WPMS/1763/2025
2025 Latest Caselaw 1000 UK

Uttarakhand High Court

WPMS/1763/2025 on 18 July, 2025

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

                                                                 2025:UHC:6290
              Office Notes,
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      Date    or directions              COURT'S OR JUDGE'S ORDERS
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                               WPMS/1763/2025
                               Hon'ble Manoj Kumar Tiwari, J
                               1.

Mr. V.K. Pandey, learned counsel for the petitioners.

2. Mr. K.N. Joshji, learned Deputy Advocate General for the State of Uttarakhand.

3. Mr. Rajat Mittal, learned counsel for the caveator.

4. Petitioners have challenged the order dated 21.04.2025 passed by Board of Revenue Uttarakhand in Second Appeal No. 89 of 2024-25. By the said order, appeal filed by petitioners under Section 331(4) of UPZA&LR Act was dismissed, as not maintainable, as it was not against a final decree but against a remand order.

5. Mr. Rajat Mittal, learned counsel for the caveator supported the judgment rendered by Board of Revenue and submitted that petitioners had challenged the order of remand passed by First Appellate i.e. Additional Commissioner.

6. Law is well settled that against a remand order, the remedy is under Order 43 Rule 1(u) CPC; against the judgment rendered by Additional Commissioner, such appeal would lie before the Board of Revenue, therefore, the appeal filed by petitioners under the wrong provision could have been treated as an appeal under Order 43 Rule 1(u) CPC.

2025:UHC:6290

7. Hon'ble Supreme Court in the case of Pruthvirajsinh Nodhubha Jadeja (D) By Lrs. Vs Jayeshkumar Chhakaddas Shah & others rendered in Civil Appeal No. 10521 of 2013 has held as under:-

"8. It is well settled law that mere non- mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court."

8. In such view of the matter, the writ petition is allowed. The order impugned dated 21.04.2025 is set aside and learned Board of Revenue is directed to treat the appeal as appeal filed by Appellants under Order 43 Rule 1(u) CPC.

(Manoj Kumar Tiwari, J) 18.07.2025 Aswal NITI RAJ SINGH Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND,

ASWAL serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1FE58A58531726FB B0, cn=NITI RAJ SINGH ASWAL Date: 2025.07.18 04:38:03 -07'00'