# Mohd. Jahid v. Dy. Director of Consolidation, Sitapur & Anr

- **Citation:** (2025) 9 ILRA 1049
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-26
- **Case number:** Writ- B No. 840 of 2025
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-jahid-v-dy-director-of-consolidation-sitapur-anr-54757
- **Pages:** 11

## Headnote

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Ashish Chaturvedi, Dilip Kumar
Pandey

Issue for consideration
 Whether the Deputy Director of Consolidation
has rightly and in accordance with law set-aside
the judgment and order of the Trial Court and
remanded the matter for decision afresh in
accordance with the directions and observations
or the revisional Court could have framed the
issues and referred the matter to the Trial Court
for taking evidence on them and after trying
recorded it's findings and decided the appeal?

Headnotes
A.
Property
Law
-
Uttar
Pradesh
Consolidation of Holdings Act, 1953:
Section 48(1); of U.P. Z.A. & L.R. Act:
Section 171; Code of Civil Procedure,
1908: Order XLI Rule-23, 23-A, 25 -
Where the Trial Court has disposed of the
Suit on merits and the decree is reversed
in
appeal
and
the
Appellate
Court
considered that retrial is necessary, the
Appellate Court may remand the suit to
the Trial Court. (Para 24)

The power of the Appellate Court to
remand the case to a subordinate court is
contained in order XLI Rule 23, 23-A and
25 of C.P.C. It is, therefore, obligatory upon
the appellant to bring the case under any of
these provisions before claiming a remand and
the Appellate Court is required to record reasons
as to why it has taken recourse to any one out
of three Rules of Order XLI of C.P.C. for
remanding the case to the Trial Court. (Para 22)

B. Whether or not the Appellate Court
should remit the matter is discretionary
with the Appellate Court and would largely
depend upon the nature of the dispute, the
nature and the extent of evidence that may
have to be appreciated, the complexity of
the issues that arise for determination and
whether remand is going to result in
avoidable prolongation of the litigation
between the parties. (Para 26)

It is quite safe to adopt that appeal
u/order 43 Rule (1) clause (u) should be
heard only on the ground enumerated in
Section 100. (Para 27)

It would be the duty of the Deputy
Director to scrutinise the whole case so as
to determine the correctness, legality or
propriety of the orders passed by the
authorities subordinate to him. (Para 29)

Accordingly, in the light of the contradictory
facts which have emerged going to the root of
the matter, a proper adjudication was not
possible and it is only after verifying the correct
facts and recording further evidence the matter
could have been adjudicated and for the said
reason he has remanded the matter back to the
Consolidation Officer for decision afresh. (Para
30)

Undoubtedly
the
Deputy
Director
of
Consolidation is clothed with sufficient power
to decide the matter himself but such an
exercise of power would be valid when the
entire evidence is available on record and
merely after oral hearing of the parties, the
matter could be adjudicated and decided
finally but when the Deputy Director of
Consolidation is of the view that further
evidence is required to be adduced which
may require examination of the witnesses
and also the cross examination by the other
parties there in such a situation he may
exercise such a discretion either to proceed
with the matter himself or to remand the
matter to the trial court. (Para 31)

Accordingly, in the present case, the Deputy
Director of Consolidation has duly considered
the entire facts and also clearly recorded the
inadequacies and inaccuracies in the essential
facts which are available on record which
necessitate further re-inquiry and evidence, for
which purpose the matter has been remitted to
the trial court and such exercise of discretion
cannot be faulted. (Para 32)

Writ petition dismissed. (E-4)

Case Law Cited

## Text

9 All. Mohd. Jahid Vs. Dy. Director of Consolidation, Sitapur & Anr.
1049
jurisdiction to protect such a
tainted appointment. The action of the
authorities in cancelling the appointment of
the petitioner, being in conformity with the
settled principles of law, calls for no
interference.

39. This Court is of the considered
view that where a candidate has passed the
High School Examination twice, the
certificate which is to be taken into
consideration shall ordinarily be the first
validly obtained certificate, as the same
constitutes the original and authentic record
of educational qualification as well as the
date of birth.

40.The
subsequent
certificate,
obtained
upon
re-appearing
in
the
examination, may at best be treated as an
improvement
certificate
for
academic
purposes, provided the concerned Board of
Examination has duly recognized and
endorsed it. However, for the purposes of
public employment, service matters, or
determination of age, the authorities are not
bound to act upon the later certificate,
especially if the same has been procured to
alter the marks or manipulate the date of
birth.

41.It is thus held that in absence of a
specific statutory provision to the contrary,
the first certificate shall prevail for all legal,
service and official purposes, and the second
attempt may only supplement but cannot
supplant the original.

