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by sayum
19 September 2026 9:00 AM
"The U.P. Amendment carves out two distinct situations warranting remand under Rule 23; first, the traditional ground of reversal of a decree passed on a preliminary point; and second, the independent ground of interest of justice, which the Appellate Court may invoke even where the suit has been disposed of on merits." Allahabad High Court, in a ruling, held that the RERA Appellate Tribunal possesses the inherent power to remand a matter to the Regulatory Authority if it is necessary for a just and complete adjudication of the controversy, even beyond the scope of preliminary points.
A bench of Hon’ble Mr. Justice Syed Qamar Hasan Rizvi observed that such a power is essential to ensure that substantive issues, such as the validity of a unit cancellation, are not left undecided in the interest of justice.
The dispute arose between M/s Balaji Infracare Pvt. Ltd. and an allottee, Vikas Sharma, regarding the cancellation of an allotment for Flat No. 602. While the U.P. RERA originally ordered a refund of the deposited amount, the Appellate Tribunal later set aside this order and remanded the matter to the Regulatory Authority to determine the legality of the cancellation letter dated 26.10.2019 under Section 11(5) of the RERA Act. The appellant developer challenged this remand, arguing it traveled beyond the pleadings and prayer.
The primary question before the court was whether the Tribunal’s order of remand was legally sustainable or if it exceeded the scope of its jurisdiction. The court also examined whether the challenge raised by the developer constituted a "substantial question of law" as required under Section 58 of the RERA Act read with Section 100 of the CPC.
Scope of Remand Under Order XLI Rule 23 CPC
The Court emphasized that while Order XLI Rule 23 of the CPC generally restricts remand to cases disposed of on preliminary points, the U.P. Amendment to the CPC significantly broadens this horizon. The court noted that the amendment allows for a remand whenever the appellate court considers it necessary in the interest of justice, regardless of whether the initial decision was based on merits or a preliminary finding.
Ensuring Just and Complete Adjudication
The bench observed that the Regulatory Authority had failed to address whether the cancellation letter attained finality or was effectively waived by the developer's subsequent conduct. By remanding the case, the Tribunal ensured that the unresolved issue of the cancellation's legality—which lies at the root of the allottee’s claim for interest—is fully examined.
"The remand made by the learned Tribunal does not travel beyond the pleadings or the statutory scheme of the Act of 2016 for the obvious reason that the complaint itself raised the issue concerning the cancellation of the unit."
Absence of Substantial Question of Law
The Court reiterated that a question of fact, even if strenuously contested, does not metamorphose into a substantial question of law. To invoke the High Court’s jurisdiction under Section 58 of the RERA Act, a question must be debatable and not already settled by binding precedent. Since the Tribunal’s order did not finally determine the rights of the parties but merely directed a procedural necessity, no grounds for interference were established.
"It is trite in law that an Appellate Court does not ordinarily interfere with an order of remand, particularly where such order does not finally determine the rights of the parties or cause any grave injustice or prejudice to either of them."
The High Court dismissed the appeal, noting that the developer remained at liberty to contest all issues, including the legality of the cancellation, before the Regulatory Authority upon remand. The court concluded that the Tribunal correctly exercised its appellate jurisdiction to ensure that the factual and legal matrix surrounding the cancellation of the allotment is properly settled in compliance with Section 11(5) of the RERA Act.
Date of Decision: 07 September 2026
