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2006 DIGILAW 560 (ORI)

Janaki Behera v. Anam Charan Behera

2006-07-25

ASOK KUMAR GANGULY

body2006
JUDGMENT A. K. GANGULY, J. : This writ petition has been filed chal¬lenging the order dated 23rd November, 2004 passed by the Ad hoc Addl. District Judge, Fast Track Court-2, in Title Appeal No.119 of 1997. 2. The material facts of the case are that the petitioners filed Title Suit No.265 of 1992 in the Court of Civil Judge (Sr. Divn.), Ist Court, Cuttack, for partition of a suit land. The suit was subsequently transferred to the Court of Ist. Addl. Civil Judge (Sr. Divn.), Cuttack. The learned Court after taking oral and documentary evidence decreed the suit apportioning 1/3rd share of the property. 3. Opposite Party No.1, being aggrieved, filed Title Appeal No.119 of 1997 in the Court of the District Judge, Cuttack, and the said appeal has now been transferred to the Court of Addl.District Judge, Fast Track Court No.2, Cuttack. 4. In the appellate Court, the petitioners filed two amendment petitions for amending the description of the suit land in the schedule of the plaint. 5. Those amendment petitions came up for hearing before the appellant Court and the appellate Court, without allowing the amendment, remanded the matter under Order 41, Rule 25 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C.’) to the Court below with certain directions vide its judgment and order dated 23rd November, 2004. In the order passed by the appellate Court, it has been recorded that the said amendment petitions were filed in course of argument. One amendment peti¬tion was filed for correction of the description of the suit land in the schedule of the plaint and another amendment petition was filed for correction of the decree of the trial Court. On such amendment petitions, objections were also filed by the opposite parties. The appellate Court found that unless the contentions raised in those amendment petition are decided, the appeal cannot be decided. As such, the appellate Court framed issue to the following effect :- “Whether the land in the plaint schedule and the schedule given in the amendment petition is the same land ?” 6. The appellate Court found that unless the contentions raised in those amendment petition are decided, the appeal cannot be decided. As such, the appellate Court framed issue to the following effect :- “Whether the land in the plaint schedule and the schedule given in the amendment petition is the same land ?” 6. After doing the aforesaid exercise, the appellate Court remanded the matter under Order 41, Rule 25 C.P.C., to the Court below with a direction to answer this issue after accepting the additional evidence, if any, and to correct the decree if neces¬sary and to send his finding along with the record and other relevant papers for final disposal of the appeal. 7. It clearly appears from the order of the appellate Court that the evidence on record is not sufficient to decide the questions raised in the amendment petitions. As such, it framed an issue and remanded the same to be tried by the learned Court below. Therefore, the appeal has not been disposed of by the appellate Court either in whole or in part since it is a remand under Order 41, Rule 25, C.P.C., and the appellate Court does not lose its seisin over the matter. Even after the findings of the trial Court are reached and are returned to the appellate Court, the parties can argue the whole appeal. This legal position is well settled and has been specifically held in the judgment of the Supreme Court in the case of Gogula Gurumurthy and others v. Kurimeti Ayyappa, reported in AIR 1974 S.C. 1702 . 8. This being the admitted position both on facts and in law, this Court is of the view that this writ petition under Articles 226 and 227 is not maintainable. In this petition, there is a prayer for issuing a writ of certiorari for quashing the order of the appellate Court dated 23rd November, 2004. But this Court is of the opinion that a writ of certiorari against an order of the Civil Court may lie only in the rarest of rare cases but cannot lie in a routine manner or as a matter of course. But this Court is of the opinion that a writ of certiorari against an order of the Civil Court may lie only in the rarest of rare cases but cannot lie in a routine manner or as a matter of course. In the case of Surya Dev Rai v. Ram Chander Rai reported in AIR 2003 S.C. 3044 , the Apex Court explains this position very clearly by saying that certiorari jurisdiction under Article 226 of the Constitution can be exercised only in cases in which there are palpable errors of jurisdiction bringing about a patent failure of justice. In the instant case none of those above factors is present. Apart from that in the case of Surya Dev Rai (supra), the Apex Court has pointed out that where the error, if any committed, can be corrected in appeal, the exercise of writ jurisdiction by the High Court or its supervisory jurisdiction under Article 227 will not be proper unless the error is such that it has to be corrected immediately and unless corrected, it become incapable of being corrected at a later stage and occa¬sions a travesty of justice. 9. In the instant case, this Court following the aforesaid principles in Surya Dev Rai (supra) dismisses the writ petition as totally misconceived. All interim orders are vacated. There will be no order as to costs. Petition dismissed.