42.The judgment as cited by
learned counsel for the petitioner is not
applicable in the present facts of the case as
it speaks about no bar in obtaining two
parallel certificates of high school and
intermediate whereas in the present case,
the petitioner has passed high school and
intermediate twice and has taken benefit of
date of birth and enhanced marks placing
the second mark-sheet of the high school
and intermediate.

43.Even otherwise, this Court finds
that the appointment letter itself contains a
categorical stipulation that in the event,
during
scrutiny
of
the
educational
certificates, any fraud is detected or any
concealment is established on the part of
the petitioner, his appointment shall stand
automatically cancelled without requiring
any further act on the part of the
authorities. Thus, the very foundation of
the
petitioner?s
appointment
was
conditional and subject to verification, and
once
the
concealment
and
misrepresentation
came
to
light,
the
cancellation of his appointment was the
inevitable consequence flowing from the
terms of his engagement.

44.In view of the above, the
present
petition
lacks
merit
and
is
dismissed, accordingly.
----------
(2025) 9 ILRA 1049
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ- B No. 840 of 2025

Mohd. Jahid ...Petitioner
Versus
Dy. Director of Consolidation, Sitapur &
Anr. ...Respondents

Counsel for the Petitioner:
Ankit Pande, Virendra Bhatt

Counsel for the Respondents:
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Ashish Chaturvedi, Dilip Kumar
Pandey

Issue for consideration
 Whether the Deputy Director of Consolidation
has rightly and in accordance with law set-aside
the judgment and order of the Trial Court and
remanded the matter for decision afresh in
accordance with the directions and observations
or the revisional Court could have framed the
issues and referred the matter to the Trial Court
for taking evidence on them and after trying
recorded it's findings and decided the appeal?

Headnotes
A.
Property
Law
-
Uttar
Pradesh
Consolidation of Holdings Act, 1953:
Section 48(1); of U.P. Z.A. & L.R. Act:
Section 171; Code of Civil Procedure,
1908: Order XLI Rule-23, 23-A, 25 -
Where the Trial Court has disposed of the
Suit on merits and the decree is reversed
in
appeal
and
the
Appellate
Court
considered that retrial is necessary, the
Appellate Court may remand the suit to
the Trial Court. (Para 24)

The power of the Appellate Court to
remand the case to a subordinate court is
contained in order XLI Rule 23, 23-A and
25 of C.P.C. It is, therefore, obligatory upon
the appellant to bring the case under any of
these provisions before claiming a remand and
the Appellate Court is required to record reasons
as to why it has taken recourse to any one out
of three Rules of Order XLI of C.P.C. for
remanding the case to the Trial Court. (Para 22)

B. Whether or not the Appellate Court
should remit the matter is discretionary
with the Appellate Court and would largely
depend upon the nature of the dispute, the
nature and the extent of evidence that may
have to be appreciated, the complexity of
the issues that arise for determination and
whether remand is going to result in
avoidable prolongation of the litigation
between the parties. (Para 26)

It is quite safe to adopt that appeal
u/order 43 Rule (1) clause (u) should be
heard only on the ground enumerated in
Section 100. (Para 27)

It would be the duty of the Deputy
Director to scrutinise the whole case so as
to determine the correctness, legality or
propriety of the orders passed by the
authorities subordinate to him. (Para 29)

Accordingly, in the light of the contradictory
facts which have emerged going to the root of
the matter, a proper adjudication was not
possible and it is only after verifying the correct
facts and recording further evidence the matter
could have been adjudicated and for the said
reason he has remanded the matter back to the
Consolidation Officer for decision afresh. (Para
30)

Undoubtedly
the
Deputy
Director
of
Consolidation is clothed with sufficient power
to decide the matter himself but such an
exercise of power would be valid when the
entire evidence is available on record and
merely after oral hearing of the parties, the
matter could be adjudicated and decided
finally but when the Deputy Director of
Consolidation is of the view that further
evidence is required to be adduced which
may require examination of the witnesses
and also the cross examination by the other
parties there in such a situation he may
exercise such a discretion either to proceed
with the matter himself or to remand the
matter to the trial court. (Para 31)

Accordingly, in the present case, the Deputy
Director of Consolidation has duly considered
the entire facts and also clearly recorded the
inadequacies and inaccuracies in the essential
facts which are available on record which
necessitate further re-inquiry and evidence, for
which purpose the matter has been remitted to
the trial court and such exercise of discretion
cannot be faulted. (Para 32)

Writ petition dismissed. (E-4)

