Judgment:
S.C. Mohapatra, J.
1. Order of remand by the appellate Court is the grievance of the appellants in this appeal under Order 43, Rule 1(u), C.P.C.
2. Case of the plaintiff (respondent No. 1) is that he purchased the disputed property from defendant No. 2 (respondent No. 2) on the basis of a sale deed (Ext. 1) where the vendor clearly stated that she has transferable right over the property having got it in family partition. Case of the defendants (appellants) is that the disputed property belongs to deity Sri Durga Devi having been purchased by deceased Moti and the deceased husband of defendant No. 2 as Marfatdars and as such, defendant No. 2 had no transferable right over the same.
3. On the pleadings, the following issues amongst others were settled :--
'2. Is the suit liable to be dismissed for non-joinder of necessary parties?
3. Is the disputed property partible and transferable for consideration?
5. Had the defendant No. 2 any right, title and interest in the disputed property or possessory right?
6. Is the impugned sale deed in favour of the plaintiff void?
4. Defendant No. 2 was examined as P.W. 4. In cross-examination, she was asked about the installation of the deity and that the disputed property belonged to the deity. Plaintiff examined as P.W. 6 in his examination-in-chief stated that the suit property was settled with Dayanidhi, the deceased husband of defendant No. 2 in the proceeding under the Orissa Estates Abolition Act. He specifically stated that he made enquiry about deity Durga Thakurani and asserted that there is no such deity and the property does not belong to the deity. In cross-examination, he stated that he had seen the certified copy of the sale deed where Moti and Dayanidhi jointly purchased the suit land in the name of Jaya Durga Thakurani. He further stated that in the rent settlement order the suit land was settled in the name of the deity with Moti Bewa and Dayanidhi as the Marfatdar. Thus, it is clear that the plaintiff had knowledge of the deity and the property being purchased and settled in the name of the deity.
5. The trial Court while considering the issues Nos. 3, 5 and 6 came to the conclusion that there was no dedication in the real sense although the suit property was purchased in the name of the deity and decreed the suit,
6. The appellate Court, in the appeal filed by the present appellants, disapproved the finding of the trial Court that the property purchased in the name of the deity was a nominal debottar. The learned appellate Judge did not approve the trial Court entering into the discussion about the character of the property in the absence of any assertion in the plaint to that effect. He also found the appreciation of evidence by the trial Court to be defective. It was observed :
'9. The learned Sub Judge has not also paid any attention to either documentary evidence, namely the settlement made under Sections 5, 7 and 8 of the O. E. A. Act in the name of the deity and what would be its import or other oral evidence. Under such circumstances, it is desirable to reverse the finding of the trial Court and to send it back for retrial with the following directions : --
'That the trial court would give opportunity to the parties to amend their pleadings and to lead fresh evidence in support of their pleas and if he finds that from the pleas taken by the parties, the trial Court would be free to frame any other issue, if it so likes, then it would decide the suit on merits, while deciding the case, the evidence already recorded would be treated as such and a new issue may also be framed.
Whether the suit property was the secular or debottar property of Moti Bewa and Dayanidhi?'
7.-8. Mr. S. Misra (2), the learned Counsel for the appellants, submitted that the parties entered into contest with the knowledge that the property was purchased in the name of the deity and also that the same was settled in name of the deity. They led evidence in this regard. The trial Court also gave finding in respect of the property. Accordingly, the appellate Court was competent to decide the appeal on merits and there was no justification to remand the suit for fresh trial giving opportunity to the parties to amend the pleading and to adduce further evidence whenno prayer was made for amendment of the pleading or for adducing additional evidence by any party. Mr. P.K. Misra, the learned Counsel for the respondents, on the other hand submitted that in the interest of justice the matter having been remitted back, this Court ought not to interfere with the same, specially when the defendants 1 and 1(a) are not prejudiced in any manner as the decree has been set aside.
In order to appreciate the rival contentions, the scope of remand by the appellate Court is to be kept in view. It is not disputed that the remand in this case is under Order 41, Rule 23-A, C.P.C. It reads as follows : --
'23A. Remand in other cases-- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.'
This provision was added by the amendment to the Civil P.C. in Act 104 of 1976. Prior to the amendment, there were only two provisions for remand under Rules 23 and 25 of Order 41. Where the suit is disposed of on a preliminary issue and the Appellate Court requires the appeal to be decided on merits the power of remand can be exercised under Rule 23. Appellate Court has also power to keep the appeal pending and framing an issue, direct the trial Court to take evidence in the matter and to return the finding as is provided under Rule 25. Rules 23 and 25 nor being exhaustive prior to the amendment, the inherent power under Section 151, C.P.C. was being exercised for remitting back the suit for fresh trial. The legislature thought it prudent to incorporate the same in the statute itself without leaving it to the appellate Court for exercise of inherent power and provided an appeal against the said order. Since specific provision has been made, there is no scope for exercise of inherent power any more. Prior to the amendment the correctness of the order of remand in exercise of inherent power was being considered in the revisional jurisdiction of the Court. The power of revision is restricted in view of the language of Section 115, C.P.C. The power of appeal, however, is wider than the power of revision.
