Nishi SwaIn and ors. Vs. Bikala Charan Swain - Court Judgment

SooperKanoon Citationsooperkanoon.com/534268
SubjectCivil
CourtOrissa High Court
Decided OnOct-21-1986
Case NumberMisc. Appeal No. 113 of 1983
JudgeS.C. Mohapatra, J.
Reported in1986(II)OLR654
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 23A and 25
AppellantNishi SwaIn and ors.
RespondentBikala Charan Swain
Appellant AdvocateB.M. Patnaik and ;Dhuliram Patnaik
Respondent AdvocateS.P. Misra, ;D. Das, ;S. Latif and ;Mira Ghosh
DispositionAppeal allowed
Cases Referred(Rushi and Anr. v. Madan Behera and
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - so it is badly necessary in this case that a commissioner should be appointed to locale and draw the line of demarcation in terms of the partition deed and also point out the area in dispute as claimed by the defendant.s.c. mohapatra, j.1. this appeal by the plaintiff under order 43, rule 1(u), cpc, arises out of an order of remand.2. in the impugned order, the appellate court observed ;'i need not go into the merit of the judgment which has gone in favour of the plaintiff as there are some salient points which have not been thrashed out in the said judgment and as such in my view the said suit ought to be remanded for clarification on the said points 'at another stage dealing with the counter claim by the defendant, it was observed ;'in the said counter claim he has given the description of the land fallen to his share in a general way without appending a map in respect of the suit property claimed by him. so it will not be possible to draw the actual line of demarcation between their respective shares without further verification of the spot. so it is badly necessary in this case that a commissioner should be appointed to locale and draw the line of demarcation in terms of the partition deed and also point out the area in dispute as claimed by the defendant.'3. i am not impressed by both the reasons given for remanding the matter to the trial court. as the law stands now, power of remand is vested in the appellate court under rule 23, 23-a and 25 of order 41, cpc. rule 23 is not applicable to this case since the suit has not been disposed of on a preliminary issue.-. the consideration would have been different if remand would have been under rule 25 which requires that the appeal shall be kept pending and an issue newly framed is to be sent back to the trial court for returning the finding. this is, however, a case of open remand under order 41, rule 23-a, cpc. in a decision reported in air 1986 ori. 207 (rushi and anr. v. madan behera and another), i have expressed :'...the appellate court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial.'i may make it clear that order 41, rule 23-a, cpc, should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. where, however, remand is felt necessary after judicial consideration and rule 25 is considered not to be adequate, appellate court may consider the question of open remand under rule 23-a.4. in the result, the appellate order is set aside and the appeal is allowed. there shall however be no order as to costs of this court.
Judgment:

S.C. Mohapatra, J.

1. This appeal by the plaintiff under Order 43, Rule 1(u), CPC, arises out of an order of remand.

2. In the impugned order, the appellate Court observed ;

'I need not go into the merit of the judgment which has gone in favour of the plaintiff as there are some salient points which have not been thrashed out in the said judgment and as such in my view the said suit ought to be remanded for clarification on the said points '

At another stage dealing with the counter claim by the defendant, it was observed ;

'In the said counter claim he has given the description of the land fallen to his share in a general way without appending a map in respect of the suit property claimed by him. So it will not be possible to draw the actual line of demarcation between their respective shares without further verification of the spot. So it is badly necessary in this case that a commissioner should be appointed to locale and draw the line of demarcation in terms of the partition deed and also point out the area in dispute as claimed by the defendant.'

3. I am not impressed by both the reasons given for remanding the matter to the trial Court. As the law stands now, power of remand is vested in the appellate Court under Rule 23, 23-A and 25 of Order 41, CPC. Rule 23 is not applicable to this case since the suit has not been disposed of on a preliminary issue.-. The consideration would have been different if remand would have been under Rule 25 which requires that the appeal shall be kept pending and an issue newly framed is to be sent back to the trial Court for returning the finding. This is, however, a case of open remand under Order 41, Rule 23-A, CPC. In a decision reported in AIR 1986 Ori. 207 (Rushi and Anr. v. Madan Behera and another), I have expressed :

'...The appellate Court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial.'

I may make it clear that Order 41, Rule 23-A, CPC, should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. Where, however, remand is felt necessary after judicial consideration and Rule 25 is considered not to be adequate, appellate Court may consider the question of open remand under Rule 23-A.

4. In the result, the appellate order is set aside and the appeal is allowed. There shall however be no order as to costs of this Court.