# Smt. Yasmeen Zia v. Smt. Haneefa Khursheed & Ors

- **Citation:** (2023) 9 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-20
- **Case number:** First Appeal From Order No. 1285 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-yasmeen-zia-v-smt-haneefa-khursheed-ors-50780
- **Pages:** 7

## Headnote

CIVIL LAW - Civil Procedure Code, 1908 -
Sections 97, 104, 104(1) & 105(2) - Order
XLIII - Rule 1(u) - Order XLI - Rule 23 : -
Appeal - against the impugned order - which
arose from the judgment and decree in Original
Suit - the trial court, disposed of the suit on a
preliminary point, and the decree was reversed
in appeal, remanding the case back to the trial
judge
-
opponent
raised
a
preliminary
objection, stating that the order of remand had
been carried out, and the trial court had passed
an order disposing of 'Issue no. 9' - they
argued that the appellant should file an appeal
against the subsequent order passed by the
trial court, making the present appeal against
the order of remand purposeless - The
appellant's counsel countered this objection,
asserting that an appeal against an order of
remand cannot become redundant with the
passing of the consequential order by the trial
court - The right of appeal granted by Order
XLIII, Rule 1(u) against an order of remand
cannot be nullified by the passing of the
consequential order pursuant to the remand -
held,
the
objections
raised
to
the
maintainability of the appeal, are, therefore,
held to be legally unsustainable - list the
appeal for admission as fresh. (Para -8, 12, 13)

Preliminary
objection
rejected,
but,
Appeal is pending. (E-11)

List of Cases cited:

## Text

314 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The record be sent back to the
court below.
----------
(2023) 9 ILRA 314
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 1285 of 2023

Smt. Yasmeen Zia ...Appellant
Versus
Smt. Haneefa Khursheed & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Devansh Misra, Sri Sudheer Rana

Counsel for the Respondents:
Sri Pankaj Agarwal

CIVIL LAW - Civil Procedure Code, 1908 -
Sections 97, 104, 104(1) & 105(2) - Order
XLIII - Rule 1(u) - Order XLI - Rule 23 : -
Appeal - against the impugned order - which
arose from the judgment and decree in Original
Suit - the trial court, disposed of the suit on a
preliminary point, and the decree was reversed
in appeal, remanding the case back to the trial
judge
-
opponent
raised
a
preliminary
objection, stating that the order of remand had
been carried out, and the trial court had passed
an order disposing of 'Issue no. 9' - they
argued that the appellant should file an appeal
against the subsequent order passed by the
trial court, making the present appeal against
the order of remand purposeless - The
appellant's counsel countered this objection,
asserting that an appeal against an order of
remand cannot become redundant with the
passing of the consequential order by the trial
court - The right of appeal granted by Order
XLIII, Rule 1(u) against an order of remand
cannot be nullified by the passing of the
consequential order pursuant to the remand -
held,
the
objections
raised
to
the
maintainability of the appeal, are, therefore,
held to be legally unsustainable - list the
appeal for admission as fresh. (Para -8, 12, 13)

Preliminary
objection
rejected,
but,
Appeal is pending. (E-11)

List of Cases cited:

1. Kanakaya Vs Lakshmayya - AIR 1951 Mad
218,

2. Kanhaiyalal Vs Tribeni Sahai - AIR 1914 All
380

3. Ramien Vs Veerappudian - AIR 1914 Mad
473(2)

4. Gokul Kalwar Vs Chandar Sekhar - AIR 1926
All 665

5. Madhu Sudan Vs Chhalimaddin Ahammad -
AIR 1928 Cal 167

6. Gurmukh Singh Vs Shiv Ram - AIR 1935 Lah
482

7. Basawant Mallappa Vs Kallappa Virbhadrappa
- AIR 1938 Bom 222

8. Madhorao Paikaji Vs Ekanathrao Balappa -
AIR 1948 Nag 56

9. Uppala Subbaiah Vs Chitrala Narsimloo - AIR
1956 Hyd 161.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Shri Devansh Mishra,
learned counsel for the appellant and Shri
Pankaj Agarwal, learned counsel for the
respondents.

