A suit for permanent injunction without seeking a declaration of title, when the defendant refutes the plaintiff's title over the land, is not maintainable.

JUDGMENT :

R. Dash, J. - This appeal is against the order dated 23.2.2012 passed by the learned District Judge, Puri in R.F.A. No. 78 of 2011 setting aside the judgment and decree of the learned Civil Judge (Junior Division), Puri in C.S. No. 171 of 2010 directing an open remand of the suit to the trial court for fresh disposal. The plaintiff-appellants filed the suit for permanent injunction which was decreed by the learned trial court vide its judgment dated 31.8.2011. The unsuccessful respondent-defendant preferred appeal before the learned District Judge who has passed the impugned order remanding the case to the trial court for fresh disposal after affording opportunity to the parties to bring in necessary amendments in their pleadings and adducing further evidence.

2. Observing that the suit for permanent injunction without seeking for a declaration of title, particularly when the defendant refutes the title of the plaintiff over the suit land, is not maintainable and that the learned trial court under such circumstances should have directed the plaintiffs to amend the plaint in order to cure the defects, the learned appellate court passed the impugned order remanding the case to the trial court with direction to allow opportunity to the parties to make admissible amendment and to record further evidence adduced by the parties.

3. The plaintiffs, who were the appellants in this Second Appeal, contend that a person having possessed a title can protect his possession by maintaining a suit for injunction against another trying to dispossess him and therefore, in the instant case when the defendant has no right, title and interest in the disputed land, a suit for permanent injunction simplicitor is maintainable. It is contended that the learned lower appellate court committed error in law in remanding the suit by observing that a relief of declaration of title is necessary to be taken in the plaint, more so when the plaintiff-appellants do not intend to pray for such a relief. It is further contended that without considering the scope for applicability of the provisions contained in Rule 24 or 25 of Order 41 CPC, the order of open remand has been passed which is not sustainable.

4. Learned counsel for the respondent admits that the order of open remand, in the facts and circumstances of the case, is not sustainable.

5. On perusal of the judgment of the learned appellate court it is found that without going to adjudicate on any other points for determination and only after considering the objection on the maintainability of the suit on the ground that the plaintiffs have not sought for a declaration of their title even by amending the plaint despite of the fact that the defendant in his W.S. has refuted the title, the learned lower court opined it to be expedient to remand the case to the trial court for disposal afresh after opportunity to the parties to make admissible amendments of their pleadings. The order of remand seems to be one under Rule 23-A of the C.P.C. It is well settled that provision under Rule 23-A should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. In Nishi Swain and Others Vs. Bikala Charan Swain, it has been held that before an order of remand under Order 41 Rule 23-A C.P.C. is made, 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.

6. In Harmohan Mishra & another v. Anapurna Dibya & others, 1987 (II) OLR 157 relied on in Hata Swain (dead) his legal heir Ramesh Ch. Swain and Others Vs. State of Orissa, it has been pointed out as follows:

It is not the duty of a Court to necessarily record a conclusive finding and insist that the best evidence should be brought on record by the parties for that purpose. The anxiety of the Court does not extend to that extent. If the