Judicial review under Article 227 is not available when an appeal under the CPC exists; an appellate court can remand for fresh adjudication while preserving the continuity of the original suit.

JUDGMENT :

(DEVASHIS BARUAH, J.)

Heard Mr. S Biswas, the learned counsel appearing on behalf of the petitioner.

2. The instant petition is taken up for disposal at the motion stage itself.

3. The petitioner herein has assailed the judgment and decree dated 11.04.2025 passed by the Court of the learned Civil Judge, (Junior Division) No. 1, Sonitpur, Tezpur in Title Suit No. 28/1997 on the ground that the said judgment and decree is in contravention to the provisions of Order XLI Rule 25 of the Code of Civil Procedure, 1908 (for short, ‘the Code’). In addition to that, the petitioner has also assailed the order dated 20.04.2018 passed by the Court of the learned Civil Judge, Sonitpur Tezpur in Title Appeal No.5/2001. The petitioner has also sought for directions upon the learned First Appellate Court to restore the Title Appeal being Title Appeal No.5/2001 and pass appropriate orders in accordance with the provisions of Order XLI Rule 25 of the Code.

4. It is seen from the materials on record that the respondent herein as plaintiff had filed a suit being Title Suit No.28/1997 claiming his right, title and interest over the suit land as well as for consequential reliefs. The suit was dismissed by the Court of the learned Civil Judge (Junior Division) No.1, Sonitpur vide the judgment and decree dated 30.09.2000.

5. Being aggrieved, the plaintiff preferred an appeal being Title Appeal No.5/2001 before the Court of the learned Civil Judge, Sonitpur. The said appeal was dismissed vide a judgment and decree dated 13.12.2006 thereby confirming the judgment and decree passed by the learned Trial Court.

6. The plaintiff/respondent herein thereupon preferred a second appeal before this Court which was registered and numbered as RSA No.35/2007. This Court vide the order dated 15.02.2017 set aside the judgment and decree passed by the learned First Appellate Court on the ground of non-compliance to the provisions of Order XLI Rules 31 and 33 of the Code. Paragraphs 17 and 18 of the order passed by this Court in RSA No.35/2007 being relevant are reproduced hereinunder:

“17. Considering the same, this Court decide the substantial question of law in favour of the plaintiff/appellant and accordingly set aside the judgment and decree passed by the first appellate court and remand the same for passing fresh judgment and decree within the parameter of order XLI Rules 31 and 33of the CPC.

18. The learned first appellate court shall dispose of the said matter after hearing the parties afresh preferably within a period of three months from the date of receipt of the LCR. It is also pertinent to mention herein that the learned first appellate court will issue notice to the parties concerned fixing a date for hearing.”

7. From a perusal of the above-quoted paragraphs, it would be seen that the learned Coordinate Bench of this Court had set aside the judgment and decree passed by the learned First Appellate Court and remanded the same for passing a fresh judgment and decree within the parameters of Order XLI, Rule 31 and 33 of the Code. In addition to that, there were specific directions issued to the learned First Appellate Court to dispose of the said matter after hearing the parties afresh, preferably within a period of three months from the date of receipt of the LCR.

8. The records further reveal that thereupon the appeal was taken up for disposal by the learned First Appellate Court vide an order dated 20.04.2018, the learned First Appellate Court remanded the suit back to the learned Trial Court to pass a fresh judgment in