Source: Allahabad High Court

Why in News?

The bench of Justice Dr. Yogendra Kumar Srivastava observed that subsequent order on order for remand does not take away the right to appeal against it.

• The Allahabad High Court gave this observation in the matter of Smt. Yasmeen Zia v. Smt. Haneefa Khursheed And 2 Others.

What is the Background of Smt. Yasmeen Zia v. Smt. Haneefa Khursheed And 2 Others Case?

• The maintainability of an appeal made against an order of remand preferred before the HC was in question.
• The remand order in this case was given in such a way that after that remand order, a subsequent order was also passed, and that subsequent order became appealable taking away the right to appeal against the prior order.
• The appellant contended that they still have the right to appeal under Order XLIII, Rule 1(u) of the Code of Civil Procedure, 1908 (CPC) against the remand order.

What were the Court’s Observations?

• The while allowing the right to appeal of the appellants stated that:
  • 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 non-­filing 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

What is a Remand Case Under CPC?

• Introduction:
  • A "remand case" is a situation where a higher court sends a case back to a lower court for further proceedings or reconsideration.
  • This can happen for various reasons, including errors in the lower court's judgment, the need for additional evidence or clarification, or a review of legal issues.
  • The court gives directions of remanding under Order XLI Rule 23 and 23A.
• Procedure of Remanding a Case:
  • A party in a civil case may file an appeal to a higher court (appellate court) if they are dissatisfied with the decision made by the lower court (trial court).
  • The appellate court reviews the lower court's decision and can either uphold, reverse, or modify the judgment.
  • If the appellate court determines that the lower court made errors in its proceedings, or if there are issues that need further consideration or clarification, it may remand the case.
    • The appellate court gives the directions to re-admit the suit under its original number in the register of civil suits.
  • This means sending it back to the lower court for specific actions, such as a new trial, reevaluation of evidence, or reconsideration of legal arguments.
  • Upon receiving the remanded case, the lower court carries out the instructions given by the appellate court.
  • Once the lower court has completed the necessary actions in accordance with the instructions from the higher court, it issues a new judgment or decision in the case.
  • This new judgment is based on the guidance provided by the appellate court.
• Appeal Against Remand Order:
  • Order XLIII of CPC governs appeals from orders.
  • Rule 1(u) of Order XLIII states that the appeal lies from an order under Rule 23 or Rule 23A of Order XLI where the court gives an order to remand a case.