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2009 DIGILAW 310 (ORI)

Sabitri Devi v. Srikrushna Academy

2009-04-08

A.S.NAIDU

body2009
JUDGMENT A. S. NAIDU, J. — The judgment dated 25.6.2001 passed by Additional District Judge, Jagatsinghpur in Title Appeal No.95 of 1995/T.A. No.53 of 1997 setting aside the judgment and decree dated 15.7.1995 and 31.7.1995 respectively passed by Civil Judge (Senior Division), Jagatsinghpur in Title Suit No.49 of 1988 and remitting the suit for de novo disposal is assailed in this Miscellaneous Appeal filed under Order 43, Rule 1(a) of the Civil Procedure Code. 2. The appellant, as plaintiff, filed Title Suit No.49 of 1988 in the Court of the then Subordinate Judge, Jagatsinghpur, inter alia, praying for passing a decree, declaring entry of the name of the defendant No.1 (Srikrushna Academy, Jagatsinghpur) in the Hal settlement record of rights in respect of the suit schedule properties as illegal, for declaration of title of the plaintiff over the said lands and also directing for preparing the Hal record of rights in his name and to restrain defendant Nos.1 to 5 permanently from interfering with the peaceful possession of the plaintiff over the suit land as well as for other ancillary re¬liefs. In the plaint it was averred that Sk. Taju Mohammad and others were the exclusive owners of the suit property, and that the same were sold in Execution Case No.1003/47-48 and was pur¬chased by the plaintiff in a Court sale on 25th March, 1949. The same was confirmed on 28th April, 1949, which was handed over to the plaintiff and from the said date, the plaintiff was in peace¬ful possession of the lands as rightful owner thereof. He had also alienated a portion of the lands purchased by him. Defendant No.1, it is alleged, taking advantage of the erroneous recording made in the Hal Settlement Records, was trying to disturb in his possession, consequently, the plaintiff was constrained to file the suit. 3. After receiving notice, defendant Nos.1 to 3 filed their written statement taking the stand that the suit is not maintainable for non-joinder and misjoinder of parties and was also barred by time. In the written statement, it is pleaded that the Execution Case No.1003 of 1947-48 and the sale executed thereunder cannot affect the rights of the defendants and as such, the recording made in the Hal settlement record was just and proper. According to the defendants. In the written statement, it is pleaded that the Execution Case No.1003 of 1947-48 and the sale executed thereunder cannot affect the rights of the defendants and as such, the recording made in the Hal settlement record was just and proper. According to the defendants. Late Diwan Bahadur Srikrushna Mohapatra purchased the lands from the original owners by registered sale deed in the year 1931 for the purpose of establishment of a school, commonly known as “Srikrushna Academy”. In the year 1961 the said academy was taken over by the Government of Orissa and as such, the said land was rightly recorded in the name of the school in the Hal record of rights. 4. On the basis of the pleadings, the trial Court framed as many as nine issues. The plaintiff in order to substantiate his case, got examined five witnesses and exhibited 12 documents. On behalf of the defendants, neither any oral nor any documentary evidence was adduced. The trial Court after vivid discussion of the evidence both oral and documentary answered all the issues in favour of the plaintiff except issue Nos.1,3 and 9 and dismissed the suit. Being aggrieved, the plaintiff filed an appeal before the learned Addl. District Judge, Jagatsinghpur. The said appeal was confined only to the findings arrived at by the trial Court in respect of issue Nos.1,3 and 9. It is pertinent to mention here that though other issues were answered in favour of the plaintiff, no appeal or cross-objection was filed by the defend¬ants. However, a petition under Order 41, Rule 27, C.P.C. was filed for adducing additional evidence before the appellate Court. The appellate Court it is submitted without appreciating the evidence, arrived at the conclusion that the trial Court had committed an error apparent on the face of the records and re¬manded the suit to the Court below with a direction to give adequate opportunity to the respondents to examine their witness¬es and to produce documents, if any. The petition filed by the defendants-respondents for acceptance of three documents as addi¬tional evidence was also rejected by the appellate Court. 5. Being aggrieved by the said order of remand, the plain¬tiff has approached this Court. According to Mr. B. Mishra, learned counsel for the plaintiff-appellant, the plaintiff had adduced adequate evidence both oral and documentary and it is not a case of lack of any evidence. 5. Being aggrieved by the said order of remand, the plain¬tiff has approached this Court. According to Mr. B. Mishra, learned counsel for the plaintiff-appellant, the plaintiff had adduced adequate evidence both oral and documentary and it is not a case of lack of any evidence. It is further submitted that the appellate Court without making any endeavour to discuss the evidence already available on record, illegally and mechanically set aside the decree passed and remanded the matter to the Court below. Mr. Mishra further submitted that as the defendants had not filed any appeal or cross-objection assailing the findings arrived at by the trial Court in favour of the plaintiff except issue Nos.1,3 and 9, the appellate Court acted illegally in re¬manding the matter and directing the trial Court to grant oppor¬tunity to the defendants to produce further evidence, if any, thereby giving an opportunity to them to fill up the lacuna. In short, according to Mr. Mishra, the order of remand is illegal, contrary to law and should be set aside. 