The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO Nos.492 & 493 of 2003 Dhruba Charan Behera and Others …. Appellants Mr. R.K. Mohanty, Sr. Adv. Along with Ms. S. Mohanty, Advocate -versus- Sk. Suleman and Others …. Respondents Mr. S.P. Mishra, Senior Advocate along with Mr. G.N. Parida, Advocate Mr. S. Pattnaik, AGA COROM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.09.2024 Order No 12. 1. These matters are taken up through Hybrid Mode. 2. Heard learned counsel appearing for the parties. 3. Both these appeals have been filed challenging the common judgment dtd. 30.04.2003 passed by the learned Adhoc Addl. District Judge, Balasore in Title Appeal No.50/14 of 1988/2002 and Title Appeal No.15/51 of 2002/1988. 4. Learned Senior Counsel appearing for the Appellants contended that challenging the common // 2 // judgment and decree dtd.30.07.1998 and 12.08.1998 so passed by the learned Addl. Civil Judge (Jr. Divn.), Balasore,
Legal Reasoning
the unsuccessful Plaintiffs in O.S. No.154/1982-I filed T.A. No.50/1998 and the defendants Nos.1 to 4 in O.S. No.277 of 1986 filed T.A. No.51/1988. Both the appeals in T.A. No.50/1988 and 51/1988 were filed before the learned District Judge, Balasore and both the appeals were taken up by the learned Adhoc Addl. District Judge, Balasore on transfer vide T.A. No.50/14 of 1988/2002 and 15/51 of 2002/1988. 4.1. It is contended that the learned lower Appellate Court only on the ground that the suit even though was filed on a representative capacity, but there was no compliance of the provisions contained under Order 1 of Rule-8 of the Code of Civil Procedure and no notice under Section 56 of the Wakf Act, 1954 (Sec.89 of the Wakf Act, 1995) having been issued prior to filing of the respective suits, remanded the suits to the Trial Court for fresh disposal with framing of an Addl. issue vide the impugned common judgment dated 30.08.2003. 4.2. Learned Senior Counsel for the Appellants contended that provisions contained under Order 1 Rule-8 was duly complied with by the Plaintiff of O.S. No.277 of 1986 and the said fact has been clearly indicated in Order dated 10.02.1987 of the Trial Court. Page 2 of 7 // 3 // It is also contended that with regard to compliance of the notice issued under Section 56 of the Wakf Act (Sec.89 of 1995 Act), the same since was not controverted by the defendants in T.S. No.277/86 which amounts to admission, learned Trial Court in its order dated 10.02.1987 held compliance of the provision contained under Section 56 of the Wakf Act. 4.3. It is contended that on the face of the order passed by the Trial Court on 10.02.1987 in O.S. No.277/1986, learned lower Appellate Court remanded both the suits for fresh trial on all the issues including an Addl. Issue so framed by the learned lower Appellate Court. It is accordingly contended that the impugned common judgment passed by the learned lower Appellate Court on 30.08.2008 in both the appeals is not sustainable in the eye of law. Addl. issue so framed reads as follows:- “(1) Whether the notice U/s 56 of 1954 Wakf Act (Sec.89 of the 1995 of Wakf Act) was served on the Board of Wakf in accordance with law?” 4.4. It is also contended that instead of remanding both the suits for disposal on all the issues including the additional issue so framed, learned lower Appellate Court in view of the provisions contained under Order 41 Rule-25 of CPC could have directed the learned Trial Court to lead evidence on the additional issue so Page 3 of 7 // 4 // framed and send the same for disposal of both the appeals on merit as both the suits are year old suits.
Legal Reasoning
5. Mr. S.P. Mishra, learned Senior Counsel appearing for the Respondents in both the appeals, supported the impugned judgment and contended that there was no compliance of the provisions contained under Section 56 of the Wakf Act and non-compliance of the provision was clearly stated in Para-29 of the Written Statement, so filed in O.S. No.277 of 1986. On the face of the stand taken in Para-29 of the Written Statement, learned trial Court could not have passed the order on 10.02.1987 in O.S. No.277 of 1986. In view of the stand taken in the written statement and the other materials placed, learned lower Appellate Court remanded both the suits for fresh trial on all the issues including the additional issue so framed by the learned lower Appellate Court. It is accordingly contended that the impugned judgment has been rightly passed and it requires no interference of this Court. However, with regard to the submission of the learned Senior Counsel appearing for the Appellants to take recourse to the provision contained under Order 41 Rule 25 of the CPC, learned Senior Counsel appearing for the Respondents contended that the same can be taken recourse to. Page 4 of 7 // 5 // 6. Mr. S. Pattnaik, learned Addl. Govt. Advocate contended that since the issue in both the suits are inter se dispute in between two communities, this Court may pass appropriate order. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that while O.S. No.154/1982 was filed by the present Respondents and T.S. No.277 of 1986 was filed by the present Appellants. Both the suits were decreed in part vide judgment and decree dtd.30.07.1988 and 12.08.1988 respectively. Unsuccessful plaintiff in O.S. No.154/1982 filed the Title Appeal No.50 of 1988 and Title Appeal No.51 of 1988 was filed by the defendants No.1 to 7 in O.S. No.277/1986. Learned lower Appellate Court vide the impugned common judgment and decree taking into account the non-compliance of the provisions contained under Order 1 Rule 8 of CPC and Section 56 of the Wakf Act, 1954/Section 89 of the Wakf Act, 1995, remanded both the suits for fresh trial by framing an additional issue. Learned lower Appellate Court directed the Trial Court to decide all the issues i.e. issues already framed in the suit and the additional issue so framed. 7.1. The Trial Court was also directed to dispose of both the suits as early as possible as the suits are year old suits. Page 5 of 7 // 6 // 7.2. This Court after going through the impugned common judgment and the provisions contained under Order 41 Rule-25 of the CPC is of the view that instead of remanding both the suits for fresh disposal on all the issues including the addl. issue, so framed by the learned lower Appellate Court, the Trial Court is directed to allow the parties to lead evidence on the additional issue so framed by the learned lower Appellate Court as well as compliance of Order 1 Rule 8 of CPC and return the evidence together with its finding to the lower Appellate Court for disposal of both the appeals on merit. Order 41 Rule 25 of CPC reads as follows:- “25. Where appellate court may frame issues and refer them for trial to court whose decree appealed from.—Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time.” 7.3. In view of the aforesaid analysis, this Court while interfering with the impugned common judgment dtd.30.04.2003 passed by the learned Adhoc Addl. District Judge, Balasore in T.A. No.50/14 of 1988/2002 and T.A. No.15/51 of 2002/1988, quash Page 6 of 7 // 7 // the order so far as it relates to remanding both the suits for trial by the Trial Court. This Court in the alternate direct the leaned Trial Court to lead evidence on the additional issue framed by the learned lower Appellate Court as well as compliance of Order 1 Rule 8 of CPC and return the evidence together with its finding to the lower Appellate Court for disposal of the appeals. The Trial Court is directed to complete the exercise within a period of 6(six) months from the date of receipt of records of both the suits. The Appellate Court is directed to send back the records of both the suits forthwith on receipt of this order. The Appellate Court is further directed to dispose of both the appeals on receipt of the record from the Trial Court, within a period of 6 (six) months by giving opportunity of hearing to the appellants and respondents herein. In order to avoid delay, this Court permits the Appellants and Respondents to appear before the lower Appellate Court on 07.10.2024.
Decision
8. Both the Appeals are accordingly disposed of. Judge (Biraja Prasanna Satapathy) Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Oct-2024 15:02:52 Page 7 of 7