Badal Kumar Nayak & Others vs Narendra Nayak
2025 Latest Caselaw 9633 Ori

Orissa High Court

Badal Kumar Nayak & Others vs Narendra Nayak on 31 October, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 SAO No.8 of 2025
            Badal Kumar Nayak & others         ....               Appellants
                                                      Mr. S. Sahu, Advocate
                                        -Versus-
            Narendra Nayak                      ....            Respondent
                                      Mr. P.S. Nayak, Advocate for R-1 & 2
                                           Mr. S. P. Rath, Advocate for R-3
                      CORAM:
                      MR. JUSTICE R.K. PATTANAIK

                                      ORDER

31.10.2025 Order No.

01. 1. Heard Mr. Sahu, learned counsel for the appellants.

2. Instant appeal is filed by the appellants challenging the impugned judgment in R.F.A. No.32 of 2019 of the learned District Judge, Bhadrak, whereby, a suit in C.S. No.290 of 2013-I has been remanded back for disposal according to law.

3. Mr. Sahu, learned counsel for the appellants submits that the suit was disposed of and dismissed by the learned Civil Judge, Bhadrak for want of pecuniary jurisdiction but was set aside by the learned court below with a remand for a decision on all the issues, which is not permissible, as it is not in consonance with Order 41 Rule 23 CPC.

4. Perused the impugned judgment as at Annexure-5.

5. In fact, the appellants are the defendants and respondents before the learned courts below. The suit was

instituted by the respondent in C.S. No.290 of 2013-I for permanent injunction in respect of the schedule property. In the suit, the appellants filed the WS, a copy of which is at Annexure-2. Since earlier purchases and title over the suit property was claimed by the appellants, an application as per Annexure-3 was filed by the respondent for amendment and accordingly, the plaint was amended. The reliefs sought for by the respondent after amendment is for a declaration of title in respect of the schedule property and confirmation of possession besides permanent injunction as against appellants. Ultimately, the suit was disposed of on 17th May, 2019 and dismissed on the ground that the learned Civil Judge, Bhadrak has no pecuniary jurisdiction to entertain it. As against the dismissal of the suit, the respondent filed the appeal in RFA No.32 of 2019 and it has led to the passing of the impugned judgment at Annexure-5 with a remand of the suit for a decision on all the issues with findings thereon. The said order of remand in terms of Order 41 Rule 23 CPC is under challenge at the behest of the appellants.

6. Gone through the grounds stated in the appeal memorandum questioning the correctness of the judgment and decree dated 5th March 2025 in appeal at Annexure-5.

7. The contention of Mr. Sahu, learned counsel for the appellants is that the learned court below ought to have passed the impugned judgment without reversing the decree in the suit, even though, on a preliminary point of jurisdiction merely referring to Order 20 Rule 25 CPC. The further submission is

that the learned court below ought to have determined the question of pecuniary jurisdiction and only upon reversing the decree should have directed such a remand if necessary. The contention is that the jurisdiction at the time of remand has not been exercised by the learned court below in accordance with the conditions stipulated in Order 41 Rule 23 CPC.

8. Considering the plea of the appellants and submission as above, the Court is inclined to dispose of the appeal, without any notice to the respondent, by the following order.

9. A copy of the plaint is at Annexure-1 and the same is perused. Admittedly, the suit was instituted by the respondent seeking relief of permanent injunction simplicitor. But, after the amendment of the plaint as per Annexure-3, respondent claimed title over the schedule property and confirmation of possession in respect thereof besides injunction against the appellants. Such plea of the respondent was challenged by the appellants with a reply as per Annexure-2. The details of the transfer led to the acquisition of interest by the appellants have been pleaded in Annexure-2 denying the title in respect of the schedule property of the respondent. As earlier stated, the suit was disposed of without other issues being determined, primarily, on the ground of pecuniary jurisdiction. Upon dismissal of suit, the respondent filed the appeal.

10. On a reading of the impugned judgment at Annexure-5, the Court finds that remand has been allowed by the learned court below on the premise that the suit has not been disposed

of with the determination on all the issues. It has been held therein that a suit shall have to be disposed of with findings on all issues in view of Order 20 Rule 5 CPC. Mr. Sahu, learned counsel for the appellants submits that such a disposal may be achieved even on a preliminary issue permissible under Order 20 Rule 5 CPC. The Court is in agreement with Mr. Sahu, learned counsel for the appellants, since, as per the Order 20 Rule 5 CPC, a suit is to be disposed of with a decision on all issues unless a finding upon anyone or more issues is sufficient. In the case at hand, as the Court of first instance held having no pecuniary jurisdiction, nevertheless, when the appeal was filed before the learned court below, a finding on pecuniary jurisdiction should have been tendered. As it appears, the learned court below did not touch upon the issue on jurisdiction and without reversing the decree with a finding of the learned Civil Judge, Bhadrak allowed the remand.

11. Law is well settled that any such remand must have to be complying the conditions of Order 41 Rules 23, 23-A and 25 CPC. In so far as the case of the appellants is concerned, as the disposal of the suit has been on a preliminary issue of jurisdiction, Order 41 Rules 23 CPC is applicable. So, therefore, the learned court below ought to have considered remand strictly as per Rule 23 and Order 41 CPC but by not deciding the issue on jurisdiction and reversing the finding thereon of the learned Civil Judge, Bhadrak, in the humble view of the Court, it could not have directed the remand. Having said that, the Court reaches at a conclusion that the

learned court below before remand was required to examine, whether, the learned Civil Judge, Bhadrak rightly decided the preliminary issue when evidence was received in that behalf. It was the bounden duty of the learned court below to consider the same and thereafter, to dispose of the appeal as the jurisdiction is exercisable as a Court of fact and law. But, instead of reversing the decree of the suit with a finding on jurisdiction, such power has been exercised by the learned court below, which is not in terms of Order 41 Rule 23 CPC, hence, the decision of remand is to be interfered with. That apart, according to the Court, a decision on all the issues may be rendered even when the appeal is against and on a preliminary point and such an exercise may be explored by the learned court below for a decision on merit instead of a remand since the entire evidence is already on record.

12. Accordingly, it is ordered.

13. In the result, the appeal is allowed. As a necessary, the impugned judgment dated 5th March, 2023 passed in RFA No.32 of 2019 at Annexure-5 is hereby set aside. It is further directed that the appeal upon restoration shall be disposed of by the learned District Judge, Bhadrak as per and in accordance with law providing opportunity of hearing to both the sides.

14. Issue urgent certified copy of this order as per rules.

Signed by: BALARAM BEHERA                                                    Judge