed by the lower appellate Court, as it felt necessary that such issue is required to be determined for the right decision of the suit. Such procedure is not prescribed under any of the aforementioned rules.

10. Thus even though no appeal can be preferred against an order of remand under Rule 25 of Order 41 of the CPC but since the impugned judgment is not strictly in accordance with Rule 25. I am inclined to entertain this appeal.

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12. I am, therefore, of the view that the order of remand, impugned in this appeal, should be treated as an order under Rule 25 of Order 41 of the CPC. I therefore direct that the appeal be retained in the learned lower appellate Court and the learned trial Court should try the issue framed by the learned lower appellate Court in the impugned judgment, by giving opportunity to the parties to adduce evidence on the said issue and return its finding thereon and the

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reasons therefore, to the lower appellate Court. After receiving the evidence so adduced, if any, by the parties and the findings of the learned trial Court, the learned lower appellate Court should rehear the appeal and give a fresh judgment. This exercise should be completed within a period of six months from the date of receipt of this order by the trial Court and the appeal be disposed of within three months from the date of receipt of the evidence and findings of the trial Court, by the lower appellate Court. The parties are directed to appear before the learned trial Court on 21st April 2004."

12. Mr. Mohapatra also brought to the notice of this Court another

decision of the Hon'ble Apex Court in the case of ShivaKumar &

Ors. Vs. Sharanabasappa & Ors. (Civil Appeal No. 6076 of 2009)

decided on 24.04.2020. Hon'ble Apex Court in the aforesaid

decision in Para 24 and 25.4 has held as follows:-

"24. In our view, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non- compliant with the requirements of clause (b) of Section 63 of the Succession Act.

XXX XXX XXX XXX

25.4. 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 XL CPC and to determine the suit finally. It is only

// 9 //

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."

13. Making all such submissions and placing reliance on the above

noted decision of this Court as well as the Hon'ble Apex Court, Mr.

Mohapatra, learned counsel for the Respondent submitted that

though taking recourse to the provision of Order 41 Rule 23 learned

1st Appellate Court is not competent to remand the matter while

framing additional issues, but on such technicalities the order of

remand is not liable to be interfered with by this Court. Since

learned 1st Appellate Court while remanding the matter has framed

further issues and with a direction to give opportunity of hearing to

both the Parties no prejudice will be caused to the Appellants herein

and they can defend their interest before the learned trial Court.

// 10 //

14. I have heard Mr. A. Tripathy, learned counsel for the Appellants

and Mr. S.N. Mohapatra, learned counsel for the Respondent. This

Court after going through the materials available on record finds

that learned 1st Appellate Court after a vivid appraisal of the

materials placed before him was prima facie satisfied that two (2)

issues, which were relevant for a just decision has not been framed

by the learned trial Court. Therefore, learned 1st Appellate Court

thought it proper to remand the suit with a direction to frame two

(2) additional issues and to decide the suit afresh by giving

opportunity of hearing to both the Parties and with liberty to adduce

evidence on their respective stand.

15. Having gone through the decisions cited by the learned counsel

appearing for the Parties, this Court is of the view that even though

the order of remand so passed by the learned 1st Appellate Court

taking recourse to Order 41 Rule 23 is not permissible, but such

order of remand cannot be interfered with on technical grounds in

view of the decision of this Court reported in the case of Shri

Mahadev Bisi & Ors. as well as of the Hon'ble Apex Court in the

case of Shiva Kumar & Ors. as cited (supra). Therefore, this Court

in view of such position of law decided by the Hon'ble Apex Court

as well as by this Court is not inclined to interfere with the

// 11 //

impugned order. Therefore, this Court while dismissing the appeal,

directs the learned trial Court to proceed with the trial by framing

the issues so directed by the learned 1st Appellate Court. Since the

suit is of the year 2002 and the order of remand was passed on

13.03.2014, this Court directs the learned trial Court to complete

the trial afresh within a period of six (6) months from the date of

receipt of this order, if there is no other legal impediment.

16. The appeal is disposed of with the aforesaid observation and

direction.

(Biraja Prasanna Satapathy) Judge Sneha