# Dhiresh Pandey {R.E.R.A.} v. Real Estate Appellate Tribunal U.P. Lucknow & Ors

- **Citation:** (2019) 4 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-23
- **Case number:** Faizabad in Suit No. 105 of 2000
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhiresh-pandey-r-e-r-a-v-real-estate-appellate-tribunal-u-p-lucknow-ors-44921
- **Pages:** 11

## Headnote

A. Civil Law - Real Estate (Regulation and
Development) Act, 2016 Section 44(2) -
read with Uttar Pradesh Real Estate
(Regulation and Development) Rules 2016,
R. 25(2)(a) - Appeal - "a copy of the
direction or order or decision made by the
authority‟ - Annexing „Attested copy‟ must
& not E copy /down loaded copy - on a
conjoint reading of S. 44 (2) with R. 25(2)
& Form (L) it is clear that while filing an
appeal, before Appellate Tribunal, against
the order of the Regulatory Authority, it
should be accompanied by an „attested true
copy‟ of the order, passed by such authority
which is the subject matter of the appeal
(Para 19)

B. Civil Law - Real Estate (Regulation and
Development) Act, 2016 - calculation of the
period of limitation - "is received by the
....... aggrieved person" - Communication of
Order - S. 44 (2) provides for calculation of
the period of limitation from the date the
order
or
decision
of
the
Regulatory
Authority or Adjudicating Officer is received
by the aggrieved person - but no a provision
for communication of the order of the
Regulatory Authority / Adjudicating Officer
- legal position stated by court - As soon as
the
disposal
of
the
proceedings
is
communicated through S.M.S. or e-mail, the
person aggrieved who proposes to file an
appeal should move an application for
obtaining an attested true copy of the order
and thereafter file an appeal accordingly.

C. Condonation of delay - Delay of 3 days
- if the appeal is filed with some delay,
the appellant does not have to explain
each and every day's delay during the
period of limitation - Required to explain
the delay generally, especially from the
date of expiry of limitation - Tribunal
erred in not condoning the delay of
merely three days in filing the Appeal
when the Appellant had shown sufficient
cause indicating that the Appeal was
within time

D. Word & Meaning - Attested true copy
vis-à-vis E copy - Meaning - copy of the
order
uploaded
by
the
Regulatory
Authority bearing his digital signatures
cannot be said to be an attested copy of
that order, as, the attestation is a
subsequent act which is normally made
by another officer or by some officer, by
which he verifies that the copy being
provided to the applicant is a true copy
of the order originally passed on the file

Second Appeal allowed. (E-5)

List of cases cited: -

## Text

4 All. Shailendra Kumar Singh Vs. Smt. Reeta Singh & Anr.
1071
unrealistic for the law not to take notice
of that fact, and it would be harmful to
society and injurious to the interests of
the parties. Where there has been a long
period of continuous separation, it may
fairly be surmised that the matrimonial
bond is beyond repair. The marriage
becomes a fiction, though supported by a
legal tie. By refusing to sever that tie the
law in such cases does not serve the
sanctity of marriage; on the contrary, it
shows scant regard for the feelings and
emotions of the parties.

* * *

85. Undoubtedly, it is the
obligation of the court and all concerned
that the marriage status should, as far as
possible, as long as possible and
whenever possible, be maintained, but
when the marriage is totally dead, in that
event, nothing is gained by trying to keep
the parties tied forever to a marriage
which in fact has ceased to exist. ...

86. In view of the fact that the
parties have been living separately for
more than 10 years and a very large
number of aforementioned criminal and
civil proceedings have been initiated by
the respondent against the appellant and
some proceedings have been initiated by
the appellant against the respondent, the
matrimonial bond between the parties is
beyond repair. A marriage between the
parties is only in name. The marriage has
been wrecked beyond the hope of salvage,
public interest and interest of all
concerned lies in the recognition of the
fact and to declare defunct de jure what is
already defunct de facto."

54. Thus, the legal position which
emerges from the analysis of the entire
case law on the subject referred to
hereinabove is that it is the duty of the
Court to consider and examine while
deciding an issue of divorce whether the
marriage between the parties has broken
down
irretrievably
or
it
is
dead
emotionally and practically and there is
no chance of its being retrieved before
compelling the parties to live with each
other.

55. From the facts of the case, it can
be gathered that the relations between the
parties are sufficiently spoiled and marital
knot between them has completely
shattered, it is in view of the allegations
made by the husband against the wife and
vice versa, as per her own admission, is
living separately since the year 1999 i.e.
wife is living separately for the last two
decades. In the facts of the case, in our
view, no fruitful purpose would be served
in maintaining the matrimonial ties
between the parties. For all the practical
purposes, the marriage between the
parties is dead. In the facts of the case, we
are of the view that the marriage between
the appellant and respondent-Smt. Reeta
Singh has broken down irretrievably,
leaving the Court with no option but to
grant the decree of divorce.

