This matter was heard at length by me. After going through the order of the first appellate court, impugned in this second appeal, the Court finds that it has been recorded that the earlier order of remand passed in the first appeal by the Additional Civil Judge was legally not justified. Therefore, ignoring the order of remand and the direction issued therein, the first appeal has been decided afresh on merit.
This has led a very peculiar situation where a final judgment in a first appeal filed under Section 96 of C.P.C. by the competent court at the relevant time has been held to be bad by a court exercising the same jurisdiction under Section 96 C.P.C.
Facts in short giving rise to this second appeal are as follows:
Original Suit No. 214 of 1981, the valuation whereof was Rs. 5000/-, was decreed by the trial court at the relevant time i. e. Munsif on 04.03.1983. A first appeal under Section 96 of the Code of Civil Procedure was filed before the District Judge, being Civil Appeal No. 352 of 1983. Under the work distribution order made by the District Judge, the appeal came to be heard by 5th Additional Civil Judge (Senior Division). The judgment and decree of the trial court was set aside and the matter was remanded to the trial court, for hearing of the suit afresh, vide judgment and order dated 07.10.1985. Against the order of remand a First Appeal From Order No. 15 of 1986, under Order 43 Rule 1(u) C.P.C. was filed before the Hon'ble High Court.
While First Appeal From Order was pending before this Court, Section 21 of the Bengal, Agra and Assam Civil Court Act, 1887 was amended vide U.P. Civil Laws (Amendment) Act, 1991 w.e.f. 15.01.1991. Under the amended provision of Section 21, as applicable in the State of Uttar Pradesh, an appeal from a decree or an order of a Civil Judge would be maintainable before the District Judge where the valuation of the suit (instituted earlier or subsequent to amendment) did not exceed one lakh. Section (1)(a) of Section 21 further clarifies that any appeal arising out of a suit, valuation whereof was less than rupees one lakh, if pending before High Court shall be transferred back to the District Judge having jurisdiction, who may either decide it himself or assign it to any additional judge subordinate to him.
In view of the aforesaid provision, the First Appeal From Order was transferred to the Court of District Judge under an order of the Hon'ble High Court dated 14.09.2004. The District Judge, on receipt of the papers from the High Court, made an order directing that the First Appeal From Order should have been treated as a second appeal before the Hon'ble High Court and therefore he transmitted the papers back to the High Court for the purpose.
A review application was made on behalf of the plaintiff stating therein that since the appeal filed under Section 96 of the C.P.C. has already been decided, the First Appeal From Order arises therefrom should not be heard by the District Court. This application was rejected by the High Court vide order dated 22nd November, 2007 and the relevant portion of the order, insofar as it is relevant for out purpose is quoted herein below:
"As regards the second submission of the learned counsel for the appeal I have perused the judgment and order of the first appellate court and finds that it has been passed by the 5th Additional Civil Judge in his independent capacity and not as District judge or in exercise of powers of a District Judge or an Additional District Judge. Therefore, the said submission is totally misconceived and is not acceptable."
The court below, being left with no other alternative, has proceeded to decide the First Appeal From Order also and it is in exercise of such power it has held that earlier order of remand made on an appeal filed Section 96 C.P.C. was bad. Thereafter he has proceeded to decide the appeal afresh on merit. It is against this order of the Additional District Judge dated 13.08.2010 that the present second appeal has been filed.
I am of the opinion that once an appeal under Section 96 C.P.C. has been decided and the matter has been remanded, no appeal against the order of remand can be heard by the District Judge under Order 43 Rule 1(u) and so long as the order of remand passed in an appeal under Section 96 C.P.C. is not decided by a higher court, the same would be binding upon a court exercising concurrent jurisdiction under Section 96 C.P.C. itself. This Court may refer to Section 96 C.P.C. itself, which provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear the appeal from decision of such court. Meaning thereby that Section 96 contemplates first appeal from the decree of the original court only. Section 100 provides for a second appeal from a judgment and decree passed by any court subordinate to the High Court. Section 104 provides for filing of appeal against orders but Sub Section 2 prohibits any further appeal from any order passed in appeal made under the said Section (104).
This Court may reproduce Order XLIII Rule 1(u):
"1. Appeals from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely:
...................
(u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court."
Meaning thereby that instead of second appeal being filed against an order of remand, passed in an appeal filed under Section 96 C.P.C. a First Appeal From Order has been provided under Section 104 read with Order XLIII Rule 1(u) C.P.C. to a Court where an appeal will lie from the decree of the Appellate Court.
As already noticed above, second appeal against an order of the first appellate court is maintainable before the High Court only. Therefore, under Section 104 read with Order XLIII Rule 1(u) a First Appeal From Order against the order of the first appellate court made under Section 96 C.P.C. remanding the matter to the trial court, a First Appeal From Order would lie to the High Court only.
The said conclusion is even otherwise necessary in order to maintain the hierarchy of the Court, inasmuch as an order of remand passed in an appeal under Section 96 C.P.C. may not be heard and decided by a court exercising concurrent jurisdiction of hearing the appeal under Section 96 C.P.C. itself, as has been done in the facts of the present case.
Therefore, irrespective of Section 21 of the U.P. Civil Laws (Amendment) Act, 1991 and the valuation of the suit in view of the specific language of the Code of Civil Procedure contained in Order XLIII Rule 1(u), First Appeal From Order against an order of remand made in a first information report Appeal under Section 96 C.P.C. has to be filed before and heard by the High Court only, inasmuch as an appeal against the decree of the first appellate court under Section 96 can be heard by the High Court under Section 100 C.P.C. only.
This Court, therefore, feel that the law laid down by the High Court in the case of Shiv Raj Singh and others vs. Nabab Singh and another requires reconsideration by a larger bench. The following questions of law are being referred for consideration to a Larger Bench:
(a) Whether an appeal under Order 43 Rule 1(u) is to be heard by the High Court only against an order of remand passed by the first appellate court in exercise of its power under Section 96 C.P.C.
(b) Whether the judgment of the Single Judge in the case of Siv Raj Singh (supra) lays down the correct law.
Since the appellant is pressing for an interim order, it is desirable that the reference may be heard and decided at the earliest possible.
Let the papers be placed before the Hon'ble The Chief Justice for the purpose.
The matter shall not be treated to be tied up or part heard to this Court.
Order Date :- 23.11.2010 Pkb/