Therefore, legality and justifiability of an order of remand in exercise of the power under Rule 23-A of Order 41 can be examined in appeal.
9. Even if, Rule 23A has been added by amendment, the principle behind remand by the appellate Court has not undergone any change as the power of remand can be exercised where the appellate Court while reversing the decision of the trial Court considers a retrial necessary. The power is no doubt wide. Yet, wider is the power greater should be the restraint keeping in mind that early finality of a litigation is the public policy.
10. In (1957) 23 Cut LT 380 : (AIR 1957 Ori 201) (Mst. Urbasi Dharauni v. Chandra Dharua) the suit was decided on a preliminary point of res judicata and the merit was not considered. The appellate Court, however, reversed the decision which was challenged in second appeal. In second appeal the learned counsel for the respondent submitted that it was unfair on the part of the trial Judge to decide the suit on a preliminary issue without going into the evidence and therefore, in the interest of justice, the case should be sent back to the trial Judge for recording evidence and give a proper finding. This Court held that the parties proceeded upon certain admitted basis in the plaint and the written statement. When the defendants filed the certified copies of the judgment and the decree of the previous suit the plaintiffs even did not challenge at that stage that the findings arrived at in the previous suit were contrary to the pleadings in this suit. They straightway proceeded to argue the question. It was observed that it was open to the plaintiffs to have other evidence at the trial stage in order to assist the Court to come to a finding that the previous suit was not properly decided which they did nothing. The plaintiffs not having raised the slightest objection in the trial Court it was too late in second appeal to make prayer that the suit should go back to the trial Judge for a further finding after recording evidence.
In ILR (1959) Cut 410 : (AIR 1959 Orissa 38) (Dasarathi Chamar v. Balmukunda Das), this Court while considering the scope of remand held : --
'..........It is very well Known that it is certainly not the function of the Court to fill up the latches or the lacuna in proof of the case of the party unless he is fully satisfied that there was sufficient reason which prevented the plaintiff from taking proper steps to prove his case. The court cannot place himself in the position of an adviser to a party..........'
On the facts, it was held that the plaintiff had enough time to take steps to call for the document and there being no sufficient cause shown by the plaintiff as to why he did not take proper steps the appellate Court in remanding the case had exercised his jurisdiction with very serious and material irregularity on account of which the order of remand had been vitiated and was, therefore, illegal.
In ILR (1963) Cuttack 482 (Gadadhar Sahu v. Karsanbasta Patel) the trial Court gave opportunity to the parties to take out a commissioner which both parties declined to accept. In spite of it, the appellate Court remanded the matter for a further trial. It was held : --
'In view of the recalcitrant attitude of the parties themselves, the learned Subordinate Judge illegally exercised his jurisdiction in directing remand for a further trial contrary to the wishes of the parties..........'
The decision of the Supreme Court in M.S.C.A. No. 618 of 1960 decided on 14-11-1962 short-noted in 1962 SC (Notes) 415 (A. Sankaramian v. M.S. Lakshminarayana Moorthi) was referred to where it was observed that the power to order retrial after remand where there was already been a trial and evidence before the Court of first instance, cannot be exercised merely because the appellate Court is of the view that the parties who can lead better evidence in the Court of first instance have failed to do so. A trial de novo after setting aside a final order passed by a Court of first instance may, therefore, be made in exceptional circumstances where there has been no real trial of the proceeding or where allowing the order to stand would result in abuse of the process of the Court.
In the case reported in (1971) 37 Cut LT 195 : (AIR 1971 Orissa 303) (Basanta Misra v.Laxmi) the appellate Court remanded the entire suit after raising two additional issues. This Court held that the remand of the entire litigation to the trial Court was not warranted. The trial Court should have been called upon to return finding on these two issues and there was no justification to vacate the judgment of the trial Court and remand the entire litigation for a fresh determination.
11. On behalf of the respondent, the learned Counsel relied upon series of decisions of this Court where the cases were remanded to the trial Court in the interest of justice. In those cases either the scope of remand was not examined or the retrial was considered necessary. In the facts of this appeal, the plaintiff did not ask for amendment of the plaint. He did not ask for adducing additional evidence. The dispute was in issue and evidence had been led relating to the character of the debottar as to whether the same was nominal or real. The appellate Court could not have even kept the appeal pending and directed the trial Court to return a finding after taking evidence in exercise of power under Rule 25 of Order 41, C.P.C. Since the issue was directly involved and evidence was led in the case the appellate Court acted illegally and the principle laid down in ILR (1963) Cuttack 482 (supra) would be applicable to this case. Therefore, I am satisfied that the order of remand cannot be upheld.
12. In the result, the appeal is allowed and the appellate Court is directed to reconsider the appeal on the question on the materials available on record without being influenced by the findings given in the impugned order which is set aside. There shall be no order for costs in this appeal. Parties are directed to appear before the appellate Court on the 17th Nov., 1985 (Monday) on which day, the appellate Court shall fix a date of hearing of the appeal.