56. For the foregoing reasons, the
appeal is allowed. The order dated
05.09.2012, passed by the Family Court,
Faizabad in Suit No. 105 of 2000
(Shailendra Kumar Singh v. Smt. Reeta
Singh), is set-aside. The decree of divorce
is hereby granted. No order as to costs.
----------

(2019)12 ILR A1071

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2019

BEFORE
THE HON'BLE RAJAN ROY, J.
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
Second Appeal Defective No. 268 of 2018

Dhiresh Pandey {R.E.R.A.} ...Appellant
Versus
Real
Estate Appellate
Tribunal
U.P.
Lucknow & Ors. ...Respondents

Counsel for the Appellant:
Santosh Kumar Shukla

Counsel for the Respondents:
----

A. Civil Law - Real Estate (Regulation and
Development) Act, 2016 Section 44(2) -
read with Uttar Pradesh Real Estate
(Regulation and Development) Rules 2016,
R. 25(2)(a) - Appeal - "a copy of the
direction or order or decision made by the
authority‟ - Annexing „Attested copy‟ must
& not E copy /down loaded copy - on a
conjoint reading of S. 44 (2) with R. 25(2)
& Form (L) it is clear that while filing an
appeal, before Appellate Tribunal, against
the order of the Regulatory Authority, it
should be accompanied by an „attested true
copy‟ of the order, passed by such authority
which is the subject matter of the appeal
(Para 19)

B. Civil Law - Real Estate (Regulation and
Development) Act, 2016 - calculation of the
period of limitation - "is received by the
....... aggrieved person" - Communication of
Order - S. 44 (2) provides for calculation of
the period of limitation from the date the
order
or
decision
of
the
Regulatory
Authority or Adjudicating Officer is received
by the aggrieved person - but no a provision
for communication of the order of the
Regulatory Authority / Adjudicating Officer
- legal position stated by court - As soon as
the
disposal
of
the
proceedings
is
communicated through S.M.S. or e-mail, the
person aggrieved who proposes to file an
appeal should move an application for
obtaining an attested true copy of the order
and thereafter file an appeal accordingly.

C. Condonation of delay - Delay of 3 days
- if the appeal is filed with some delay,
the appellant does not have to explain
each and every day's delay during the
period of limitation - Required to explain
the delay generally, especially from the
date of expiry of limitation - Tribunal
erred in not condoning the delay of
merely three days in filing the Appeal
when the Appellant had shown sufficient
cause indicating that the Appeal was
within time

D. Word & Meaning - Attested true copy
vis-à-vis E copy - Meaning - copy of the
order
uploaded
by
the
Regulatory
Authority bearing his digital signatures
cannot be said to be an attested copy of
that order, as, the attestation is a
subsequent act which is normally made
by another officer or by some officer, by
which he verifies that the copy being
provided to the applicant is a true copy
of the order originally passed on the file

Second Appeal allowed. (E-5)

List of cases cited: -

1. Officer on Special Duty (Land Acquisition)
Vs Shah Manilal Chandulal & ors., (996) 9 SCC
414

2. Benga Behra Vs Briji Kishore Nanda, 2007
(9) SCC 728

3. D.R. Ratnamoorti Vs Ramappa, 2011 (1)
SCC 158,

4. Bipromasz Bipron Trading Ltd. Vs Bharat
Electronics Ltd. 2012 (6) SCC 384

5. Collector, Land Acquisition, Anantnag & anr
Vs Mst. Katiji & ors. 1987 (2) SCC 107

(Delivered by Hon'ble Rajan Roy,J.)

1. This is an appeal under section 58
of the Real Estate (Regulation and
Development) Act, 2016 (hereinafter
referred as 'Act 2016') challenging the
order dated 13.7.2018. This Court vide
order dated 27.9.2018 has found the
appeal
to
be
within
limitation.
4 All. Dhiresh Pandey {R.E.R.A.} Vs. Real Estate Appellate Tribunal U.P., Lucknopw & Ors. 1073

2. Sri Shailendra Singh Chauhan,
Advocate has put in appearance on behalf
of respondent no.2. Sri Inder Preet Singh
Chadha, Advocate has put in appearance
on behalf of opposite party no.3.

3. This appeal was admitted on the
following substantial questions of law
vide order dated 26.3.2019:

"1. Whether the Tribunal
below has not erred in interpreting
section
44(2)
of
the
Real
Estate
(Regulation and Development) Act 2016
so as to come to the conclusion that while
filing an appeal certified copy or attested
copy of the impugned order is not
required to be filed alongwith the appeal
before the Tribunal ?