2. The present appeal is directed
against the order dated 08.05.2023 passed
in Civil Appeal No. 22 of 2022, arising out
of
the
judgment
and
decree
dated
31.03.2022, passed in Original Suit No.
649 of 2016.
9 All. Smt. Yasmeen Zia Vs. Smt. Haneefa Khursheed & Ors.
315

3. By order dated 31.03.2023, the trial
court had disposed of the suit upon a
preliminary point, and the decree was
reversed in appeal in terms of the order
dated 08.05.2023, and the case was
remanded to the trial Judge.

4.

Counsel
appearing
for
the
respondents has raised a preliminary
objection to the hearing of the present
appeal by pointing out that the order of
remand has been carried out and the trial
court has passed an order dated 18.08.2023
disposing of 'Issue no. 9', as directed in
terms of the order dated 08.05.2023 passed
in the civil appeal. It is accordingly
submitted that the remedy open to the
appellant would be to file an appeal against
the subsequent order passed by the trial
court, and the present appeal against the
order of remand is now without any
purpose.

5. It is further sought to be argued that
in the absence of an appeal being filed
against the later order passed by the trial
court deciding the issue on which the
remand had been made, the said order
would remain in force even if the earlier
order is set aside, and therefore, it would be
an exercise in futility in reversing the
earlier order by entertaining the present
appeal.

6. Counsel for the appellant has
controverted the aforesaid objection by
submitting that an appeal against an order
of remand, cannot be held to have become
redundant
with
the
passing
of
the
consequential order by the trial court in
pursuance of the order of remand. It is
contended that the right of appeal granted
by Order XLIII, Rule 1(u) against an order
of remand cannot be taken away or
nullified
with
the
passing
of
the
consequential order pursuant to the order of
remand. Learned counsel has placed
reliance upon the decision in Kanakaya
Vs. Lakshmayya1.

7. The preliminary issue on which
submissions have been made by the
counsel for the parties, raises a legal
question as to whether the passing of a final
order pursuant to the remand would
constitute a bar either to the institution or
the hearing of appeal under Order XLIII
Rule 1(u) against the remand order.

8. The Civil Procedure Code, 19082
gives a right of appeal to a party aggrieved
against an order of remand in a case where
the decree of the appellate court would be
open to appeal and also imposes serious
disability in terms of Section 105(2)
precluding an appellant from taking in an
appeal from the final decree any objection
that might have been urged by way of an
appeal from an order of remand.

9. There is no provision in the Code,
express or otherwise, that may be held to
have an effect of taking away the right of a
party to appeal from an order of remand, in
case the preliminary point on which the
remand had been made, stood disposed of
before the appeal against the order of
remand was presented or heard and
disposed of.

10. Under Order XLIII Rule 1(u), an
appeal lies from an order remanding a case,
where an appeal would lie from the decree
of the appellate court. This would mean
that the order of remand would be
appealable only in a case in which an
appeal would lie from the decree which
would have been passed by the appellate
court had that court decided the case
without remand.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In a case where no appeal is
preferred from the order of remand, the
party aggrieved by the order cannot
afterwards dispute its correctness in an
appeal from the final decree in view of the
provision contained under Section 105(2).

12. Section 104, read with Order
XLIII, Rule 1, expressly authorizes and
creates a forum for appeal against orders
falling under various clauses of Order
XLIII, Rule 1. 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.

13. Order XLIII, Rule 1(u) does not
contain any express bar by providing any
condition that an order of remand would be
appealable only if the case had not been
finally determined by the trial court before
filing of the appeal or during its pendency.
There is also no provision which may lead
to an inference that an appeal filed against
an order of remand would be rendered
infructuous in case the preliminary point on
which the remand had been made was
disposed of during the pendency of the
appeal.

14. The right of appeal and the
jurisdiction for the purpose, having been
conferred expressly by the statute, cannot
be taken away except by express words, or
by necessary implication. The Code does
not say, in express terms or otherwise, that
the appeal against the order of remand
would lie only if the point on which the
remand had been made, had not been
finally determined by the court of first
instance, before the appeal is preferred or is
heard.

