Passing Of Final Order Pursuant To Remand Does Not Render Appeal Under Order XLIII Rule 1(U) CPC Defunct: Allahabad High Court

“The order of remand under the statutory scheme would, therefore, be seen to have independent existence and cannot be held to have been nullified merely for the reason that the remand order has subsequently been given effect and the point on which the remand had been made, has been decided,” held Justice Dr. Yogendra Kumar Srivastava.

The Court further observed that the remand order is an independent order and is appealable. Thus, the substantive right of a person aggrieved by remand order of the First Appellate Authority cannot be taken away by passing of an order by the Trial Court on the point of remand. The Court held the order passed after the remand is dependent on the remand order. Once the remand order is held to be invalid, any consequential order or proceedings “would ipso facto cease to have effect.”

Contentions of the Parties

A preliminary objection was raised by the Counsel for Respondent against the maintainability of the appeal against the remand order as the order of remand had already been carried out, in the sense that, pursuant to the remand order, a fresh order had already been passed, remand order could not be challenged in appeal. Further, it was argued that the subsequent order was appealable, thus, the present appeal against the remand order is not maintainable.

Per Contra, Counsel for the Appellant argued that passing of a consequential order does not take away the right to appeal under Order XLIII, Rule 1(u) against the remand order.

High Court Verdict

The question before the Court was “whether the passing of a final order pursuant to the remand would constitute a bar either to the institution or the hearing of an appeal under Order XLIII Rule 1(u) against the remand order.”

The Court noted that the CPC creates neither an express nor implied bar on the right to appeal if the order of remand has been carried out. Section 104 read with Order XLIII Rule 1 creates a substantive right of appeal against the orders provided therein, which cannot be taken away unless there is a specific provision of law to that effect.

“The right of appeal, thus conferred by the statute, is a substantial right, and in the absence of any express provision to the contrary, it would not be legitimate to read into the statutory provision granting a right of appeal, any limitation or disability which the legislature did not deem it appropriate to insert. The abrogation of a statutory right of appeal is not to be readily inferred, particularly in a situation where non­filing of such an appeal has the effect of imposing a serious disability on the right of the party concerned from disputing the correctness of the order at a subsequent stage.”

The Court observed that legislative intent was to allow parties to have the right to appeal under Section 104 read with Order XLIII Rule 1 against the remand order. If an appeal is not filed against the remand order before the passing of the consequential order, the same would attract the bar under Section 105(2) of the Code. The Court observed that such restrictive reading of the provisions would cause serious prejudice to the parties which is not the intention of the legislature.

Section 105(2) creates a bar on disputing the correctness of a remand order if it has not been challenged in appeal by the aggrieved party.

The Court held that the later order does not supersede the remand order. If the remand order passed by the First Appellate Authority has been successfully challenged, the consequential order by the Trial Court on the point of remand would be rendered non-est.

“It may also be taken note of that the litigant has a statutory right of appeal against the order of remand, and he also has a right to contest the proceedings before the trial court pursuant to the order of remand. The two rights being independent, the exercise of one such right would not constitute a bar to the exercise of the other. It would not be a question of a choice between two alternative rights; rather, it would be the same right that the party concerned may agitate both in the appeal against the remand order and at further stages of the trial consequent to the remand.”

Rejecting the objection to the maintainability of appeal, the Court held that an appeal against the remand order would not be rendered defunct or inconsequential by passing of a final order giving effect to the terms of the remand order if it is otherwise in order.

Case Title: Smt. Yasmeen Zia v. Smt. Haneefa Khursheed And 2 Others

Case Citation: 2023 LiveLaw (AB) 345

Counsel for Appellant: Devansh Misra

Counsel for Respondent: Pankaj Agarwal