6. Heard learned counsel for the parties at length. Pe¬rused the pleadings and the impugned orders. Order 41, Rule 23 of the Code of Civil Procedure deals with remand of a case by the appellate Court. The said provision clearly stipulated that where the Court from whose decree the appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court, if it thinks fit by order remand the case and may further direct all the issue or issues to be tried in the case so remanded. 7. Order 41, Rule 23-A of the Code stipulates that where the Court from whose decree the appeal is preferred has disposed of the case, otherwise than on preliminary point and the decree is reversed in appeal and re-trial is considered necessary, the appellate Court shall have the same power as it has under Rule 23. 8. In the case in hand, as has been stated earlier, as many as nine issues were framed. The trial Court has discussed the evidence adduced and has decided all the issues. Law is well settled that Rule 23-A should be sparingly used since the inten¬tion of the legislature is to conclude all the disputes finally as expeditiously as possible. 8. In the case in hand, as has been stated earlier, as many as nine issues were framed. The trial Court has discussed the evidence adduced and has decided all the issues. Law is well settled that Rule 23-A should be sparingly used since the inten¬tion of the legislature is to conclude all the disputes finally as expeditiously as possible. Only in the case where the appel¬late Court finds that necessary materials/evidence are not available for effectual adjudication, after applying judicial mind, the appellate Court may consider the question of open re¬mand. However, before doing so, the appellate Court is required first to make endeavour to answer the disputed findings and when in spite of such endeavour it finds that it is not in a position to come to a conclusion, either way due to certain inadvertent reasons, it may remand the suit for fresh trial. It has to be kept in mind that an open remand amounts to setting aside a decree and such orders should be passed only when the appellate Court after due application of mind comes to the conclusion that certain further evidence is required. It would not be proper to set aside the decree and remand the matter to the Court below for re-writing a judgment when the judgment is found to be defective¬ly drafted. If adequate evidence are available before the appel¬late Court, the same being a final Court of facts, can discuss the same and arrive at a conclusion instead of remanding the case for de novo trial. (See: Rusi @ Rusi Behera and another v. Madan Behera and others, 1986 (1) OLR 198) 9. In the case of Nilamani Dibya v. Biswanath Mohapatra, AIR 1987 Orissa 227 this Court has held that after introduction of Rule 23-A by amendment, the principle behind remand by the appellate Court has not undergone any change and power of remand can be exercised where the appellate Court while reversing the decision of the trial Court considers a re-trial is necessary. The power is no doubt wide, yet the wider is the power, greater should be the restraint keeping in mind that expeditious finality of a litigation is the public policy. 10. Setting aside a decree and remitting the matter to the trial Court for de novo trial should not be directed when due to latches of one of the parties, difficulties have crept in. 10. Setting aside a decree and remitting the matter to the trial Court for de novo trial should not be directed when due to latches of one of the parties, difficulties have crept in. By such remand, a party, who was negligent before the trial Court will be benefited. Merely because the evidence on record is not sufficient to enable the Court to come to a definite finding, is also not a sufficient ground to enable the appellate Court to remand the case, more so, when the parties had adequate opportu¬nity of producing all the evidence that they desired before the trial Court. Such an order may in effect an invitation to per¬jury. The policy of law is that once the matter has been fairly tried between the parties, it should not, except in special circumstances, be reopened and/or re-tried. (See : Bishnu Putel v. Bajra Putel, AIR 1964 Orissa 250). 11. After going through the impugned order, in view of the position of law enumerated above, this Court is satisfied that the lower appellate Court had not taken into consideration the evidence already on record, instead mechanically remitted the case to the trial Court. It is needless to say that the petition filed by the respondents to adduce additional evidence under Order 41, Rule 27, C.P.C. could have been considered by the appellate Court in the appeal itself. The appellate Court failed to adopt such procedure. 12. In view of the aforesaid facts and circumstances, this Court on being satisfied that adequate evidence both oral and documentary is available on record, to lessen the span of litigation feels that it would be better to set aside the impugned order and remit the matter to the appellate Court for de novo disposal of the appeal on the basis of the evidence already available. It is needless to say that the appellate Court can also consider the petition filed by the respondents under Order 41, Rule 27, C.P.C. for adducing additional evidence and dispose it of in accordance with law. 13. The appeal is accordingly allowed. Parties to bear their own cost. Appeal allowed.