15. The reason why the legislature, in
its wisdom, did not provide any such
exclusionary clause, in express terms,
would stem from the fact that in the event,
a party, for any reason, is unable to appeal
against the order of remand before an order
is passed consequent to a remand, it would
lose all opportunity of objecting to that
order in view of Section 105(2), and
simultaneously, it would also be deprived
of the right of appeal expressly conferred
by Section 104(1) read with Order XLIII
Rule 1(u).

16. The fallacy in taking a position to
the contrary would be manifest by taking
the illustration of a situation where the first
appellate court passes an order of remand,
and before it is subjected to appeal under
Order XLIII Rule 1(u), the trial court
passes an order on merits pursuant to the
remand order, and the order so passed is
unassailable. If a view is taken that in such
a situation, the only remedy available to the
party concerned would be to challenge the
consequential order passed by the trial
judge pursuant to the remand order, the
party concerned would be forced to file an
appeal against the order of trial court even
though
the
said
order
may
be
unimpeachable, and by virtue of the bar
under Section 105(2), he would not be
entitled in that appeal to attack the remand
order. This would, obviously, create a
serious prejudice to the rights of the party
and any such exclusion in the absence of
9 All. Smt. Yasmeen Zia Vs. Smt. Haneefa Khursheed & Ors.
317
any express provision to the said effect
having been provided by the legislature,
cannot be readily inferred.

17. It would be seen that under the
scheme of the Code, an order of remand
has an independent existence, with an
independent right of appeal having been
provided against such an order. The
disability created in terms of Section
105(2), in a case where the party concerned
fails to exercise its right of appeal against
an order of remand, makes the right of
appeal provided under Order XLIII, Rule 1
Clause (u), even more valuable.

18. 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. This is more so for the
reason that a separate right to appeal is
provided against such an order under Order
XIII, Rule 1(u), and under Section 105(2),
an obligation is cast on a person aggrieved
with the order of remand to appeal from it,
and in the absence of doing so, he would be
precluded from raising any objection with
regard to propriety or correctness of the
order at a subsequent stage of litigation. It
would, therefore, not be possible to read
into the Code any provision to the effect
that the passing of a final order pursuant to
the remand would constitute a bar either to
the institution or the hearing of any appeal
against the remand order.

19. An analogy may be drawn with
Section 97 of the Code, which provides that
where any party aggrieved by a preliminary
decree does not appeal from such decree,
he shall be precluded from disputing its
correctness in any appeal which may be
preferred from the final decree. Although,
the provisions of Section 97 would have no
applicability to the facts of the present case,
the analogy would be apt for the reason that
the position of an appeal from the order of
remand and an appeal from a preliminary
decree would be very similar as in both the
situations, if the appeal which is provided
by the statute, is not preferred, the order or
the decree, as the case may be, cannot be
challenged at a subsequent stage.

20. The question whether the passing
of a final decree would affect the
maintainability of the appeal, already filed,
from the preliminary decree, has been the
subject matter of consideration before
various High Courts, and it has been held
that the passing of a final decree
subsequent to the institution of an appeal
would not affect the maintainability of the
appeal. Reference in this regard may be
made to the decisions in Kanhaiyalal v.
Tribeni
Sahai3,
Ramien
v.
Veerappudian4,
Gokul
Kalwar
v.
Chandar Sekhar5, Madhu Sudan v.
Chhalimaddin
Ahammad6,
Gurmukh
Singh v. Shiv Ram7, Basawant Mallappa
v. Kallappa Virbhadrappa8, Madhorao
Paikaji v. Ekanathrao Balappa9, and
Uppala
Subbaiah
v.
Chitrala
Narsimloo10.

21. The common reasoning taken to
come to the aforesaid conclusion, is
twofold: firstly, that the preliminary decree
has an independent existence and it cannot
be assailed in an appeal from the final
decree; and secondly, if the preliminary
decree was set aside, the final decree would
fall on its own. It was also held that the
preliminary decree having an independent
existence and the person aggrieved being
bound to appeal from it, that right could not
318 INDIAN LAW REPORTS ALLAHABAD SERIES
be taken away by a final order being passed
either before or after the presentation of an
appeal from the preliminary decree.

