ASHFAQH Vs. ZAHIR HASSAN

JUDGEMENT

(1.) This is a Second Appeal which was initially instituted by the learned counsel for the appellant under the Head of Appeal from Order, under the pretext that the same happens to be an appeal as provided under Sec. 58, which was arising out of an order passed in the proceedings under the Real Estate (Regulation and Development) Act, 2016, by it Appellate Tribunal has been constituted under Ss. 43 and 44 of the Act of 2016. Initially, when the appeal was instituted as an Appeal from Order, the Registry of this Court has raised an objection to the effect, that in view of a literal interpretation of Sec. 58 of the Act of 2016. It ought to have been registered as a Second Appeal for the reason that Sec. 58, which is providing for appeal to the High Court, itself makes reference to Sec. 100 of CPC, wherein, it has mentioned that an appeal against the Appellate Tribunal judgment could be preferred under Sec. 58, before the High Court in same fashion and manner as that which is contemplated under Sec. 58 of the Act of 2016, to be read with Sec. 100 of CPC which read as under:-

(2.) The distinction which has been sought to be drawn by the learned counsel for the appellant herein is that a reference made to Sec. 100 of CPC, under Sec. 58 of the Act, will not in itself imply that all the elements and essentialities as provided for in Sec. 100 of CPC would be attracted for the reason that the challenge which was given to the judgment was that of the Appellate Tribunal, as constituted under the Act itself, and in support of his contention he has made reference to a judgment as reported in (2010) 9 Supreme Court Cases 642, James Joseph vs. State of Kerala, where the Hon'ble Apex Court was dealing with a different set of litigations which was arising out of different provisions contemplated under the various acts which provides for an appeal against an appellate order and the provisions which has been dealt with in the aforesaid judgment was in relation to the provisions relating to a challenge given to a decision of the Forest Settlement Officer in view of the implications used under Sec. 12A(1) of the Kerala Forest Act, 1961. The provisions as far as it relates to an appeal against a decision or an order of the Forest Settlement Officer, the implication of Sec. 83 was also taken into consideration as to whether the decision taken by the Forest Settlement Officer would constitute to be a decree to make an appeal tenable before the High Court in a manner as to be a Second Appeal or it would be filed as an appeal against an order. The issue which was dealt with by the Hon'ble Apex Court in para 8 of the said judgment in the context of the appellate provisions as contained under Sec. 6, where, the Forest Settlement Officer inquired into the claim raised under the Act and what would be the impact of the decision taken by the Forest Settlement Officer whether it takes a shape of decree of a Civil Court or not. But as far as the power pertaining to an appeal under Sec. 12A, which has been given therein was as against any order of the District Court in an appeal under Sec. 11, which has been provided and appeal under Sec. 11 of the said Act against an order of Forest Settlement Officer under Sec. 6 of the Act of 1961. As far as Sec. 12A is concerned, where it provides an appeal against an Appellate Order, the said provision will not be of any rescue to the argument extended by the learned counsel for the appellant for the reason being that Sec. 12A, where it contemplates an appeal against an appellate order it neither refers that it has been provided to be preferred as a Second Appeal nor does it make any reference to the provisions contained under Sec. 100 of CPC. It simply embarks upon that it has to be an appeal to the High Court against an appellate order under Sec. 12A which has been passed by the District Court in an appeal under Sec. 11 of the Act. Hence, since the set of provisions which deals with all together a distinct situation, wherein, though the provisions of the Code of Civil Procedure has been made attracted but the appellate provision of an appeal before the High Court under Sec. 12A against an appellate order under Sec. 11 by the District Court, it does not circumscribe the appellate jurisdiction whether it has to be a Second Appeal or a appeal as provided under Sec. 100 of CPC.

(3.) Thus as far as the analogy which has been sought to be dealt by the learned counsel for the appellant in view of the provisions contained under Ss. 11 and 12A will not be available or attracted in the instant case. Rather, if the said judgment of the Hon'ble Apex Court is scrutinized as far as it relates to the determination of the meaning of an appeal as used by the legislature in various provisions, it only contemplates that the appeal is a process of a civil law which originates where a scrutiny of a judgment rendered by the court of inception of the proceeding is put to judicial scrutiny by a Superior Court and there the Superior Appellate Court exercises the power of a First Appellate Court to scrutinize the facts and law both, it is the proceeding where its scope and ambit of exercise of powers is little wider then what is contemplated under Sec. 100 of CPC and that is why, the legislature being conscious the Civil Procedure Code itself which was promulgated in 1908 has distinctly provided with the provisions of an appeal under Sec. 96 and a Second Appeal under Sec. 100 of CPC with a definite and distinct intention with regards to the ambit within which the court which deals with an appeal or Second Appeal could exercise their powers. The scope of Sec. 100 of CPC has been by aforesaid judgment of Hon'ble Apex Court in the case of James Joseph (supra) in its paras 15 and 16, which is quoted hereunder:-