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IN THE HIGH COURT OF ORISSA AT CUTTACK
R.K. PATTANAIK
Nrusinghanath Singh – Appellant
Versus
Kadambini Singh – Respondent
| Table of Content |
|---|
| 1. appellants challenge remand judgment. (Para 1) |
| 2. plaintiffs claim partition of property. (Para 2 , 3 , 4) |
| 3. defendant claims ownership through sale. (Para 5 , 6 , 11) |
| 4. defendants contest remand's legality. (Para 7 , 12) |
| 5. court reviews remand conditions and justification. (Para 8 , 10 , 13 , 14 , 16) |
| 6. court decides against remanding suit. (Para 9 , 18) |
| 7. court orders appeal to be allowed. (Para 19 , 20) |
JUDGMENT :
1. Instant appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 is preferred by the appellants assailing the impugned judgment in T.A. No.78 of 2001 of the learned Additional District Judge, FTC (II), Cuttack setting aside the findings of the learned 2nd Additional Civil Judge (Senior Division), Cuttack in T.S. No.71 of 1988 by judgment and decree dated 17th July, 2001 remanding the suit for a fresh hearing and disposal on the grounds inter alia that such decision is not legally tenable, hence, therefore, the same isliable to be interfered with and set at naught.
3. On the contrary, it is pleaded that defendant No.2 was first married to Sundarmani Singh and defendant No.1 is their son and plaintiff No.1 is the daughter of Biswanath Singh
Remand of a suit must comply with specified circumstances; lacking sufficient evidence on record, the appellate court erred in ordering a retrial instead of addressing the appeal on merits.
Judicial efficiency mandates that remand for fresh disposal should only occur when necessary; a remanding court must determine the parties' shares or justify retrial necessity, which was neglected he....
The remand order can only be made if the trial court skips finding on certain issues or decides the suit only on a preliminary issue. The court found that the trial courts had decided the suits on me....
An appellate court's remand order under Order XLI Rule 23-A CPC must be justified by clear error in trial court decisions, with findings on possession and title needing consideration before partition....
The appellate court must provide cogent reasons for remanding a case, and it should decide based on existing evidence if sufficient, rather than remanding without due justification.
The First Appellate Court can remand a partition suit for inclusion of omitted joint family properties to ensure equitable distribution among coparceners.
Point of law: Rule 23- A it is evident when the suit is decreed otherwise than on a preliminary issue and retrial is considered necessary, it is only then that the case has to be remanded. In other w....
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