ORDER

The appellant has preferred this appeal under Section 58(1) of the Real Estate (Regulation and Development) Act, (‘the Act’ in short) 2016 under Civil Appellate jurisdiction, which has been registered a Second Appeal No. 132 of 2021 (Smt. Chandra Prabha Lal vs. M/s Hem Developers Pvt. Ltd) under Civil Appellate jurisdiction.

2. The appellant has assailed an order dated 22.01.2020 passed by the Real Estate Appellate Tribunal, Bihar (‘the Tribunal’ in short), in the present appeal.

3. The office has placed this matter on the point of maintainability with the following office notes: –

“(i) Miscellaneous Appeal under Section 58 of the RERA Act would be a proper forum and is to be incorporated in the software for filing an appeal against the aforesaid impugned order.

Or,

(ii) Special Category of Appeal i.e. RERA Appeal under Section 58 of the aforesaid RERA Act is to be incorporated in the software against the aforesaid impugned order

Or,

(iii) Any other order the Hon’ble Court may deem fit and proper.”

4. Two short questions which require consideration in view of the aforementioned office notes are: –

(i) Whether a second appeal under Section 58(1) of the Act would lie against an order passed by the Tribunal or such appeal would be in the nature of miscellaneous appeal?

(ii) What should be the court fee payable for filing an appeal before this Court under Section 58(1) of the Act?

5. Let us take up the issues by adverting to Section 58 of the Act, which reads as under: –

“Appeal to High Court

(1) Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908): Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Explanation. – The expression “High Court” means the High Court of a State or Union territory where the real estate project is situated.

(2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.

This clause relates to the appeal to High Court.

Sub-clause (1) provides that any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of ninety days from the date of communication of the decision or order of the Appellate Tribunal, to him, on anyone or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908. However, the High Court may, entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Sub-clause (2) provides that no appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.”

6. It is manifest from a plain reading of the said Section 58 of the Act that it provides for an appeal, but it does not use the word ‘Second Appeal’ as used in Section 100 of the Civil Procedure Code. It only states that the appeal can be filed on any one or more of the grounds specified in Section 100 of the Civil Procedure Code.

7. Now, coming to Section 100 of the Civil Procedure Code, it reads as under: –

“[100. Second appeal. – (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate dec