The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A.O No.13 of 2025 Nabin Kumar Das Appellant Ms. Baishnabi Banashri, Advocate …. -Versus- Dayanidhi Sahoo …. Respondent None CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 22.08.2025 Order No. 01. 1. 2.
Legal Reasoning
Heard Ms. Sahoo, learned counsel for the appellant. No notice is issued to the opposite party as the matter is
Decision
disposed of at the stage of admission. 3. Instant appeal under Order 43 Rule 1(u) read with Section 105 CPC is filed by the appellant challenging the correctness of the impugned judgment and decree in RFA No.70 of 2025 directing remand of the suit in C.S. No.111 of 2005 on the grounds inter alia that such a remand with de novo trial is not permissible and, hence, the same is liable to be interfered with followed by consequential directions issued. 4. Ms. Sahoo, learned counsel for the appellant submits that the suit was instituted by the appellant against the respondent for permanent injunction in respect of the schedule property with consequential relief sought for therein and it was Page 1 of 5 disposed of and decreed on contest restraining the respondent to enter upon the suit land and causing any kind of disturbance in his peaceful possession over the same. The further submission is that the judgment as at Annexure-2 in the suit was challenged by the respondent in appeal and the learned Court below disposed it of vide Annexure-1 with a direction to the Trial Court to appoint a Civil Court Commissioner and to dispose of the suit afresh within a stipulated period. The submission is that the learned Court below while remanding the suit for disposal directed a de novo trial for a decision on all the issues apart from engaging a Commissioner for the purpose of demarcation. The contention is that such a direction by the learned Court below for a decision by the Trial Court on all the contentious issued is impermissible and that apart, it could have issued a Commission and thereafter, disposing of the appeal on merit with the evidence already received and on record. Advancing such an argument, Ms. Sahoo, learned counsel for the appellant cited a decision of this Court in Nakula Sahu Vrs Suresh Chandra Beherdolai & others 2016 (I) OLR 624 with the submission that when there is a boundary dispute involved and the appellant has pleaded on record that encroachment is taking place at the behest of the respondent, the learned Court below was required to consider all such evidence already received from both the sides simultaneously appointing a Commission in terms of Order 26 Rule 9 CPC. Page 2 of 5 5. In Nakula Sahu (supra), this Court held and concluded that the dispute in case cannot be finally resolved without conducting demarcation of the suit plot and adjoining plots by a Survey Knowing Commissioner, the Appellate Court has the power to appoint a Commission when the controversy is as to identification, location or measurement of the land object being to give quietus to the issue involved. Essentially it has been held therein that the Appellate Court is to receive additional evidence under Order 41 Rule 27 CPC with appointment of Survey Knowing Commissioner as per Order 26 Rule 9 CPC thereof. Since an appeal is a continuation of the suit, hence, it has to be concluded that the Appellate Court has all the powers even to appoint a Survey Knowing Commissioner under Order 26 Rule 9 CPC, if in case the same is considered necessary and expedient and that is what has been held and observed by this Court in Nakula Sahu (supra). 6. Turning to the facts of the case, as made to reveal from the impugned judgment i.e. Annexure-1, this Court finds that the learned Court below has discussed the evidence received by the Trial Court on each and every issue and finally reached at the conclusion that measurement by a Survey Knowing Commissioner is necessary. Ms. Sahoo, learned counsel for the appellant submits that demarcation as has been directed is likely to resolve the dispute but the learned Court below was not right and justified to remand the suit as a whole for a fresh decision and disposal with a de novo trial. The Court is in Page 3 of 5 agreement with Ms. Sahoo, learned counsel on the objection against remand by the learned Court below for a fresh hearing of all the issues. 7. Learned Court below has lost sight of Order 41 Rule 27 CPC read with Rules 23, 23-A and 25 thereof and the intent and purport of the same while considering remand of the suit. Law is well settled that remand may be directed in case there is no evidence on record. It is the bounden duty of the Appellate Court to receive additional evidence under Order 41 Rule 27 CPC if the same necessary and expedient. Such receipt of evidence may be by the Appellate Court or directing the Trial Court to receive and transmit the same for disposal of the appeal. But, such an exercise has not been undertaken by the learned Court below though it has been concluded that the measurement of the suit land is absolutely necessary, hence, appointment of Survey Knowing Commissioner. But at the same time, while remanding, the learned Court below directed de novo trial. The detailed evidence is already received and the same shall have to be taken into account along with additional evidence with the demarcation of the schedule land held with the assistance of Survey Knowing Commissioner, to which, the learned Court below did possess jurisdiction instead of remand. This Court referring to the decision in Nakula Sahu (supra) is of the conclusion that the learned Court below was not right and justified to remand the suit for disposal on all issues as it directed appointment of Survey Knowing Commissioner and Page 4 of 5 upon receiving such evidence in terms of Order 41 Rule 27 CPC could have considered disposal of the appeal on merit and therefore, the impugned judgment as at Annexure-1 is liable to be disturbed and set at naught. 8. 9. Accordingly, it is ordered. In the result, the appeal filed under Order 43 Rule 1(u) read with Section 105 CPC by the appellant is allowed. As a necessary corollary, the impugned judgment in RFA No.70 of 2025 at Annexure-1 is hereby set aside with the direction to the learned Additional District Judge, Pattamundai to rehear the appeal upon receiving additional affidavit upon demarcation of the suit land by a Survey Knowing Commissioner either by himself or recorded through the court of 1st instance as considered proper and thereafter, considering the same and upon providing reasonable opportunity of hearing to both the sides proceed to dispose it of as per and in accordance with law. 10. In the circumstances, however, there shall be no order as to costs. (R.K. Pattanaik) Judge Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 25-Aug-2025 19:34:04 Page 5 of 5