The Allahabad High Court ordered that the right to appeal a remand order persists even if a party participates in post-remand trial proceedings and emphasized that the order of remand possesses an independent existence and an independent right of appeal.
Brief Facts:
The judgment discusses an appeal against an order of remand. The appeal in the case stemmed from an order passed by the trial court on 08.05.2023, linked to a judgment and decree from 31.03.2022. The trial court had disposed of the suit based on a preliminary point, but this decision was reversed on appeal, resulting in a remand to the trial court.
The Civil Procedure Code, 1908 (Hereinafter referred to as “The Code”) permits appeals against remand orders and Section 105(2) of the code prevents appellants from raising objections in a later appeal from the final decree that could have been raised in an appeal from the remand order.
However, the Code lacks a provision explicitly nullifying the right to appeal against a remand order if the preliminary issue leading to the remand has been resolved before the appeal against the remand order is filed or heard.
Contentions of the Parties:
The respondents argued against hearing the present appeal, claiming that the trial court had already issued an order and that the appellant should file an appeal against this subsequent order, making the current appeal unnecessary.
The appellants argued that an appeal against a remand order, per Order XLIII, Rule 1(u) of The Code, should not become redundant due to a subsequent trial court order.
The core legal question was whether the issuance of a final order following a remand would preclude the initiation or consideration of an appeal against the remand order.
Observations of the Court:
The Court noted that the reversal of the order of remand under Order XLI, Rule 23, had a clear and significant effect: anything undertaken in accordance with that order automatically lost its validity, and the trial court was divested of its jurisdiction to issue any subsequent orders in the case. Consequently, the respondent's argument suggesting that the final order issued by the trial court, stemming from the remand ordered by the first appellate court, could somehow endure even after the remand order was reversed, presented a glaring logical inconsistency, rendering the argument untenable.
The final order stemming from a remand is subservient to the remand order. While the appellate court holds the authority to modify the remand order during its review, it can also impact the final order accordingly. Parties maintain two distinct rights: appealing the remand order and contesting trial proceedings based on it. These rights are not mutually exclusive but rather complementary, allowing parties to exercise them in both the appeal against the remand order and subsequent trial stages.
If the remand order is later overturned on appeal, subsequent trial court orders based on it lose validity. Proceedings following a remand are subject to reversal if the remand order is appealed and reversed. The final order, a result of remand-directed proceedings, is subordinated and nullified when the remand order is appealed and set aside. Hence, the trial court's post-remand order cannot stand if the remand order is appealed and reversed.
The Decision of the Court:
The court firmly concluded that implying limitations on the statutory right of appeal, unless explicitly stated, was an inappropriate course of action. The imposition of such limitations could have significantly prejudiced a party's ability to challenge the correctness of the remand order in the future. Essentially, the court grappled with the core issue of whether an appeal against a remand order retained its validity even if the underlying issue prompting the remand had been resolved before the appeal hearing. In resolute terms, the court upheld the right to appeal the remand order, provided that no prior appeal had been filed against it.
Case Title: Yasmeen Zia vs Haneefa Khursheed and Ors.
Coram: Hon’ble Justice Dr. Yogendra Kumar Srivastava
Case No.: First Appeal from Order No. - 1285 of 2023
Advocate for the Appellant: Devansh Misra and Sudheer Rana
Advocate for the Respondents: Pankaj Agarwal
Read Judgment @LatestLaws.com
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