The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.14 of 2023 Basudev Mishra & another Appellants M/s. Sandeep Rath, Advocate & Associates …. -Versus- Chittaranjan Mishra …. Respondent Mr. P.K. Mishra, Advocate & Ms. Samapika Mishra, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 14.08.2025 Order No. 05. 1.
Legal Reasoning
Heard Mr. Rath, learned counsel for the appellants and Ms. Mishra, learned counsel for the respondent. 2. Instant appeal is filed by the appellants in terms of Order 43 Rule 1(u) of the Civil Procedure Code, 1908 assailing the impugned judgment dated 27th July, 2023 in R.F.A. No.13 of 2023 at Annexure-2 corresponding to the suit in C.S. No.364 of 2015 setting aside the judgment and decree passed therein as per Annexure-1 on the grounds stated. 3. The respondent instituted the suit i.e. C.S. No.364 of 2015 seeking relief, such as, confirmation of possession, declaration of the sale deed dated 23rd September, 2015 (RSD No.11391501150) to be null and void and for permanent injunction restraining appellant No.2 from entering inside the suit premises and at the same time, preventing appellant No.1 Page 1 of 5 from further alienation in respect of the dwelling house with costs etc. The said suit was dismissed vide Annexure-1 and was challenged by the respondent in RFA No,13 of 2023 and while dealing with the same, learned District Judge, Nayagarh formulated an additional issue as to whether the settlement of the suit land is in the name of for appellant No.1 and made under the OEA Act and in that case, it would enure to the benefit of other co-sharers like the respondent, hence, remitted the matter back for a fresh decision by learned Senior Civil Judge, Khandapada. Such order of remand by the Court in appeal as per Annexure-2 is under challenge by the respondents therein on the ground that there has been no finding as such with regard to the other issues involved. 4. Mr. Rath, learned counsel for the appellants would submit that such remand of the suit could not have been in terms of Order 41 Rule 23 CPC. The further submission is that any such remand is permissible under Order 41 Rule 23-A CPC in case no preliminary issue is involved and as per Rule 25 thereof but without considering the said aspect, learned District Judge, Nayagarh set aside the judgment in C.S. No.364 of 2015 and directed the learned Senior Civil Judge, Khandapada to determine the issue additionally formulated and to dispose it of according to law. Such a course of action by learned Court below, as according to Mr. Rath, learned counsel for the petitioner, is not in accordance with the provision of Order 41 Cr.P.C., hence, the impugned judgment i.e. Annexure-2 is Page 2 of 5 liable to be set aside followed by consequential directions issued. 5. On the contrary, Ms. Mishra, learned counsel for the respondent justifies the impugned decision of the learned District Judge, Nayagarh as at Annexure-2 by contending that the remand should have been in accordance with Order 41 Rule 25 CPC, inasmuch as, an additional issue was formulated for a decision by the Court of 1st Instance. It is contended that the source of title is allegedly based on an order under Section 8-A of the OEA Act and therefore, the learned Court below did not err or commit any illegality by remanding the suit exercising jurisdiction under Order 41 Rule 25 CPC and hence, the impugned judgment as at Annexure-2 does not suffer from any legal infirmity and while advancing such an argument, Ms. Mishra, learned counsel for the respondent cited a decision in Dileswar Patel & others Vrs. Mst. Binodini Patel & others AIR 1983 Orissa 185 with the submission that any such settlement under Section 8-A of the OEA Act it to enure to the benefit of all the co-sharers including the respondent. 6. Mr. Rath, learned counsel for the appellants in response to the above cited the following decision, such as, Rushi@Rushi Behera & another Vrs. Madan Behera & another 1986 OLR 198 and Sirajudheen Vrs. Zeenath and others 2023(I) OLR (SC) 922 dealing with the scope of exercise of jurisdiction in case of remand permissible under Order 41 Rule 23-A CPC. Page 3 of 5 7. The dispute between the respondent and appellant No.1 is rested on the source of title. It is not denied by the respondent that the settlement has been in terms of Section 8-A of the OEA Act. A part of the property involved has been disposed of by appellant No.1 and according to the Court of 1st instance, it has to be held to be on account of legal necessity. In fact, the claim of the respondent is that he being the co-shearer is entitled to the interest over and in respect of the schedule property along with appellant No.1 but having regard to the fact that the title is claimed to have been derived by an order of the OEA Authority, whether, such is the source of title, is a question required to be answered and since, the learned Court below reached at a conclusion that the issue needs an adjudication, hence, formulated the same with a direction to the learned Senior Civil Judge, Khandapada to deal with the same. If any such settlement has been held as per Section 8-A of the OEA Act, it could be concluded that the respondent has an interest in the property involved. Hence, the learned Court below with such a conclusion reached at and having no evidence received by the learned Senior Civil Judge, Khandapada on any such issued having ever been framed and formulated before disposal of a suit, directed the remand. Of course, such remand as has been held by learned Court below should have been directed in terms of Order 41 Rule 25 CPC and not as per Rule 23 CPC thereof. At the same time, it cannot be held that there has been an open remand as contended by Mr. Rath, learned counsel for the appellants. Page 4 of 5 8. Having said that and recording the submissions of Ms. Mishra, learned counsel for the appellants and Mr. Rath, learned counsel for the respondent and regard being had to the scope of remand and taking into account, the citations referred to hereinbefore on the said point and the fact that any such settlement under Section 8-A of the OEA Act is to enure to the benefit of all the co-sharers, the conclusion of the Court is that no wrong or illegality has been committed by the learned Court below directing such remand and hence, the same is not required to be interfered with. Accordingly, it is ordered. 9.
Decision
In the result, the appeal stands disposed of confirming the impugned judgment at Annexure-2, however, with a direction to the learned Senior Civil Judge, Khandapada to deal with the suit in C.S. No.364 of 2015 in the light of the decision in RFA No.13 of 2023 and to ensure disposal of the same at the earliest preferably within a period of three months from the date of receipt of a copy of this order. It is made clear that the suit shall be disposed of receiving any such further evidence, if necessary, only on the issue formulated by the Court in appeal without a de novo trial. 10. Issue urgent certified copy of this order as per rules. Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 20-Aug-2025 10:35:07 (R.K. Pattanaik) Judge Page 5 of 5