Orissa High Court
Gostha Bihari Roul vs D.F.O. on 1 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
SAO No.10 of 2007
Gostha Bihari Roul .... Appellant
-versus-
D.F.O., Mangrove Forest .... Respondents
Division (W.L), Rajnagar
& Ors.
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
01.02.2023
Order No
11. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. R.K. Mohanty, learned Sr. Counsel along with Ms. S.
Mohanty, learned counsel for the Appellant and Mr. M.K.
Balabantaray, learned AGA appearing for the Respondents.
3. This appeal has been filed challenging the Judgment and decree
dtd.01.03.2007 passed by the learned Addl. District Judge,
Kendrapara in RFA No. 21 of 2005, whereby learned 1st Appellate
Court remanded the matter for fresh adjudication in accordance
with law.
4. Ms. Mohanty, learned counsel for the Appellant contended that
the present Appellant as Plaintiff filed a suit in T.S. No. 66 of 1991
before the learned Civil Judge (Jr. Division), Kendrapara and the
said suit was decreed vide Judgement and decree dtd.23.12.1998. It
is also contended that against the said Judgment and decree, the
present Respondent Nos. 2 & 3 though preferred an appeal in Title
// 2 //
Appeal No. 38 of 2004, but the said appeal was dismissed on the
ground of limitation.
5. Even though the present Respondent No. 1 was not a Party to the
suit, but Respondent No. 1 preferred the appeal in question in RFA
No. 21/2005 and while filing such an application no leave was
sought for by the Respondent No. 1 to prosecute the appeal.
Accordingly, it is contended that in absence of any application for
leave to appeal, the appeal in question should not have been
entertained with passing of the order in question.
6. Mr. Balabantaray, learned AGA on the other hand contended that
by the time the suit was filed in the year 1991, the suit land was
coming within the jurisdiction of Collector, Cuttack. But after
bifurcation of the district in the year 1993 the suit land comes
within the jurisdiction of Collector, Kendrapara and the Appellant
herein never take any step to implead the Collector, Kendrapara as
a Party to the proceeding. In absence of that, the Judgment and
decree passed in favour of the Appellant-Plaintiff is not sustainable
in the eye of law. Learned AGA further contended that the suit land
belongs to Forest Department and the Forest Department was never
impleaded as a Party to the suit. Therefore, Respondent No. 1
preferred the appeal in question challenging the Judgment and
decree along with an application seeking leave to appeal. Learned
Appellate Court after due consideration of the matter remanded the
suit for fresh trial and learned 1st Appellate Court has not
committed any illegality or irregularity by remanding the matter for
fresh adjudication in accordance with law.
7. Having heard learned counsel for the Parties and after going
through the materials available on record, this Court finds that the
present Respondent No. 1 was never a party to the proceeding in
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T.S. No. 66 of 1991. Therefore, while preferring an appeal, the
Respondent No. 1 should have filed an application seeking leave to
appeal against the impugned Judgment and decree passed in T.S.
No. 66 of 1991 This Court further finds that the Appellate Court
while remanding the matter has not indicated under which provision
of law the said order of remand has been passed.
8. However, taking into account the submissions made by the
learned counsel appearing for the Parties that the 1st Appellate
Court be directed to decide the appeal on merit instead of
remanding the same for fresh trial, this Court while setting aside the
Judgment and decree dtd.01.03.2007 passed in RFA No. 21 of
2005, directs the learned 1st Addl. District Judge, Kendrapara to
decide the appeal on merit. This Court further directs the learned
Court below to decide the appeal within a period of 6 (six) months
from the date of receipt of this order, if there is no other legal
impediment. The Parties herein be also given opportunity to adduce
any evidence in support of their respective stand.
9. The appeal is disposed of accordingly.
(Biraja Prasanna Satapathy)
Judge
Sneha