Case Law Cited
1. Afsar Ali Khan and others Vs. Liyakat Khan
and others, 2025 (166) RD 233 (Para 12)
9 All. Mohd. Jahid Vs. Dy. Director of Consolidation, Sitapur & Anr.
1051
2. Angad Pratap Singh and others Vs. Deputy
Director Consolidation and others, 2023(41) LCD
604 (Para 12)

3. Syeda Rahimunnisa Vs. Malan Bi (dead) by
L.R.s and Another, (2016) 10 SCC 315 (Para 22)

4. Sree Panimoola Devi Temple and others Vs.
Bhuvanchandran Pillai and others, (2015) 12
SCC 698 (Para 23)

5. Jagannathan Vs. Raju Sigamani and Another,
(2012) 5 SCC 540 (Para 24)

6. P. Purushottam Reddy and Another Vs. Pratap
Steels Ltd., (2002) 2 SCC 686 (Para 25)

7. Maya Devi (Dead) through LRs Vs. Raj Kumari
Batra (Dead), (2010) 9 SCC 486 (Para 26)

8. Narayanan Vs. Kumaran and others, (2004) 4
SCC 26 (Para 27)

9. Gulab Chand Vs. D.D.C., 2019 SCC OnLine All
4756 (Para 28)

10. Sheo Nand Vs. D.D.C., Allahabad, (2000) 3
SCC 103 (Para 29)

List of Acts
Uttar Pradesh Consolidation of Holdings Act,
1953; U.P. Z.A. & L.R. Act; Code of Civil
Procedure, 1908.

List of Keywords
consolidation, appeal, discretionary, remand.

Appearances for Parties
For Petitioner: Ankit Pande, Virendra Bhatt
For Respondent: C.S.C., Ashish Chaturvedi,
Dilip Kumar Pandey

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri R.S. Pandey, learned
Senior Advocate assisted by Shri Ankit
Pandey for the petitioner, learned Standing
Counsel for respondent no.1, Shri Dileep
Kumar
Pandey,
learned
counsel
for
respondent no.2 and Shri Desh Deepak
Singh and Ms. Aniveksha Shukla holding
brief of Shri Ashish Chaturvedi for the
private respondents.

2. By means of present writ
petition, the petitioner has assailed the
validity of the order dated 27.6.2025 passed
by the Deputy Director of Consolidation,
District Raebareli in exercise of power
under Section 48 (1) of Uttar Pradesh
Consolidation of Holdings Act, 1953
remanding the matter back to the trial court
for decision afresh.

3. It has been submitted by learned
counsel for the petitioner that controversy
in the present case pertains to land situated
at Khata No. 282 comprising plot no.
511/1.264 hectare, 2740/0.440 hectare and
298/0.277 hectare, situated at village
Ataganj, Usari, Pargana and Tehsil Salon,
District Raebareli.

4. It has been submitted by learned
counsel for the petitioner that the aforesaid
land was recorded in the name of Sadique
son of Mohd. Khalique and Shakeel son of
Nasir. He has submitted that in the basic
year Khatauni the disputed land was
initially recorded in the name of Khalique
who was survived two sons, namely,
Sadique and Nasir. Nasir died in 1979 and
was survived of his wife Zohra Bibi and his
son Shakeel.

5. According to the petitioner,
Zohra Bibi after the death of her husband
Mohd. Nasir, remarried with one Aziz
Ahmad son of Wajid Ali and after taking
divorce remarried on 21.10.1994 with
Mobin Ahmad son of Munir Ahmad. It has
further been submitted that Shakeel son of
Nasir died on 10.11.1991.

6.
It
is
in
the
aforesaid
circumstances, it has been submitted that
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Sadique son of Mohd. Khalique moved an
application for mutation of his name in the
revenue record on 11.12.1991 and in the
meanwhile Smt. Zohra Bibi got her name
mutated through P.A. 11 in the revenue
record in place of Shakeel Ahmad who has
died as a minor. Siddique who is the father
of the petitioner had also moved an
application on 11.12.1991 for setting aside
the order passed in P.A. 11. The Tehsildar
by means of order dated 27.11.1992, set
aside the order passed by the Supervisor
Kanungo in favour of Smt. Zohra Bibi and
allowed the application of Saddique as
being the heir and successor of Shakeel
Ahmad son of Nasir.

7. It has further been submitted that
though the order dated 27.11.1992 was
challenged by Smt. Zohra Bibi but her
name has been recorded for second time
through P.A. 11 being the widow of Nasir
in place of Shakeel on 3.12.1992 and on the
basis of the said entry executed a sale deed
in favour of opposite parties no. 3 to 6 on
29.1.1999.

