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2014 DIGILAW 133 (ORI)

BABAJI PRADHAN v. BALUNKI PRADHAN

2014-02-19

RAGHUBIR DASH

body2014
ORDER Raghubir Dash, J. - This is an appeal under Order-43, Rule 1(u), Code of Civil Procedure, 1908 challenging the order of remand passed by the learned lower appellate Court setting aside the judgment and decree passed by the learned Civil Judge (Senior Division), Puri in C.S. No. 64 of 2003 to decide the suit afresh on the existing evidence as well as by taking additional evidence on the additional issues by the lower appellate Court. 2. The Respondent No. 1 is the plaintiff, appellant is defendant No. 1 and respondent Nos. 2 to 7 are D-2 to D-7 before the learned trial Court. To avoid unnecessary confusion the parties hereinafter will be referred to as they are arrayed in the plaint. The plaintiff filed the suit for partition, declaration and permanent injunction with other consequential reliefs. The learned lower Court framed issues, examined witnesses and after analyzing the evidence placed before it, dismissed the suit. Against the judgment and decree of the learned trial Court, the plaintiff preferred RFA No. 11/66 of 2006 before the learned lower appellate Court. Being of the view that the learned trial Court did not take into consideration many points on the existing issues and many points on which issues were not framed, the learned lower appellate Court framed as many as six additional issues and passed the impugned order. 3. The appellant being aggrieved, challenges the impugned order on the grounds that the trial Court having taken into account the real controversy and having considered the materials on record in details, mere non-framing of specific issues does not affect the merit of its decision, and that even if the lower appellate Court found that the reasons given by the learned trial Court were not adequate, the former should, have, instead of remanding the matter, decided the additional issues itself. Learned counsel for the respondents however submits that since the remand is under Order 41 Rule 25 of C.P.C. the impugned order is not appealable. 4. Learned counsel for the respondents however submits that since the remand is under Order 41 Rule 25 of C.P.C. the impugned order is not appealable. 4. Learned counsel for the appellant on the other hand submits that the order of remand is covered under Rule 23A of Order 41 of C.P.C. As already stated, the learned lower appellate Court after framing some additional issues has set aside the judgment and decree of the learned trial Court, remitted the matter to the trial Court to decide the suit afresh with the existing evidence and if necessary, by taking additional evidence on the additional issues. In a similar situation this Court in Sanatan Mohapatra v. Hakim Mohammad, reported in, AIR 1977 Orissa 194 has observed that the remand order is under Order 41, Rule 23A of C.P.C. In the reported case, the lower appellate Court set aside the judgment and decree of the Munsif and directed to dispose of the suit afresh after framing an additional issue an receiving evidence from the parties on the validity of the two registered sale deeds, if tendered. His Lordship Justice S.K. Ray observed that the remand order had the effect of wiping out all the findings of the trial Court with regard to other aspects of the issues involved in the suit and the trial Court shall render fresh findings on them after hearing the counsels of the parties. The following observations made in the cited judgment may be quoted for appreciation of the submissions made by the learned counsels on the appealability of the impugned order. It was not a case of an appellate Court framing certain specific issues and referring them for trial to the trial Court, in which case the trial Court's jurisdiction is confined to determine those specific issues and not all the issues. Neither Rule 23 nor Rule 25 of Order 41 is applicable. This appears to me to be a remand under Order 41, Rule 23A of the Code of Civil Procedure. This rule speaks of an open remand and, in this case, after reading the remit order of the first appellate Court I am satisfied that the remit order is an open remand. The above quoted observation is squarely applicable to the case in hand. This rule speaks of an open remand and, in this case, after reading the remit order of the first appellate Court I am satisfied that the remit order is an open remand. The above quoted observation is squarely applicable to the case in hand. It is, therefore, held that the order of remand is an open remand coming under Order 41 Rule 23A of C.P.C. and for that the order is appealable under Order 43, Rule 1(u) of C.P.C. 5. Learned lower appellate Court considered it to be essential to frame some issues for right decision of the suit. But he has not dealt with the findings of the learned lower Court on the existing issues and merely stating the cases of the parties and the submissions made by the learned counsels in course of argument, the learned lower appellate Court expressed his view that the trial Court had failed to consider many points involved in the existing issues. The learned appellate Court has set aside the judgment and decree but without examining the findings of the learned lower Court on the existing issues. Before going to pass an order of remand under Order 41 Rule 23A C.P.C., the appellate Court ought to apply his mind to the findings recorded by the learned trial Court on different issues and thereafter to reverse the decree and to record his satisfaction that a retrial is necessary. This provision should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. Before deciding to remand the matter under the aforestated provision, the appellate Court must consider whether recourse to Rule 25 of Order 41 C.P.C. would be adequate or not. 6. In para-7 of the impugned order the learned lower appellate Court has assigned some reasons but those are confined to the omission of certain issues which according to the learned appellate Court ought to have been framed for right decision of the suit. 6. In para-7 of the impugned order the learned lower appellate Court has assigned some reasons but those are confined to the omission of certain issues which according to the learned appellate Court ought to have been framed for right decision of the suit. If at all the learned lower Court was of the considered view that some additional issues ought to have been framed then he could have dealt with the matter under Rule 25, Order 41 of C.P.C. The learned lower appellate Court could have framed the additional issues and refer the same to the trial Court for trial with direction to take evidence on the additional issues fixing some time for the trial Court to complete the trial on the additional issues and return the evidence to the appellate Court together with the trial Court findings on the additional issues. 7. In the light of the discussions made above, the appeal is allowed and the impugned order is set aside. The learned lower appellate Court shall proceed with the First Appeal and dispose it of in accordance with law, if considered necessary, by taking recourse to either Rule 23A or Rule 25 of Order-41 of C.P.C. There shall be no order as to cost.