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"As far as such an appeal filed against the order of remand is concerned, the law is well-settled. Such an appeal can be heard provided a substantial question of law within the meaning of Section 100 of the CPC arises," the bench said
The Supreme Court has said that an appeal against an order of remand is not available as a matter of right and it cannot be entertained unless a substantial question of law is involved.
A bench of Justices Abhay S Oka and Pankaj Mithal has added that when there is an order of remand by the First Appellate Court, an appeal from the said order under clause (u) of Rule 1 of Order XLIII of the Civil Procedure Code is not available as a matter of right.
"This is consistent with the public policy and, therefore, the view taken by this Court is that for all purposes, an appeal under clause (u) of Rule 1 of Order XLIII of the CPC will be treated as a second appeal under Section 100 of the CPC," the bench said.
An appeal was preferred before the High Court against an order of remand passed by the District Court in the first appeal against the decree of the Trial Court. The appeal was filed by invoking clause (u) of Rule 1 of Order XLIII of the Code of Civil Procedure, 1908.
The bench pointed out, amongst several decisions, the Supreme Court has taken a view in the case of 'Narayanan vs. Kumaran & Ors' (2004).
In the instant case, the bench, however, found that the appeal against the order of remand was decided by the Single Judge of the High Court without examining whether a substantial question of law arose and without framing any substantial question of law.
In fact, the bench noted, the Single Judge interfered with the order of remand. The requirement of framing substantial question of law was brought to the notice of the High Court by filing a review, which failed.
The court, thus, allowed the appeals and set aside the order. It also restored to the file of the High Court.
"Normally, this Court ought not to fix a time bound schedule for the disposal of the case before the High Court. However, the appeals which are restored under this order are of the year 2012 and that also against an order of remand. Therefore, we are sure that the High Court will give necessary out of turn priority to the disposal of the said appeals considering the peculiar facts," the bench further said.
Case Title: SHAHID HUSSAIN vs. MAHTABA BEGUM AND ORS. AND ETC.
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