8. It has further been stated that the
said village came under consolidation
operations by issuance of Notification
under Section 4-A of Consolidation of
Holdings Act, 1953 in the year 2008 and
application was made by opposite parties
no. 3 to 6 under Section 9 of the Act, 1953
for recording the name on the basis of sale
deed executed by Smt. Zohra Bibi in their
favour on 29.1.1999. The Consolidation
Officer allowed the objections on 8.6.2012
and passed the orders for recording the
name of opposite parties no. 3 to 6 in the
revenue record in place of Shakeel Ahmad.
When Saddique the father of the petitioner
came to know about the order dated
8.6.2012, he had moved an application for
recall and the ex-parte order was recalled.
9. The Consolidation Officer by
means of order dated 22.6.2023 allowed the
objections filed by Sadique and directed
that his name be recorded in place of
Shakeel Ahmad son of Mohd. Nasir as
being successor.

10. The opposite parties no. 3 to 6
filed an appeal on 23.7.2023 under Section
11 Act of 1953 before the Settlement
Officer, Consolidation challenging the
order dated 22.6.2023 which appeal was
dismissed by means of order dated
9.5.2025 and the order of Consolidation
Officer dated 22.6.2023 was affirmed.

11. Aggrieved by the order dated
9.5.2025, the opposite parties no. 3 to 6
filed a revision before the Deputy Director
of Consolidation which has been allowed
by means of the impugned order dated
27.6.2025 and the matter has been
remanded to the Consolidation Officer and
the order of the Appellate Authority dated
9.5.2025 has been set aside.

12. Counsel for the petitioner while
assailing the impugned order has submitted
that the Deputy Director of Consolidation
has illegally and arbitrarily remanded the
matter back to the Consolidation Officer
despite there being sufficient material
available on record for deciding the matter
himself rather than remanding the matter,
afresh before the Consolidation Officer. He
submits that the law in this regard has been
reiterated by this Court in several cases.
The Deputy Director of Consolidation in
exercise of power under Section 48 of the
Act 1953 has sufficient power to take
evidence
and
also
re-appreciate
the
evidence and decide the entire controversy
himself rather thatn remanding the case
back to the trial court. He has relied upon
the judgment in the case of Afsar Ali
9 All. Mohd. Jahid Vs. Dy. Director of Consolidation, Sitapur & Anr.
1053
Khan and others Vs. Liyakat Khan and
others [2025 (166) RD 233] and Angad
Pratap Singh and others Vs. Deputy
Director
Consolidation
and
others
[2023(41) LCD 604].

13. Counsel for the respondents, on
the other hand, opposed the writ petition.
They have submitted that a perusal of the
order of the Consolidation Officer itself
would indicate that the stand of the
petitioner before all the Authorities has
been wavering and even different dates of
death of Shakeel i.e. 2006, 1991, 1989 and
18.8.2021 has been mentioned by him in
the proceedings which is relevant for
deciding the present controversy.

14. It has been submitted that after
the death of Nasir the property devolved
upon Sahkeel being the legal heir and son
of Nasir. It has been further stated that Smt.
Zohra Bibi has re-married after the death of
Nasir and as per the provision of Section
171 of U.P. Z.A. & L.R. Act the property
would revert to Sadique son of Mohd.
Khalique is the male lenient descendant
and the elder brother of Nasir.

15. Apart from the above, with
regard to the aspect of remarriage of Smt.
Zohra Bibi, I find that only an oral
assertion
was
made
before
the
Consolidation Officer and there was no
material document or evidence placed to
indicate the same. Even with regard to the
death of Mohd. Nasir only a photo copy
was produced and according to the
Settlement Officer, Consolidation the same
was not be proved.

16. It is in the aforesaid facts that
this Court is called upon to examine the
legality and validity of the order passed by
the Deputy Director of Consolidation and
also as to whether in the peculiar
circumstances of the case whether he could
have decided the controversy himself or
has committed any error in remanding the
matter back to the Consolidation Officer.
The Deputy Director of Consolidation has
firstly considered the fact undoubtedly
against the order of mutation dated
27.11.1992 where the name of Smt. Zohra
Bibi was deleted and the name of Sadique
was mutated and no appeal was filed by her
but in 1997 she got her name recorded in
the revenue record through P.A. 11.
Secondly the date of death of Shakeel
Ahmad is also not clear from the record as
4 different dates have been mentioned with
regard to the death of Shakeel Ahmad i.e.
2006, 1991, 1989 and 18.8.2021.

