The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 354 of 2019 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] --------------- Ranjit Prasad Raut and others ...… Appellants -Versus- Balunkeswar Raut and others ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellants : M/s. Bibekananda Bhuyan, S. Sahoo & A.K. Biswal, Advocates For Respondents : Mr. S.P. Mishra, Sr. Advocate with M/s. Gokulananda Parida, S. Sahoo, B. Sahoo, Advocate __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 13th December, 2024 SASHIKANTA MISHRA, J. This is an appeal filed by the
Legal Reasoning
Defendant Nos.2 to 6 of the trial Court against a reversing judgment. The judgment passed by the learned Additional District Judge, Jagatsinghpur dated 23.09.2019 followed Page 1 of 8 by decree in RFA No. 34 of 2017 is under challenge, whereby the judgment dated 21.03.2017 followed by decree passed by learned Senior Civil Judge, Jagatsinghpur in Civil Suit No. 100/2011 was set aside. 2. For convenience, the parties are referred to as per their respective status in the Court below. 3. In view of the order proposed to be passed, the facts of the case are not referred to in detail. It would suffice to mention that the suit was filed by the plaintiff respondent for declaration of his right, title, interest and possession of the scheduled property and that the entry made in consolidation RORs in respect of Khata No. 369, 370 and 120 in the names of the defendant Nos.1 to 6 are wrong and illegal with other consequential reliefs. 4. The defendants contested the suit by filing written statement disputing its maintainability on the ground of absence of cause of action, limitation, law of estoppel and principle of res judicata and under Section 51 of the OCH & PFL Act apart from undervaluation and non-joinder of parties. Page 2 of 8 5. Basing on the pleadings of the parties, the trial Court framed the following issues for determination. “1. 2. 3. 4. 5. 6. 7. 8. 9. Is the suit maintainable in the eye of law? Is there any cause of action to file this suit? Is the suit barred by the law of limitation? Is the suit hit under the principle of estoppel and resjudicata ? Is the suit hit U/s.51 of the OCH and PFL Act? Is the suit hit U/s.9 of the Civil Procedure Code? Is the suit undervalued ? Is the suit bad for non-joinder and misjoinder of necessary parties? Is the defendant No.l the legally married wife of deceased Dhaneswar Raut or his concubine? 10. Has the plaintiff exclusive right, right interest over the suit land and the defendant have no manner of right, title, interest over the suit land? 11. Are the entry made in the consolidation RORs in Khata Nos.369, 370 and 120 in the names of defendant Nos.1 to 6 are wrong and illegal ? 12. Is the plaintiff entitled to the relief prayed for? 13. To what other relief, the plaintiff is entitled? 6. After analysing the evidence adduced by the parties, the trial Court dismissed the suit on contest against defendant Nos.2 to 6 and ex-parte against defendant Nos. 7 to 12. Being aggrieved, the plaintiff filed first appeal. The First Appellate Court, after taking note of Page 3 of 8 the relevant provisions of the Hindu Marriage Act, the settled position of law and the evidence on record, allowed the appeal and set aside the judgment and decree passed by the trial Court. Being further aggrieved, defendant Nos. 2 to 6 have preferred this appeal, which was originally admitted on the following substantial questions of law. “A. Whether the restrictions under section 16 of the Hindu Marriage Act, 1955 is retrospective in nature? B. Whether in view of the section 6 read with section 8 of the Hindu Succession Act, 1956, the property inherited by Dhaneswar from his father Madan will be his self-acquired property and on his death it will devolve upon his class 1 heirs in equal shares? E. Whether the Civil Judge has jurisdiction to sit over the adjudication made by the consolidation authorities in absence of any pleading with regard to the contingency spelt out in the case of Gulzar Khan -v- Commissioner of Consolidation & Others, reported in 1003(1) OLR 194?” 7. However, at the time of final hearing it was found that the First Appellate Court has not specified the relief which the appellant was entitled to. Thus, the above referred substantial questions of law were substituted and reformulated as follows: Page 4 of 8 “Whether the judgment and decree passed by the 1st Appellate Court is hit by the provision under Order 41 Rule 31 (d) of CPC.” 8.
Legal Reasoning
Heard Mr. Bibekananda Bhuyan, learned counsel for the appellants and Mr. S.P. Mishra, learned Senior Counsel with Mr. G. Parida, learned counsel for the defendant-respondents. 9. Both Mr. Bhuyan as well as learned Senior Counsel, Mr. Mishra submit that the judgment and decree passed by the First Appellate Court is unenforceable in the absence of specification of the relief granted therein. Thus, it amounts to passing a non-enforceable decree, which is not permissible in law. 10. After hearing learned counsel for the parties and on perusal of the judgment passed by the First Appellate Court, it is seen that the following order was passed by the First Appellate Court in the impugned judgment. is allowed on contest against “The appeal respondents No. 1, 2, 3, 4 and 5 and on ex parte against other respondents and the judgment and decree passed by the Civil Judge (Senior Division), in C.S. No.100 of 2011 on Jagatsinghpur Page 5 of 8 21.03.2017 and 31.03.2017 respectively is hereby set aside. The parties to bear their own cost.” The decree signed on 03.10.2019 also states the following; “The appeal is allowed on contest against respondents No. 1, 2, 3 and 4 and on ex parte against other respondents and the judgment and decree passed by the Civil Judge (Senior Division), Jagatsinghpur in C.S. No.100 of 2011 on 21.03.2017 and 31.03.2017 respectively is hereby set aside. The parties to bear their own cost.” 11. It is evident that though the appeal was allowed on contest against respondent Nos.1. 2, 3 & 4 and ex- parte against other respondents and the judgment and decree of the trial Court was set aside, yet the relief to which the appellant is entitled, has not been specified. It would be apposite at this stage to refer to the provision under Order 41, Rule-31 of CPC, which is reproduced hereinbelow; “31. Contents, date and signature of judgment.— The judgment of the Appellate Court shall be in writing and shall state— (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” [ Emphasis added] Page 6 of 8 12. In the instant case, the decree appealed from was reversed and therefore, as per Clause-(d) of Rule 31, the judgment is required to indicate the relief to which the appellant is entitled. It would also be profitable to refer to the provision under Order-41, Rule-35, which reads as follows: “35. Date and contents of decree.—(1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced. (2) The decree shall contain the number of the appeal, the names and descriptions of the clear appellant and specification of the relief granted or other adjudication made. respondent, and a (3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid. (4) The decree shall be signed and dated by the Judge or Judges who passed it:” [Emphasis supplied] 13. Thus, from a conjoint reading of the above provisions, it is manifest that the appellate authority has to clearly specify the relief granted in the case. As already seen, neither the judgment nor the decree passed by the First Appellate Court in the instant case specifies the relief Page 7 of 8 to which the appellant before it is entitled to. This Court therefore, finds considerable force in the submission made by learned counsel for the parties that the decree passed by the first appellate Court is an unenforceable one and therefore, cannot be the subject matter of second appeal. 14. For the foregoing reasons therefore, the second appeal is allowed. The impugned judgment and decree are hereby set aside. The first appellate Court is directed to hear the appeal afresh and pass judgment and decree specifying the relief granted to the parties. The suit being of the year 2011, the first appellate Court shall do well to dispose of the appeal as early as possible, preferably within a period of three months from the date of production of certified copy of this order by either of the parties. …………….……………. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 13th December, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Dec-2024 19:22:36 Page 8 of 8