Orissa High Court
Susama Palei vs Sanatan Behera & Others on 25 September, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A.O. No.25 of 2012
Susama Palei .... Appellant
Mr. S.K. Mishra, Sr. Advocate
-Versus-
Sanatan Behera & others .... Respondents
None
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
25.09.2025
Order No.
08. 1. Heard Mr. Mishra, learned Senior Advocate appearing
for the appellant.
2. No one appears for the respondents at the time of call.
3. Instant appeal is filed by the appellant challenging the
impugned judgment dated 24th September, 2012 passed in
connection with R.F.A. No.11 of 2009 by the learned
Additional District Judge, Khurda on the grounds stated.
4. The appellant is the plaintiff in the suit i.e. C.S. No.20
of 2007 and was instituted against the respondents for
permanent injunction and ultimately decreed vide judgment
dated 7th March, 2009 by the Court of learned Civil Judge
(Junior Division), Khurda. Being aggrieved of the judgment
and decree in the suit, the respondents preferred appeal in
R.F.A. No.11 of 2009 and therein, the remand has been
directed with additional issues being framed. Such an order of
remand by the learned Trial Court is under challenge at the
behest of the appellant.
5. Mr. Mishra, learned Senior Advocate for the appellant
submits that no case for remand is made out and the impugned
decision of the learned Court below is not consistent with Order
41 Rules 23, 23A and 25 CP.C. It is submitted that the
additional issues are covered by the decision in the suit and it
has been taken cognizance of in issue Nos.1, 2 & 7 while
dealing with the sale deeds executed in favour of the respective
parties. The further submission is that the learned Court below
could not have remanded the matter back for the Court of first
instance having not considered the evidence in its proper
perspective. The contention is that the Court in appeal is a
Court of fact and law and hence, such remand is not
permissible and particularly having not made out a case in
terms of Order 41 Rule 25 CPC. If at all any such issue or
issues as the case may be to be formulated by the learned Court
below, it could have directed the learned Civil Judge (Junior
Division), Khurda to receive and resubmit the same for disposal
of the appeal on merit but such an exercise was not undertaken
instead it has been followed by a remand, therefore, the
impugned judgment in R.F.A. No.11 of 2009 is liable to be
interfered with and set aside followed by consequential
directions issued.
6. Perused the judgment in C.S. No.20 of 2007, wherein,
one of the issues was, whether, the registered sale deed dated
6th December, 2006 was executed in favour of the plaintiff to be
void and while considering the same along with issue Nos.1 &
2 on the ownership of the appellant, it has been held and
concluded that Exts. A & B which are the sale deeds executed
in favour of the parties do not relate to the suit schedule
property thus negating the plea of the respondents and the claim
that it was purchased by them. No such decision has been
tendered by the learned Court below on such finding in the suit.
As such, the respondents did not have a counter claim in
respect of the suit schedule property. As far as the issues
involved, the Court finds that the learned Civil Judge (Junior
Division), Khurda, while dealing with the alleged purchases
made by the parties, held and concluded that the same do not
tally at all. Under such circumstances, the Court is of the view
that it was not right and justified on the part of the learned
Court below to direct a remand as the evidence on record is
sufficient enough to decide the rights of the parties in respect of
the suit schedule property.
7. Law is well settled that in case of remand, there has to
be compliance of the provisions of Order 41 CPC. In so far as
Rule 23 of Order 41 is concerned, it relates to a preliminary
issues involved and remand, whereas, in respect of the all the
issues decided, Rule 23A applies but as regards the remand
with any such additional issues formulated, the Court in appeal
is required to comply Rule 25 thereof. In the case at hand, the
additional issues formulated on the point whether a portion of
the suit land purchased by the appellant lies within the area of
the land claimed to have been acquired by the respondents. In
fact, the learned Civil Judge (Junior Division), Khurda
considered the sale deeds and ultimately reached at the
conclusion that the same do not tally with reference to the suit
schedule land and the same having not been set aside, such a
finding with additional issues formulated by the learned Court
below followed by remand, in the considered opinion of the
Court, is not sustainable under law. In fact, Order 41 Rule 25
stipulates that any such remand is permissible provided an issue
is not framed in the suit and in case it is formulated, the
directions would be for receiving evidence in appeal by the
Court of first instance and to resubmit the same. But, in the
instant case, the learned Court below did not consider receiving
any such evidence with additional issues formulated, hence,
this Court is of the view that there was no need for any such
remand all the more when the evidence is already on record and
received by the Court of first instance in the suit. In other
words, the conclusion the Court is of the view that no case of
remand is made out and it was, hence, for the learned Court
below to dispose of the appeal on merit taking into account the
evidence adduced by both sides. If at all it was realized by the
learned Court below to have additional issues, the procedure as
prescribed under Order 41 Rule 25 CPC was to be followed but
the same has not been resorted to. Having said that, the Court,
in ultimate analysis, reaches at a conclusion that the impugned
judgment in R.F.A. No.11 of 2009 is needed to be set at naught
with a direction to the learned Court below to rehear the parties
and to dispose of the appeal in accordance with law.
8. Hence, it is ordered.
9. In the result, the appeal stands allowed. As a necessary
corollary, the impugned judgment in R.F.A No.11 of 2009
dated 24th September, 2012 is hereby set aside with the
proceeding restored to file followed by a direction to the
learned Additional District Judge, Khurda to dispose of the
appeal on merit after providing an opportunity of hearing to the
parties in the suit.
10. In the circumstances, there shall be no order as to costs.
(R.K. Pattanaik)
Judge
Alok
