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2021 DIGILAW 558 (MP)

Khilla Colonizers Pvt. Ltd. v. Subhash Jain

2021-07-19

RAJENDRA KUMAR SRIVASTAVA

body2021
ORDER : Heard on the question of maintainability. 2. On perusal of Office Note dated 10.05.2021, it appears that the Registry of this High Court raised the objection of maintainability as Second Appeal under Section 100 of C.P.C. would be maintainable against the impugned order. As per office, instead of filing Second Appeal, the appellant has preferred this Misc. Appeal, challenging the order dated 17.03.2021, passed by Madhya Pradesh Real Estate Appellate Tribunal, Bhopal in Appeal No.A-144/2019. 3. The brief facts of the case are that the appellant works as Developer & Architect whereas the respondent is a purchaser of two plots in a residential colony situated at village Barkheda Salam, District-Bhopal. The respondent has filed a complaint before RERA against the appellant regarding some development issues in the site. The adjudicating Officer of RERA has disposed of the case vide order dated 03.07.2019, directing the appellant to pay compensation to the respondent and also imposed some conditions upon the appellant. Being aggrieved by the said order, the respondent No.1 approached the Appellate Tribunal of RERA by filing Appeal No.A-144/2019. By the impugned order, the Tribunal set aside the order dated 03.07.2019 and modified the amount of compensation and interest to be paid to the respondent. Hence, under Section 58 of Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as RERA), the appellant approached this High Court. 4. The learned counsel for the appellant submits that the Registry of this High Court has wrongly pointed out the objection regarding maintainability of this appeal. The proceedings of RERA are of a summary nature to which the provisions of Code of Civil Procedure are not applicable. The order of Appellate Tribunal may not be termed as a ‘decree’ under Section 2 (2) of C.P.C. and therefore, the instant appeal would be maintainable against the order passed by the Appellate Tribunal. He also read the provision of Section 58 of RERA and submits that it provides for an appeal against the decision or order of the Appellate Tribunal but here does not use the word ‘Second Appeal’ as used in Section 100 of the C.P.C. It only provides that the appeal can be preferred on any of the grounds mentioned in Section 100 of C.P.C. but it does not mean that only Second Appeal would lie. It is further argued by the counsel that for filing a Second Appeal, the condition precedent is the decree passed in appeal and that too by any Court Sub-ordinate to the High Court. The Appellate Tribunal of RERA is not a Sub-ordinate Court to the High Court and order passed by Appellate Tribunal is not a decree, therefore, Second Appeal would not lie against the said order. In support of his contention, he relied upon the order passed by Bench of Allahabad High Court in the case of Supertech Ltd. Vs. Subrat Sen reported in (2018) SCC OnLine All 5629. He prays for maintainability of this appeal. 5. Heard. 6. The appellant seeks maintainability of this appeal in lieu of Second Appeal on the grounds that the Appellate Tribunal is not a Sub-ordinate Court to the High Court and order passed by the Appellate Tribunal cannot be termed as ‘decree’. Before entering into the said question, I would prefer to read the relevant clause of M.P. High Court Rules. 7. In our High Court, the Second Appeal ordinarily registered for following civil appeals 1. An appeal under Section 100 of the Code of Civil Procedure, 1908; or 2. Any other appeal of civil nature provided or permissible under any law, for the time being in force, against an appellate decree. 8. On careful reading of the aforesaid clause, it is manifest that there are two occasions for filing the second appeal before this High Court. First, under Section 100 of the C.P.C. and another against an appellate decree passed in appeal of civil nature. 9. As per Section 100 of C.P.C., an appeal shall lie to the High Court from every ‘decree’ passed in appeal by any Court Sub-ordinate to the High Court, if the High Court is satisfied that the case involves substantial question of law. For the second clause of above-mentioned High Court Rules, the second appeal can only be registered against an appellate decree passed in any other appeal of civil nature. 10. Therefore, it is essential that the second appeal should be arise out of a decree passed in appeal. 