The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No. 11 of 2018 M/s. Sri Adinath Real Estates (P)Ltd. …. Appellant Mr. S.S. Mohanty, Advocate & Associates -Versus- Asit Kumar Dash & Another …. Respondents Mr. H.N. Mohapatra, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:13.11.2023 1. Instant appeal under Order XLIII Rule 1(u) of the Civil Procedure Code, 1908 is at the behest of the appellant assailing the impugned judgment dated 18th July, 2018 promulgated in RFA No. 49 of 2017 by the learned District Judge, Puri whereby the decision of the learned Civil Judge(Junior Division), Puri in C.S. No. 82 of 2013 was set aside with a remand to assess the market value on the suit subject for the purpose of pecuniary jurisdiction and thereafter, disposal of the suit with findings on all issues.
Legal Reasoning
2. The appellant as the plaintiff instituted the suit for eviction against the respondents, who filed a joint Written Statement (WS). The appellant instituted the suit to evict the respondents as the latter did not have any right to remain in occupation of the suit house, the possession being unauthorized and illegal. The respondents, as earlier mentioned, challenged the suit on the grounds stated in WS. The learned court below framed issued considering the pleadings of the parties and thereafter, received evidence and finally decreed the suit on contest with the direction to respondents to vacate the suit premises within the stipulated period. The judgment and decree in C.S. No. 82 of 2013 dated SAO No. 11 of 2018 Page 1 of 6
Legal Reasoning
M/s. Sri Adinath Real Estates (P)Ltd. Vrs. Asit Kumar Dash & Another 31st July, 2017 was challenged by the respondents before the Lower Appellate Court and the appeal was allowed with a remand as stated before. The challenge of the appellant is on account of wholesome remand while the dispute is in relation to pecuniary jurisdiction of the court of first instance. 3. Heard Mr. Mohanty, learned counsel for the appellant and Mr. Mohapatra, learned counsel for the respondents. 4. Mr. Mohanty, learned counsel for the appellant submits that after a full-fledged trial, the suit was disposed of wherein pecuniary jurisdiction of the court was an issue, so therefore, for a decision on such a question, if at all, remand was justified, learned Lower Appellate Court could not have directed a fresh trial on all issues. In other words, Mr. Mohanty submits that de-novo trial was directed which is not in consonance with the provisions of Order 41 Rules 23, 23-A or 25 CPC, hence, the same is liable to be interfered with and set aside. While contending so, Mr. Mohanty, learned counsel for the petitioner refers to the following judgments of the Apex Court, such as, REMCO Industrial Workers House Building Co-operative Society Vrs. Lakshmeesha M. and others 97 (2004) CLT 83 (SC); Pasupuleti Venkateswarlu Vrs. The Motor & General Traders AIR 1975 SC 1409; Purna Chandra Chand Vrs. State & others 2014 (SUPP.-II) OLR NOC 251; Jagtar Singh & others Vrs. Bachan Singh & others 2011 (1) CCC 0074; and Ramesh Chand Vrs. Kamli Ram & others 2015 (SUPPL.)CCC 0298. The contention is that if for consequential relief, pecuniary jurisdiction of the court was challenged, a decision having been rendered in the suit on the said issue and other issues as well on merit, learned Lower Appellate Court fell into gross error in setting aside the judgment of the learned Civil Judge (Junior Division), Puri with a plain remand for a de novo trial. SAO No. 11 of 2018 Page 2 of 6 M/s. Sri Adinath Real Estates (P)Ltd. Vrs. Asit Kumar Dash & Another 5. Mr. Mohaptra, learned counsel for the respondents on the other hand submits that the impugned judgment is perfectly justified and in accordance with law. It is submitted that learned Lower Appellate Court did not commit any serious illegality while remanding the suit for a fresh determination on all issues, since it interfered with the finding on pecuniary jurisdiction with a conclusion that Section 7(v) of the Court Fees Act to be applicable and issued consequential direction for appointment of a Commission under Order XXVII Rule 9 CPC. It is contended by Mr. Mohapatra that Order XLI Rule 25 does not apply to the case at hand. It is further contended that the remand of the suit is in terms of Order XLI Rule 23 since on a preliminary point it was
Decision
disposed of for a decision on jurisdiction and court fee as Section 7(v) for the Court Fees Act is prima facie held to be applicable and not Section 7(iv) thereof and rightly, directed to receive evidence in that regard through a Commission. In support of such contention, Mr. Mohapatra refers to a judgment of this Court case of Krushna Chandra Nayak Vrs. M/s. Orissa Sanitary Mart reported in 2007(Supp.-II) OLR 360, wherein, general principles on remand have been discussed. 