Orissa High Court
Kuber Rana And Another vs Muketshwar Dash .... Opp. Party on 21 November, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 22-Nov-2024 18:33:32
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1249 OF 2024
Kuber Rana and another .... Petitioners
Mr. Soumya Mishra , Advocate
-versus-
Muketshwar Dash .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 21.11.2024
1. 1. This matter is taken up through hybrid mode.
2. Order dated 27th September, 2024 (Annexure-6) passed
in F.A.O. No.02 of 2024 is under challenge in this CMP,
whereby learned Additional District Judge, Padampur setting
aside the order dated 20th April, 2024 (Annexure-3) passed by
learned Civil Judge (Senior Division), Padampur in I.A.No.04 of
2022 (arising out of C.S. No.79 of 2022), remitted the matter for
fresh adjudication of the petition under Order XXXIX Rules 1
and 2 of CPC giving opportunity of hearing to the parties
concerned.
3. Mr. Mishra, learned counsel for the Petitioners submits
that discussing the rival claims of the parties and case law,
learned appellate Court held that learned trial Court in its order
under Annexure-3 has discussed nothing and assigned no reason
in disposing of the I.A. Learned appellate Court has made an
open remand for fresh adjudication of the I.A. It is his further
submission that there is no finding by learned appellate Court
that materials available on record are insufficient to arrive at a
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 22-Nov-2024 18:33:32
conclusion. If further inquiry is required, learned appellate Court
before remitting the matter, has to satisfy itself that the inquiry
could not possibly be undertaken by the said Court. In the
impugned order, such an exercise appears to have not been done
by learned appellate Court.
4. In support of this submission, Mr. Mishra, learned
counsel for the Petitioners relying upon the case of Krushna
Chandra Nayak -v- Orissa Sanitary Mart: 2007 (Supp.2) OLR
360, in which at Paragraph-10, it is held as under;
"10. A remand implies setting aside the orders
passed by the inferior authority and it can be made if
the order under appeal is based on insufficient
material or that some fresh evidence has to be
considered. A remand may be proper when there is
some further enquiry to be made or some further
evidence is required to be brought on record, but a
remand is never proper for re-writing a judgment
when the judgment is found to be defectively drafted or
where all the materials were before the appellate
Court, which were sufficient to adjudicate the case. If
the materials on record are not sufficient for just
decision of the appeal and the appellate Court
considers some further enquiry necessary, which
enquiry cannot conveniently be made at the appellate
stage, the case may be remanded by the appellate
authority for conducting such enquiry for re-
determination of the case. But if the record contains
all the materials necessary for the disposal of the
matter, the appellate authority should dispose of the
matter finally instead of remanding the case to the
primary authority. This is because early disposal of a
lis is always in the best interest of the litigants and the
appellate Court being the Court enjoying the
synonymous power of the trial Court is duty bound to
adjudicate the dispute finally if it is possible from the
materials on record. This view finds support from the
observation of this Court in the cases of Harmohan
Misra and Anr. v. Anapurna Dibya and Ors. 1987
(11) OLR 157, Udayanath Pani v. State Transport
Authority, Orissa and Ors: 78 (1994) C.L.T. 696,
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 22-Nov-2024 18:33:32
Purna Chandra Mishra v Udayanath Mohanty and
Anr. 1998 (1) OLR 33, Chennuru Gouri Varaprasad
Babaji v State of Orissa and Ors.: 2005 (11) OLR
618, Giridhari Pradhai (and after him) Srimati
Pradhan and Ors. v. Lord Jagannath Mahaprabhu
and Anr.: 95 (2003) CLT 404, Vundavilli
Venkataraju v. Kora Laxman Rao and Ors.: AIR
2002 Ori 214."
He, therefore, prays for setting aside the impugned order
under Annexure-6 and to remit the matter to learned appellate Court
for the fresh adjudication of the appeal on merit.
5. Heard, learned counsel for the Petitioners and perused the
material on record.
6. After discussing the materials available and relying upon
certain case law, learned appellate Court came to a conclusion that
the matter should be adjudicated afresh by learned trial Court.
Accordingly, it set aside the order under Annexure-3 without
delving into the merits of the case. As submitted by Mr. Mishra,
learned counsel for the Petitioners, there is nothing on record to
arrive at a conclusion that the materials available before learned
appellate Court were insufficient or any inquiry is necessary to be
conducted for proper adjudication of the case, which could not have
been done conveniently by learned appellate Court itself. Only
because an order or judgment is a defective one, the appellate Court
should not remit back to rewrite a judgment by learned trial Court,
if there is a scope of rectifying the same by itself on the basis of
materials available on record. On perusal of the order under
Annexure-5, it appears that learned appellate Court after making an
exercise in discussing the rival claims of the parties and case law,
came to a conclusion that the order passed in I.A. No. 04 of 2022
was unsustainable in law, as 'nothing has been discussed, reasoned
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Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack
Date: 22-Nov-2024 18:33:32
or decided'. Hence, this Court is of the considered opinion that
learned appellate Court should have made an endeavour to
adjudicate the matter on merit instead of remitting it back to learned
trial Court.
7. Since learned appellate Court has not expressed any opinion
on the merits of case of either parties or on the order impugned
therein, this Court feels that notice in the matter to the Respondent-
Opposite Party may be dispensed with to avoid further delay in
adjudication of the matter.
8. Accordingly, the impugned order under Annexure-6 is set
aside and the matter is remitted to learned Additional District
Judge, Padampur for fresh adjudication of F.A.O. No. 02 of 2024
giving opportunity of hearing to the parties concerned. In order to
avoid further delay, the Petitioners shall appear before learned
appellate Court on 4th December, 2024 along with certified copy of
this order to receive further instruction in the matter.
9. With the aforesaid observation and direction, the CMP is
disposed of.
10. Since the CMP is disposed of without issuing notice to the
Opposite Party, he is at liberty to seek for variation of this order, if
he feels aggrieved.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Jina Judge