17. Now, the question arises as to
whether
the
Deputy
Director
of
Consolidation has rightly and in accordance
with law has set-aside the judgment and
order of the Trial Court and remanded the
matter for decision afresh in accordance
with the directions and observations or the
revisional Court could have framed the
issues and referred the matter to the Trial
Court for taking evidence on them and after
trying recorded it's findings and decided the
appeal.

18. The provision of remand made
in Rule-23, 23-A and 25 of Order XLI of
CPC are relevant for considering the above
issue, which are extracted here-in-below:-

 "23. Remand of case by Appellate
Court.- Where the court from whose decree
an appeal is preferred has disposed of the
suit upon a preliminary point and the
decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand
the case, and may further direct what issue
or issues shall be tried in the case so
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
remanded, and shall send a copy of its
judgment and order to the court from
whose decree the appeal is preferred, with
directions to re-admit the suit under its
original number in the register of civil
suits, and proceed to determine the suit;
and the evidence (if any) recorded during
the original trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

 The Following Allahabad High
Court Amendment has been made in
aforesaid Rule 23:

 a. (i) Insert he following after the
words 'and the decree is reversed in
appeal", namely: "or where the Appellate
Court while reversing or setting aside the
decree under appeal considers it necessary
in the interest of justice to remand the case,
it"; and

 (ii)
delete
the
words
"the
Appellate Court" occurring thereafter and
delete also the words "if it thinks fit",
occurring after the words "may".

 23.(A)- Remand in other cases-
Where the Court from whose decree an
appeal is preferred has disposed of the case
otherwise than on a preliminary point, and
the decree is reversed in appeal and a retrial is considered necessary, the Appellate
Court shall have the same powers as it has
under rule 24..

 25. Where Appellate Court may
frame issues and refer them for trial to
Court whose decree appealed from. -
Where the Court from whose decree the
appeal is preferred has omitted to frame or
try any issue, or to determine any question
of fact, which appears to the Appellate
Court essential to the right decision of the
suit upon the merits the Appellate Court
may, if necessary, frame issues, and refer
the same for trial to the Court from whose
decree the appeal is preferred, and in such
case shall direct such Court to take the
additional evidence required; and such
Court shall proceed to try such issues, and
shall return the evidence to the Appellate
Court together with its findings thereon
and the reasons therefor within such time
as may be fixed by the Appellate Court or
extended by it from time to time.

19. In view of above, Rule 23 as
amended by the Allahabad High Court is
'where the court from whose decree an
appeal is preferred has disposed of the suit
upon a preliminary point and the decree is
reversed in appeal or where the Appellate
Court while reversing or setting aside the
decree under appeal considers it necessary
in the interest of justice to remand the case,
it may by order remand the case, and may
further direct what issue or issues shall be
tried in the case so remanded, and shall
send a copy of its judgment and order to
the court from whose decree the appeal is
preferred, with directions to re-admit the
suit under its original number in the
register of civil suits, and proceed to
determine the suit; and the evidence (if
any) recorded during the original trial
shall, subject to all just exceptions, be
evidence during the trial after remand.'

20. The aforesaid Rule 23(A)
provides in regard to the appeal, which has
been preferred against the decree which has
been made otherwise than on a preliminary
point, and the decree is reversed in appeal
and a re-trial is considered necessary, the
Appellate Court shall have the same
powers as it has under rule 23. In both the
aforesaid
rules,
the
power
of
First
Appellate Court is one and the same as
9 All. Mohd. Jahid Vs. Dy. Director of Consolidation, Sitapur & Anr.
1055
given in Rule 23 according to which, in
case of reversal of a decree in appeal the
Appellate Court may remand the case for
re-trial. Rule 25 provides the contingencies
in which the Appellate Court can frame the
issues and refer the matter to the Trial
Court for taking evidence on them and
trying the said issues, who shall send then
to the same with it's findings thereon to the
Appellate Court and the Appellate Court
can decide the appeal accordingly.

21. Rule 25 of Order XLI C.P.C.
provides that where the court from whose
decree the appeal is preferred has omitted
to frame or try any issue or to determine
any question of fact, which is essential to
the right decision of the suit upon merits,
the Appellate Court may frame the said
issues and refer to the concerned court for
trial of same after taking evidence and
referring to the Appellate Court with it's
findings and reasons thereon and then the
Appellate Court may decide the appeal.
Thus this procedure can be followed only if
the Trial Court has omitted to frame or try
any issue or determine any question of fact
whereas in the present case the Trial Court
has failed to follow the due procedure of
law in deciding the suit as indicated above,
therefore, this Court is of the view that this
procedure could not have been followed by
the Trial Court and it has rightly an in
accordance with law has set-aside the
judgment and order passed by the Trial
Court and remanded the matter for a fresh
decision.