6. In so far as Order XLI Rule 23 CPC is concerned, the same is a remand, if a decree on a preliminary point decided and disposed of stands reversed in appeal. In such a case, the Court in appeal may if it things fit by order remand a suit which has been disposed of on a preliminary point and further direct as to what issue or issues shall be tried in case of such remand. Rule 23-A of Order XLI CPC is related to remand in other cases where the decree and disposal of the suit is otherwise than on a preliminary point said to have been reversed. In case, the Court of first instance 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 merits, it may frame such SAO No. 11 of 2018 Page 3 of 6 M/s. Sri Adinath Real Estates (P)Ltd. Vrs. Asit Kumar Dash & Another issue(s) and refer the same for trial and shall direct to take additional evidence necessary and such court shall proceed to try such issues and thereafter, to return the evidence together with the findings thereof for a final decision in appeal which is in terms of Order XLI Rule 25 CPC. 7. In so far as the present case is concerned, the order of remand is in terms of Rule 23-A of Order XLI CPC for the reason that the suit was not disposed of on any such preliminary point but returned with findings on all issues. In other words, the Court finds that the impugned judgment of the Lower Appellate Court is an open remand. Admittedly, it is not a case under Order XLI Rule 25 CPC. Mr. Mohapatra, learned counsel for the respondents submits that since on the question of pecuniary jurisdiction, the suit was remanded back, such remand is to be covered by Order XLI Rule 23 CPC. The Court is, however, in disagreement with Mr. Mohapatra, learned counsel for the respondents as the suit was disposed of with a decision on all issues and on merit with a finding on pecuniary jurisdiction as well. Rule 23 of Order XLI CPC does apply to a case where the suit has been disposed of upon a preliminary point and the decree is reversed in appeal. In any case, an Appellate Court shall have the same powers as it has under Rule 23 while directing a remand in terms of Rule 23-A of Order XLI CPC. It is well settled law that jurisdiction under Rule 23-A should be sparingly exercised since the public policy is that a litigation is to be concluded finally but where remand is felt absolutely necessary, remand may be considered where the remedy under Rule 25 is found to be inadequate. In the suit, learned Civil Judge (Junior Division), Puri received evidence and returned findings on all issues. The issue of pecuniary jurisdiction has been considered along with other issues. In so far as remand is concerned, it is not a case under Rule 23 or 25 of Order XLI CPC but relates to Rule 23-A thereof. It is no SAO No. 11 of 2018 Page 4 of 6 M/s. Sri Adinath Real Estates (P)Ltd. Vrs. Asit Kumar Dash & Another doubt right to contend that a defect of jurisdiction whether it is pecuniary or territorial or whether in respect of subject matter of the action, strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of the parties. 8. Learned Lower Appellate Court referred to a judgment of the Apex Court in Kiran Singh and others Vrs. Chaman Paswan and others AIR 1954 SC 340 and held that the decision on jurisdiction materially affects the rights of the respondents. The fundamental principles vis-a-vis jurisdiction and a decree without jurisdiction to be a nullity have been discussed in the decision (supra). The impugned judgment of the Lower Appellate Court and its legality is questioned confining it to the extent that open remand for a de novo trial is bad in law. In the aforesaid decision, the Apex Court referring to Sections 21 and 99 CPC read with Section 11 of the Suit Valuation Act held and observed that when a case has been tried by a Court on merits, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an Appellate Court, unless there has been a prejudice on merits. It is concluded therein that the definition of ‘prejudice’ in Section 11 of the Suit Valuation Act does mean a prejudice not on merits but due to wrong jurisdiction invoked related to territorial or pecuniary or on such other possible situations which cannot be exhaustively enumerated. if the above decision is read and understood with reference to Section 11 of the of the Suit Valuation Act, any such objection by the parties, the requirement as to prejudice has to be satisfied. In any case, want of pecuniary jurisdiction, in view of Section 21(2) CPC is no more considered lack of inherent jurisdiction. So therefore, a question on jurisdiction, if has not SAO No. 11 of 2018 Page 5 of 6 M/s. Sri Adinath Real Estates (P)Ltd. Vrs. Asit Kumar Dash & Another been raised at the earliest point in time and furthermore, prejudice not on merits of the case but on technical ground is not established, having understood the ratio laid down in the decision (supra) in its proper perspective, a decree with findings on all issues is not to be set at naught. The said aspect has not been duly examined by the lower Appellate Court though it referred to the aforesaid decision. No prejudice is shown to have been suffered by the respondents, who admittedly raised no any objection on pecuniary jurisdiction before the Trial court at or before the hearing at which issues were first framed and recorded rather wholeheartedly participated in the suit resulting thereby its disposal on merit with decision on all issued involved. Hence, it has to be concluded that there was no basis or justification for the learned Lower Appellate Court to remand the suit for determination vis-à-vis pecuniary jurisdiction instead ought to have decided the appeal on merit. In so far as other citations are concerned, the Court is of the humble view that the same need no discussion as the principles of remand have been discussed therein whereas its conclusion is otherwise and opposed to the view expressed by the learned Lower Appellate Court. 9. Hence, it is ordered. 10. In the result, the appeal stands allowed. As a necessary corollary, the impugned judgment dated 18th July, 2018 promulgated in RFA No. 49 of 2017 is hereby set aside. Consequently, for the reasons discussed herein above, the appeal i.e. RFA No. 49 of 2017 is hereby restored to file for its early disposal on merit by the learned District Judge, Puri. Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 13-Dec-2023 15:45:06 Kabita (R.K. Pattanaik) Judge SAO No. 11 of 2018 Page 6 of 6