22. An order of remand made under
Order XLI Rule 23, is also having an
analogous position, being appealable under
Order XLIII, Rule 1(u), with a condition
that if no appeal is filed therefrom, it
cannot be challenged in view of the bar
under Section 105(2). Thus, the order of
remand
would
have
an
independent
existence and if any person is aggrieved
thereby, he would have no other alternative
but to appeal from it, otherwise, he would
be precluded from disputing its correctness
later on.

23. The law gives to the person
aggrieved by the order of remand, a right to
appeal, and that right cannot be taken away
only for the reason that a final order has
been passed consequent to the remand,
either before or after a person files an
appeal against the remand order. So long as
his appeal is otherwise in order, he would
have a right to be heard, and such an appeal
cannot be dismissed on the mere ground
that another appeal has not been filed from
the final order passed by the trial court
consequent to the remand. This would be
so also for the reason that the final order
which is passed by the trial court after the
order of remand is in its nature dependent
and subordinate to the order of remand,
since it would be consequential to the same
and is to be controlled by the terms of the
remand order. It would, therefore, follow
that if the remand order is set aside, the
order passed by the trial court, consequent
thereto, would also fall on the ground.

24. As regards the contention sought
to be raised by the respondents that the
later order passed by the trial court
consequent to the remand order having not
been appealed against, would remain in
force even if the earlier order were to be
reversed, and therefore, the present appeal
would be of no consequence, it may be
observed that the later order passed by the
trial court merely carries out the directions
of the remand made by the first appellate
court, and it cannot in any way be held to
have the effect of superseding the said
order. The validity of the later order passed
by the trial judge would, therefore, depend
upon the validity of the earlier order passed
by the first appellate court. The trial court's
jurisdiction
to
hear
the
case
being
dependent upon the remand order, if the
remand order is held to be invalid, the
proceedings consequent to the remand
order would be rendered non est.

25. The effect of reversal of the order
of remand under Order XLI, Rule 23,
would be that anything done in pursuance
of such an order would ipso facto cease to
have any effect and the trial court would
have no jurisdiction to pass any further
order in the case. The contention raised by
the respondent that the final order passed
by the trial court, which is the result of the
remand made by the first appellate court,
would survive the reversal of the remand
order, would, therefore, lead to an apparent
logical inconsistency, and the argument
would be unsupportable.

26. This may also be viewed from
another perspective. It may very well be
possible that a person has no objection to
the final order passed by the trial court,
provided the order of remand was correct,
and his only objection may be to the order
of remand itself. The final order being
consequential upon or having the effect of
merely
carrying
out
the
directions
contained in the order of remand, there is
9 All. Smt. Yasmeen Zia Vs. Smt. Haneefa Khursheed & Ors.
319
no reason why the party concerned should
be forced into filing an appeal against the
said final order, when he has a statutory
right of appeal under Order XLIII, Rule
1(u),
against
the
order
of
remand,
especially, when in the appeal against the
final order it would not be open to him to
impugn the correctness of the order of
remand by virtue of the bar imposed by
Section 105(2).

27. The appeal filed against an order
of remand, if allowed, would render the
appeal to be filed against the final order on
the same grounds, unnecessary and without
purpose. The jurisdiction of the trial court
to carry on with the proceedings after the
remand being dependent on the validity of
the order of remand, if that order is set
aside of an appeal, the final order passed
consequent to the same, and all proceedings
taken under the remand order, would fall
with it.

28. The final order passed in pursuance
of the order of remand in the same suit, would
be dependent and subordinate to the order of
remand. The appellate court, as long as it is in
seisin of the appeal against the order of
remand, would have the power to reverse or
modify the remand order, and to this extent,
would also have the power to resultantly affect
the operation of the final order passed in
pursuance of the remand order.

29. 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.

30. The right to appeal against the order
of remand would not be lost merely because
the party concerned has contested the
proceedings in the trial court after the remand.
It goes without saying that if the order of
remand is ultimately reversed on the appeal
against it, the subsequent order passed by the
trial court, which depends for its validity on
the earlier order of remand, would ipso facto
cease to have effect. The subsequent
proceedings conducted in pursuance of an
order of remand would be subordinate and
dependent, and would be liable to be
superseded by the reversal of the order of
remand, which is subject matter of appeal
before a higher forum.