22. The Hon'ble Supreme Court, in
the case of Syeda Rahimunnisa Vs. Malan
Bi (dead) by L.R.s and Another, (2016) 10
SCC 315, has held that the power of the
Appellate Court to remand the case to a
subordinate court is contained in order XLI
Rule 23, 23-A and 25 of C.P.C. It is,
therefore, obligatory upon the appellant to
bring the case under any of these provisions
before claiming a remand and the Appellate
Court is required to record reasons as to
why it has taken recourse to any one out of
three Rules of Order XLI of C.P.C. for
remanding the case to the Trial Court.
Relevant paragraph 35 is extracted here-inbelow:-

 "35. It is a settled principle of law
that in order to claim remand of the case to
the Trial Court, it is necessary for the
appellant to first raise such plea and then
make out a case of remand on facts. The
power of the Appellate Court to remand the
case to subordinate court is contained in
order XLI Rule 23, 23-A and 25 of C.P.C. It
is, therefore, obligatory upon the appellant
to bring the case under any of these
provisions before claiming a remand. The
Appellate Court is required to record
reasons as to why it has taken recourse to
any one out of the three Rules of Order XLI
of C.P.C. for remanding the case to the
Trial Court. In the absence of any ground
taken by the respondents (appellants before
the First Appellate Court and High Court)
before the First Appellate Court and the
High Court as to why the remand order in
these cases is called for and if so under
which Rule of Order XLI of CPC further in
the absence of any finding, there was no
justification on the part of the High Court
to remand the case to the Trial Court. The
High Court instead should have decided
the appeals on merits. We, however, do not
consider proper to remand the case to High
Court for deciding the appeals on merits
and instead examine the merits of the case
in these appeals."

23. The Hon'ble Supreme Court, in
the case of Sree Panimoola Devi Temple
and others Vs. Bhuvanchandran Pillai
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
and others, (2015) 12 SCC 698, has held
that if the plaintiffs had not led sufficient
evidence to establish their case, as held by
the High Court, ordinarily, that should have
been the end of the matter and in such
circumstances, remand of the suit for denovo consideration virtually gives to the
plaintiffs a second opportunity to establish
their case. This Court is of the view that
this judgment relied by the learned counsel
for the appellant is not applicable on the
facts and circumstances of the present case
because in the present case the learned
Trial Court has failed to follow the due
procedure of law and afford opportunity in
accordance with law.

24. The Hon'ble Supreme Court, in
the case of Jagannathan Vs. Raju Sigamani
and Another, (2012) 5 SCC 540, has held
that where the Trial Court has disposed of
the Suit on merits and the decree is
reversed in appeal and the Appellate Court
considered that retrial is necessary, the
Appellate Court may remand the suit to the
Trial Court. The relevant paragraph-7 is
extracted here-in-below:-

 "(7) Order 41 Rule 23A has been
inserted in the Code by Act No. 104 of 1976
w.e.f. February 1, 1977. According to
Order 41 Rule 23A of the Code, the
Appellate Court may remand the suit to the
Trial Court even though such suit has been
disposed of on merits. It provides that
where the Trial Court has disposed of the
Suit on merits and the decree is reversed in
appeal and the Appellate Court considers
that retrial is necessary, the Appellate
Court may remand the suit to the Trial
Court."

25. The Hon'ble Supreme Court in
the case of P. Purushottam Reddy and
Another Vs. Pratap Steels Ltd., (2002) 2
SCC 686 has held that the Appellate Court
should be circumspect in ordering a remand
when the case is not covered either by Rule
23 or Rule 23-A or Rule 25 C.P.C. and an
unwarranted order of remand gives the
litigation an undeserved lease of life and,
therefore must be avoided. This case is not
applicable in the facts and circumstances of
the present case because in the present case
as discussed above and also as per the
findings recorded by the First Appellate
Court, the First Appellate Court has rightly
and in accordance with law has remanded
the case.

