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IN THE HIGH COURT OF ORISSA AT CUTTACK
G.SATAPATHY
Raina Malik – Appellant
Versus
Kailash Malik – Respondent
| Table of Content |
|---|
| 1. partition of joint family property. (Para 2 , 3) |
| 2. issues framed and adjudication process. (Para 4) |
| 3. parties’ arguments on partition. (Para 5) |
| 4. critique of remand order and judicial reasoning. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 5. conclusion and order of appeal. (Para 13) |
JUDGMENT:
1. This appeal under Order-XLIII Rule-1(u) r/w Sec. 105 of the Code of Civil Procedure, 1908 (in short “the CPC”) is directed against the reversing judgment passed on 16.08.2023 in RFA No.02 of 2008 by which the learned Additional District Judge, Jajpur, while setting aside the judgment and decree dated 05.10.2007 and 12.10.2007 passed by the learned Civil Judge, (Sr. Division), Jajpur in T.S. No. 233 of 1996 dismissing the suit of the Plaintiffs, has remitted the aforesaid suit to the learned Sr. Civil Judge for fresh disposal in the light of observation made in the judgment passed in the first appeal.
2. The short facts involved in this case in precise are that one late Mahendra Malik and Dibakar Malik who were the predecessors in interest of the principal Respondents in this present appeal had instituted the suit against the present Appellants and Proforma Respondents in the Court of
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 First Appellate Court can remand a partition suit for inclusion of omitted joint family properties to ensure equitable distribution among coparceners.
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 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....
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.
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.
Appellate courts can remand cases for retrial when necessary parties are absent, emphasizing the importance of inclusive representation in ancestral property disputes.
The First Appellate Court erred by failing to frame appropriate consideration points under C.P.C., affecting the legality of its judgment in the partition suit.
An appellate court's order of remand must not introduce new issues not raised by the parties and should only be issued when necessary for justice, adhering to existing pleadings and evidence.
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