31. The final order, in its nature, being
dependent and subordinate, as it has been
passed as a consequence of the proceedings
directed and controlled by the remand order,
when the said order is set aside, the final order
stands superseded automatically. The order
passed by the trial court consequent to the
order of remand, therefore, cannot remain in
force if the remand order on which it is
dependent, is reversed in appeal.

32. Having regard to the foregoing
discussion, it would follow that an appeal
against an order of remand, properly
presented, and otherwise in order, would not
be rendered defunct or inconsequential by the
passing of a final order giving effect to the
terms of the remand order.

33. The appealability of the remand
order passed under Order XLI, Rule 23,
would in no manner be affected by the
passing of a final order consequent to the
remand.
320 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The objections raised to the
maintainability of the appeal, are, therefore,
held to be legally unsustainable.

35. As prayed by learned counsel for
the
parties,
list
for
admission
on
27.09.2023, as fresh.
----------
(2023) 9 ILRA 320
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.09.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal No. 30 of 1977

Noor Ahmad ...Appellant
Versus
Mohd. Ahmad ...Respondent

Counsel for the Appellant:
Smt. S. Rahman, A.A. Siddiqui, Mohammad
Aslam Khan, Mohd. Aslam Khan. Z. Jilani

Counsel for the Respondents:
K.B. Sinha, Alok Sinha, Durgesh Kumar Pathak,
P.K. Khare, Shashwat Srivastava, Umesh Kumar
Srivastava, V. Mishra

A. Civil Law -Civil Procedure Code, 1908Section 96 - Order 41 Rule 27- suit for
eviction
and
damages
for
use
and
occupation has been decreed in favour of
the plaintiffs/respondents-The case of the
plaintiffs was that their father Quadir
Mian had gifted the property in question
to the plaintiffs by means of registered
gift deed dated 20.04.1967. In terms of
the said gift deed the plaintiffs have the
title to the same and since the defendants
who are their step brothers (sons of
Quadir Mian from his first wife) who
requested the plaintiffs to permit them to
continue with their occupation in the
disputed property for sometime and they
promised to vacate the same and later as
they refused to do so, hence the plaintiffs
treating
the
defendants
as
licencees
terminated their licence and issued a
notice for vacation of the premises which
was not complied with and thus instituted
the suit seeking decree of eviction as well
as
damages
for
wrongful
use
and
occupation.The
defendants
filed
their
written statement and contested the suit
on the premise that the property in
question belonged to Barati Mian, the
grand father of the defendants (father of
Quadir Mian). As Barati Mian was aware of
the fact that after Quadir Mian had remarried, his relations with his children
from the first marriage was not cordial,
hence in order to protect and secure the
rights of the children from the first
marriage of Quadir Mian, Barati Mian had
gifted the property to the defendants and
as such they claimed their title over the
same and that for the said reason the
plaintiffs could not seek their eviction nor
could seek damages for wrongful use and
occupation.Even after the death of Barati
Mian in the year 1950, the said document
was never handed over nor there is any
reference to it in the pleadings of the
defendants. Saffi-ul-laha being the son of
Barati Mian and real brother of Quadir
Mian and father-in-law of the defendants
could very well throw light on the
aforesaid aspect as well that is to say that
whether any division was made by Barati
Mian during his lifetime and that each of
the
sibling
of
Saffi-ul-laha
got
the
property which is in their possession, as
divided by Barati Mian and what portion
was
gifted
to
the
defendants
from
amongst the properties of Barati Mian. He
was also an important witness to depose
whether
the
house
in
Kazipur
was
purchased by Quadir Mian to settle his son
from his first wife or it was actually
purchased by the uncle (Mama) of the
defendants. The defendants also did not
lead any evidence in this regard nor filed
the deed of the property of Kazipura on
record. In light of whatever evidence was
on record including the deposition of
Sirajuddin this Court has no hesitation to
concur with the reasons given by the trial
Court and the Court finds that the alleged
gift set up by the defendants could not be
cogently proved whereas the gift made by