The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.19 of 2023 A. Sabitri Appellant Mr. Banshidhar Baug, Senior Advocate …. -Versus- Bijayini Mallick …. Respondent Mr. M.K. Dash, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 05.12.2025 Order No. 14. 1. Heard Mr. Baug, learned Senior Advocate appearing for the appellant. 2. 3. None appears for the respondent at the time of hearing. Instant appeal is filed by the appellant assailing the correctness of the impugned judgment dated 20th May, 2023 as at Annexure-1 passed in connection with R.F.A. No.72 of 2013 by the learned 4th Additional District Judge, Bhubaneswar, whereby, the judgment and decree dated 24th August, 2013 of learned Civil Judge, Junior Division, Bhubaneswar in C.S. No.519 of 2009 was set aside with the matter remitted back for trial and disposal allowing the respondent to adduce evidence and the defendants as well on the contentious issue involved on the grounds inter alia that such a decision of remand of the suit is legally untenable. Page 1 of 5 4. Mr. Baug, learned Senior Advocate for the petitioner would submit that the remand is impermissible and that apart, the learned court below entertained request with an application received from respondent No.1 for additional evidence in terms of Order 41 Rule 27 CPC and it has been allowed without any objection invited from the appellant. The further submission is that the husband of the appellant was defendant No.2 in the suit and he died during the pendency of the appeal and though, survived by their children, no substitution was carried out. It is contended that without any real participation and in absence of any objection received from the appellant (defendant No.6 in the suit), the learned court below directed such remand on the premise that further evidence is necessary. The contention Mr. Baug, learned Senior Advocate is that the learned court below could not have considered the ground of additional affidavit and remanded the suit in absence of any such pleading on record and therefore, the impugned judgment dated 20th May, 2024 at Annexure-1 is liable to be interfered with and set at naught. 5. The suit in C.S. No.519 of 2009 was instituted by respondent No.1 seeking relief of permanent injunction in respect of the schedule property and therein, the appellant’s husband was defendant No.2 and it was finally disposed of and dismissed by the judgment dated 24th August, 2013. As against the dismissal of the suit, respondent No.1 preferred the appeal in R.F.A. No.72 of 2013 and it resulted in disposal with such an order of remand. According to the learned court below Page 2 of 5 additional evidence is necessary and recording such plea of respondent No.1 considered it proper to remit the matter back. Mr. Baug, learned Senior Advocate would submit that such an application under Order 41 Rule 27 C.P.C. was moved before the learned court below and consequently, the remand order was passed. 6. In fact, from the judgment as at i.e. Annexue-1, it is made to reveal that such an application seeking additional evidence was moved from the side of respondent No.1 and on such premise, the remand of the suit was directed. The appeal was disposed of ex parte against the respondents, with such an order of remand and fresh trial by the learned Civil Judge, Junior Division, Bhubaneswar. The Court recorded the submission of Mr. Baug, learned Senior Advocate that the husband of the appellant died during the pendency of the appeal and his LRs were not substituted. It is submitted that even though, the appellant was on record but ultimately, the appeal was disposed of ex parte without any such substitution considered. The dispute is over the suit schedule property claimed to have been purchased by both the sides. But, the suit is for injunction simplicitor with consequential relief sought for by respondent No.1. Considering the nature of dispute inter se parties and death of husband of the appellant during the pendency of the appeal, the Court is of the view that without substitution of his LRs and real participation from the side of the respondents therein, the learned court below could not have considered any such remand of the suit on the premise of the Page 3 of 5 need for additional evidence upon receiving an application under Order 41 Rule 27 CPC. Law is well settled that a court has to consider remand subject to fulfilment of the conditions of Order 41 Rules 23, 23-A and 25 CPC, whichever is applicable to a given set of circumstances. In the instant case, merely for the reason that additional evidence was sought for and without considering the requirement of such evidence, morefully when no objection could be invited in absence of the respondents, who had been set ex parte, the learned court below ought to have examined the need for such remand keeping in view the provisions as above. In other words, the Court is of the conclusion that the learned court below could not have directed de novo trial and for disposal of the suit with an order of remand without examining the prerequisite for such remand keeping in view the provisions of Order 41 CPC. A request received from respondent No.1 for any such additional evidence could not have prevailed upon the learned court below to direct the remand of the suit, hence, therefore, for the reasons stated hereinabove, the Court is of the ultimate view that such a remand as has been directed cannot be sustained in law. 7. 8. Accordingly, it is ordered. In the result, the appeal stands allowed. As a necessary corollary, the impugned judgment in RFA No.72 of 2013 is hereby set aside with the direction to the learned 4th Additional District and Sessions Judge, Bhubaneswar to consider disposal of the appeal on merit upon restoration of the same providing an opportunity of hearing to the appellant keeping in view the Page 4 of 5 observations made hereinabove and having regard to the settled position of law on additional evidence, if necessary, in terms of Order 41 Rule 27 CPC. 9. In the circumstances, however, there is no order as to the costs. 10. Issue urgent certified copy of this order as per rules. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 08-Dec-2025 14:04:11 Page 5 of 5