26. The Hon'ble Supreme Court, in
the case of Maya Devi (Dead) through
LRs Vs. Raj Kumari Batra (Dead),
(2010) 9 SCC 486, has held that whether or
not the Appellate Court should remit the
matter is discretionary with the Appellate
Court and would largely depend upon the
nature of the dispute, the nature and the
extent of evidence that may have to be
appreciated, the complexity of the issues
that arise for determination and whether
remand is going to result in avoidable
prolongation of the litigation between the
parties. The relevant paragraph- 17 is
extracted here-in-below:-

 "(17). Recording of reasons in
cases where the order is subject to further
appeal is very important from yet another
angle. An Appellate Court or the authority
ought to have the advantage of examining
the reasons that prevailed with the Court or
the authority making the order. Conversely,
absence of reasons in an appealable order
deprives the Appellate Court or the
authority of that advantage and casts an
onerous responsibility upon it to examine
and determine the question on its own. An
Appellate Court or authority may in a given
case decline to undertake any such exercise
9 All. Mohd. Jahid Vs. Dy. Director of Consolidation, Sitapur & Anr.
1057
and remit the matter back to the lower
Court or authority for a fresh and reasoned
order. That, however, is not an inflexible
rule,
for
an
Appellate
Court
may
notwithstanding the absence of reasons in
support of the order under appeal before it
examine the matter on merits and finally
decide the same at the appellate stage.
Whether or not the Appellate Court should
remit the matter is discretionary with the
Appellate Court and would largely depend
upon the nature of the dispute, the nature
and the extent of evidence that may have to
be appreciated, the complexity of the issues
that arise for determination and whether
remand is going to result in avoidable
prolongation of the litigation between the
parties. Remands are usually avoided if the
Appellate Court is of the view that it will
prolong the litigation."

27. The Hon'ble Supreme Court, in
the case of Narayanan Vs. Kumaran and
others, (2004) 4 SCC 26 has held that it is
quite safe to adopt that appeal under order
43 Rule (1) clause (u) should be heard only
on the ground enumerated in Section 100.
The relevant paragraph-17 of the judgment
is extracted here-in-below:-

 "17. It is obvious from the above
rule that an appeal will lie from an order of
remand only in those cases in which an
appeal would lie against the decree if the
Appellate Court, instead of making an
order of remand, had passed a decree on
the strength of the adjudication on which
the order of remand was passed. The test is
whether in the circumstances an appeal
would lie if the order of remand where it is
to be treated as a decree and not a mere
order. In these circumstances, it is quite
safe to adopt that appeal under order 43
Rule (1) clause (u) should be heard only on
the ground enumerated inSection 100.
We, therefore, accept the contention of Mr.
T.L.V.Iyer and hold that the appellant
under an appeal under order 43 Rule (1)
clause (u) is not entitled to agitate
questions of facts. We, therefore, hold that
in an appeal against an order of remand
under this clause, the High Court can and
should
confine
itself
to
such
facts,
conclusions and decisions which have a
bearing on the order of remand and cannot
canvass all the findings of facts arrived at
by the Lower Appellate Court."

28. This Court in the judgment
dated 30.04.2019 passed in the case of
Gulab Chand v. D.D.C. reported in 2019
SCC OnLine All 4756 has observed as
under:-

 "14. This Court has given a
thoughtful
consideration
to
rival
submissions advanced on both sides. It is
true, no doubt, that powers of the Deputy
Director of Consolidation under Section 48
of the Act have always been regarded as
wide, though inhibited in some regard,
being a Court of Revision. The import of
the powers of the Deputy Director of
Consolidation under Section 48 of the Act
as they have been always understood has
been succinctly laid down by the Supreme
Court in Sheo Nand v. Deputy Director of
Consolidation, Allahabad, (2000) 3 SCC
103, where in para graphs 20 & 21 of the
report, it has been held:

 20. The section gives very wide
powers to the Deputy Director. It enables
him either suo motu on his own motion or
on the application of any person to
consider the propriety, legality, regularity,
and correctness of all the proceedings held
under the Act and to pass appropriate
orders. These powers have been conferred
on the Deputy Director in the widest terms
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
so that the claims of the parties under the
Act may be effectively adjudicated upon
and determined to confer finality to the
rights of the parties, and the revenue
records may be prepared accordingly.

 21.
Normally,
the
Deputy
Director, in exercise of his powers, is not
expected to disturb the findings of fact
recorded concurrently by the Consolidation
Officer
and
the
Settlement
Officer
(Consolidation), but where the findings are
perverse, in the sense that they are not
supported by the evidence brought on
record by the parties or that they are
against the weight of evidence, it would be
the duty of the Deputy Director to
scrutinise the whole case again so as to
determine the correctness, legality or
propriety of the orders passed by the
authorities subordinate to him. In a case,
like the present, where the entries in the
revenue records are fictitious or forged or
they were recorded in contravention of the
statutory provisions contained in the U.P.
Land Records Manual or other allied
statutory provisions, the Deputy Director
would have full power under Section 48 to
reappraise or re-evaluate the 18 evidenceon-record so as to finally determine the
rights of the parties by excluding forged
and fictitious revenue entries or entries not
made in accordance with law.

