IN THE HIGH COURT OF ORISSA AT CUTTACK SAO No.19 of 2023 A. Sabitri …. Appellant Mr. Banshidhar Baug, Senior Advocate -Versus-

Bijayini Mallick …. Respondent Mr. M.K. Dash, Advocate CORAM:

MR. JUSTICE R.K. PATTANAIK

ORDER

05.12.2025 Order No.

14. 1. Heard Mr. Baug, learned Senior Advocate appearing for the appellant.

2. None appears for the respondent at the time of hearing.

3. Instant appeal is filed by the appellant assailing the correctness of the impugned judgment dated 20^th May, 2023 as at Annexure-1 passed in connection with R.F.A. No.72 of 2013 by the learned 4^th Additional District Judge, Bhubaneswar, whereby, the judgment and decree dated 24^th August, 2013 of learned Civil Judge, Junior Division, Bhubaneswar in C.S. No.519 of 2009 was set aside with the matter remitted back for trial and disposal allowing the respondent to adduce evidence and the defendants as well on the contentious issue involved on the grounds inter alia that such a decision of remand of the suit is legally untenable.

4. Mr. Baug, learned Senior Advocate for the petitioner would submit that the remand is impermissible and that apart, the learned court below entertained request with an application received from respondent No.1 for additional evidence in terms of Order 41 Rule 27 CPC and it has been allowed without any objection invited from the appellant. The further submission is that the husband of the appellant was defendant No.2 in the suit and he died during the pendency of the appeal and though, survived by their children, no substitution was carried out. It is contended that without any real participation and in absence of any objection received from the appellant (defendant No.6 in the suit), the learned court below directed such remand on the premise that further evidence is necessary. The contention Mr. Baug, learned Senior Advocate is that the learned court below could not have considered the ground of additional affidavit and remanded the suit in absence of any such pleading on record and therefore, the impugned judgment dated 20^th May, 2024 at Annexure-1 is liable to be interfered with and set at naught.

5. The suit in C.S. No.519 of 2009 was instituted by respondent No.1 seeking relief of permanent injunction in respect of the schedule property and therein, the appellant’s husband was defendant No.2 and it was finally disposed of and dismissed by the judgment dated 24^th August, 2013. As against the dismissal of the suit, respondent No.1 preferred the appeal in R.F.A. No.72 of 2013 and it resulted in disposal with such an order of remand. According to the learned court below additional evidence is necessary and recording such plea of respondent No.1 considered it proper to remit the matter back. Mr. Baug, learned Senior Advocate would submit that such an application under Order 41 Rule 27 C.P.C. was moved before the learned court below and consequently, the remand order was passed.

6. In fact, from the judgment as at i.e. Annexue-1, it is made to reveal that such an application seeking additional evidence was moved from the side of respondent No.1 and on such premise, the remand of the suit was directed. The appeal was disposed of ex parte against the respondents, with such an order of remand and fresh trial by the learned Civil Judge, Junior Division, Bhubaneswar. The Court recorded the submission of Mr. Baug, learned Senior Advocate that the husband of the appellant died during the pendency of the appeal and his LRs were not substituted. It is submitted that even though, the appellant was on record but ultimately, the appeal was disposed of ex parte without any such substitution considered. The dispute is over the suit schedule property claimed to have been purchased by both the sides. But, the suit is for injunction simplicitor with consequential relief sought for by respondent No.1. Considering the nature of dispute inter se parties and death of husband of the appellant during the pendency of the appeal, the Court is of the view that withou