11. As above noted, the learned counsel for the appellant raised the argument that the order passed by the Appellate Tribunal is not a decree, moreover he argued that the Appellant Tribunal is not a Sub-ordinate Court to the High Court. 10. Therefore, it is essential that the second appeal should be arise out of a decree passed in appeal. 11. As above noted, the learned counsel for the appellant raised the argument that the order passed by the Appellate Tribunal is not a decree, moreover he argued that the Appellant Tribunal is not a Sub-ordinate Court to the High Court. He has also produced the copy of order passed by Allahabad High Court in the case of Supertech Ltd. (supra) wherein the Bench of Allahabad High Court has considered the relevant provisions of Court Fees Act, RERA as well as Code of Civil Procedure. The Bench found that the order passed by the Appellate Tribunal is not a ‘decree’ for the purposes of filing an appeal under Section 58 of the RERA before the High Court. Before reaching this conclusion, the Bench of Allahabad High Court has also discussed the applicability and scope of Section 57 of RERA wherein it is prescribed that the order passed by the Appellate Tribunal shall be executable as a ‘decree’. After quoting the relevant provision, the Bench has held as under :- “26. A reading of the aforesaid provision itself makes it clear that by creating a legal fiction, the order of the Appellate Tribunal has been recognised to be a decree only for limited purpose of execution but not for the purposes of filing an appeal against it. It is settled law that in applying legal fiction one should not travel beyond the limits for which it has been created. In Paramjeet Singh Patheja v. ICDS Ltd. JT 2006 (10) SC 41 the Supreme Court in paragraph 36 of the above decision observed that a legal fiction must be limited to the purpose for which it was created. Therefore, for the purposes of appeal under Section 58 of the R.E.R.A. the decision or order of the Appellate Tribunal would remain to be an order simplicitor and would not be a decree within the meaning of Section 2(2) of the C.P.C.” 12. The Allahabad High Court further relied upon the judgment passed by the Hon’ble Supreme Court in the case of Diwan Brothers vs. Central Bank of India, Bombay reported in (1976) 3 SCC 800 , and has held as under : “40. The Allahabad High Court further relied upon the judgment passed by the Hon’ble Supreme Court in the case of Diwan Brothers vs. Central Bank of India, Bombay reported in (1976) 3 SCC 800 , and has held as under : “40. In Diwan Brothers v. Central Bank of India, Bombay (1976) 3 SCC 800 : AIR 1976 SC 1503 the court was ceased with a matter of payment of court fees in an appeal before the High Court arising from the order of the Tribunal appointed under the Displaced Persons (Debts Adjustment) Act 1951. In the said case also the question that fell for consideration was whether or not the decision given by the Tribunal under the aforesaid Act could be said to be a decree within the meaning of Article 11 of Schedule II to the Act for the purposes of payment of court fee. 41. The court observed that the Tribunal under the Act cannot be called a court as there is clear distinction between a Tribunal and the Court. The proceedings before the Tribunal do not start with a plaint and as such would not culminate into a decree. 42. The mere description of the decision of the Tribunal to be a decree for the limited purpose would not make the decision a decree within the meaning of Section 2(2) of the C.P.C.” 13. Now, it becomes undisputed that the order passed by the Appellate Tribunal under RERA cannot be termed as a ‘decree’ under Section 2(2) of C.P.C. even though Section 57 of said Act makes the order passed by the Appellate Tribunal executable as a ‘decree’. The order passed by the Bench of Allahabad of High Court is in consonance with the law. 14. In view of the aforesaid discussion, I am of the opinion that this Misc. Appeal is maintainable against the impugned order. 15. The learned counsel for the appellant also prays for staying the execution of impugned order. He submits that he has also preferred an application in this regard. 16. On perusal of case file, it appears that the said application has not been registered by the office and therefore, no such order can be passed at this point of time. 17. Office is directed to register the said IA and call for the record and also list the case for admission in the week commencing 26.07.2021.