29. The Supreme Court in the case
of Sheo Nand vs. D.D.C., Allahabad,
(2000) 3 SCC 103 also said that, it would
be the duty of the Deputy Director to
scrutinise the whole case so as to determine
the correctness, legality or propriety of the
orders
passed
by
the
authorities
subordinate to him.

30. Accordingly, in the light of the
contradictory facts which have emerged
going to the root of the matter, a proper
adjudication was not possible and it is only
after verifying the correct facts and
recording further evidence the matter could
have been adjudicated and for the said
reason he has remanded the matter back to
the Consolidation Officer for decision
afresh.

31. Considering the aforesaid facts,
this Court is of the considered view that
undoubtedly
the
Deputy
Director
of
Consolidation is clothed with sufficient
power to decide the matter himself but such
an exercise of power would be valid when
the entire evidence is available on record
and merely after oral hearing of the parties,
the matter could be adjudicated and
decided finally but when the Deputy
Director of Consolidation is of the view
that further evidence is required to be
adduced which may require examination of
the
witnesses
and
also
the
cross
examination by the other parties there in
such a situation he may exercise such a
discretion either to proceed with the matter
himself or to remand the matter to the trial
court.

32. Accordingly, in the facts of the
present case, the Deputy Director of
Consolidation has duly considered the
entire facts and also clearly recorded the
inadequacies and inaccuracies in the
essential facts which are available on
record which necessitate further re-inquiry
and evidence, for which purpose the matter
has been remitted to the trial court and such
exercise of discretion cannot be faulted.

33. Accordingly, it is for the
aforesaid reasons that this Court does not
find any infirmity in the order of Deputy
Director of Consolidation. In the remand
proceedings, the Consolidation Officer
9 All. Huzaifa Khan & Anr. Vs. The State of U.P. & Ors.
1059
shall proceed and decide the matter
afresh
after
adequate
evidence
and
conclude the proceedings, expeditiously,
say within a period of three months from
date of production of a certified copy of
this order.

34. The parties are directed to
cooperate in the proceeding.

35. Accordingly, I do not find any
infirmity in the impugned order dated
27.06.2025. The writ petition being devoid
of merits is hereby dismissed.
----------
(2025) 9 ILRA 1059
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ - C No. 8327 of 2025

Huzaifa Khan & Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Manish Jauhari, Ambuj Kumar Bajpai

Counsel for the Respondents:
C.S.C., P.K. Sinha

Issue for Consideration
Whether, the respondents, being unaided
private school, are not amenable to all the
provisions of the RTE Act and their obligations
in terms of the Act, is confined only to the
prescriptions contained under section 12 of the
Act and whether the private unaided schools are
liable to the mandate of Section 16 or not?

Head Notes
Right of Children to Free and Compulsory
Education Act, 2009-Section 12 & 16, The
Constitution of India, 1950-Article 21-A -
No prescription has been issued in terms
of the mandate of Section 16(3) in the
State of U.P. - Clear violation of rights of
the children flowing from Section 16 (2) of
the Act. The action of the respondent
school in expelling the students is also
violative of Section 16 (4) of the Act -
Guidelines of the affiliating Board will
have to yield to the mandate of the Act
and cannot be given precedence over the
Act - Writ petition allowed. (E-15)

Held- All the provisions of the Act including
Section 16 of the RTE Act are applicable to the
respondent school.
(Para 12,13 & 14)

Case Law Cited
Society for Unaided Private Schools of Rajasthan
vs. Union of India and another; (2012) 6 SCC 1;

List of Acts
Right of Children to Free and Compulsory
Education Act, 2009, The Constitution of India1950

List of Keywords
Prescriptions contained in the RTE; Right of
Children to Free and Compulsory Education Act,
2009; Detention contrary; Article 21-A; Unaided
private school amenable to all the provisions of
the RTE; Guidelines of the affiliating Board will
have to yield to the mandate of the Act

Case Arising From
The present petition has been filed by the
petitioners, who are two in number through
their father and natural guardian, stating that
the petitioner no.1aged about 11 years is
studying at the respondent no.4 school, in Class
V and the petitioner no.2 who is aged about 14
years is studying in Class IX. It is stated that
both the children are outstanding sportsman
and besides pursuing their studies with the
respondent no.4 are also pursuing the skills in
cricket and they have joined a Cricket Academy
at Lucknow. It is stated that, although the
petitioners have never been detained in past,
have now been detained in the examination
held for the session 2024-2025, in respect of the
petitioner no.1 and vide progress report of the
petitioner no.2 for the examination 2024-2025.