2. Whether the interpretation
given by the tribunal to Section 44(2) of
the Act would not render Rule 25 of the
Rules and form L appended thereto as
redundant and Otiose ?

3. Whether, the Tribunal has not
erred in not condoning the delay of
merely three days in filing the Appeal
when the Appellant had shown sufficient
cause indicating that the Appeal was
within time."

4. The facts of the case in brief are
that an application was filed by the
appellant
before
the
Real
Estate
Regulatory Authority (R.E.R.A.), which
was
dismissed
on
15.1.2018.
On
18.1.2018 the appellant received an
S.M.S. that the application of the
appellant had been disposed off on
15.1.2018. It is said that the said order
was uploaded on the website of R.E.R.A.
on 18.1.2018. According to the appellant
he went to file the appeal against the
aforesaid order dated 15.1.2018 passed by
R.E.R.A., on 17.3.2018, which was a
Saturday, but, as the office of the
Appellate Authority was closed on the
said date, the counsel returned back. On
19.3.2018 when the appellant's counsel
went to file the appeal, he was informed
that an attested copy of the order dated
15.1.2018 was required necessarily and
the appeal could not be accepted without
the said order. In view of this an attested
copy of the order dated 15.1.2018 was
applied on 19.3.2018 itself and on its
receipt the appeal was filed before the
Real
Estate
Appellate
Tribunal
on
20.3.2018 under section 44 of the Act
2016. As the appeal was delayed by three
days as calculated with effect from
18.1.2018, it was accompanied by an
application for condonation of delay there
being a provision for the same under
section 44 itself. In the said affidavit
delay was explained as aforesaid and in
addition to it it was also stated in
paragraph 7 that the appellant had to visit
daily regularly in connection with his
business and was pursuing the matter
from there, as the appeal had to be filed at
Lucknow. 17th of March 2018 being a
Saturday appeal could not be filed as the
office of the Appellate Tribunal was
closed. When the appellant's counsel went
to file the appeal on 19.3.2018, he was
informed that an attested copy of the
order was required, which was applied on
the same day and was obtained on
20.3.2018
and
appeal
was
filed
accordingly on the said date. It was stated
that the delay in filing the appeal is bona
fide,
unintentional
and
beyond
the
appellant's control and that the appeal be
entertained for adjudication on merits,
otherwise the applicant-appellant would
suffer irreparable injury.

5. R.E.R.A. Appellate Tribunal in its
wisdom dismissed the application of the
appellant for condoning the delay of three
days in filing the appeal.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Contention of the learned counsel for
the appellant is that such a hypertechnical
approach by the Appellate Tribunal is
contrary to the grain of precedents of Supreme
Court and this Court in a catena of decisions.
The approach of the Appellate Tribunal
should have been to advance the cause of
substantial justice rather than to defeat it on
mere delay, especially when the delay was
only of three days and it had been
appropriately explained. Instead of doing so
the Appellate Tribunal undertook a laborious
exercise making every effort to justify the
dismissal of the application for condonation of
delay by passing an order running into eleven
pages with a fault finding attitude. Learned
counsel submitted that this is not the first case
where the Appellate Tribunal, as existing at
that time, passed such order.

7. This Court in a number of
decisions disapproved similar orders
passed by the then Chairman of the Real
Estate Appellate Tribunal, Luckow, Sri
Atul Kumar Gupta, yet, the officer who
was a senior officer of the Higher Judicial
Service continued to pass such orders and
to justify the same by giving the same
reasoning again and again. In this regard
he has referred to a decision dated
7.7.2019 rendered in R.E.R.A. Second
Appeal No.250 of 2018.

8. His contention is that this Court should by
its judgment guide the Appellate Tribunal so that
such flaws are not committed in future and the ends
of substantial justice are not compromised as also
precious time of the Appellate Tribunal, the lawyers
involved and this Court, as also the finances
involved, are not wasted.

9. Sri Chadha, learned counsel for
the opposite party no.3 submitted that he
would not say much, but the delay should
have been explained by the appellant.

10. On a perusal of the judgment
passed by the Appellate Tribunal this
Court finds that the Appellate Tribunal
has laboured very hard to dismiss the
application for condonation of delay of
merely three days and has consequently
dismissed the appeal itself. The reasons
have also been given in great detail. It has
been stated in the impugned judgment,
firstly, that the appeal is delayed by three
days in terms of section 44(2) of the Act
2016. The judgment having been rendered
by R.E.R.A. Authority on 15.1.2018
appeal should have been filed by 16th
March, 2018 when the limitation of 60
days expired.

11.

The
Appellate
Tribunal
disbelieved the contention of the appellant
that on 18.1.2018 he had received an
S.M.S from R.E.R.A. Authority about
disposal of the complaint/application by
observing that the S.M.S. was not
regarding pronouncement of the order, but
it only conveyed that the complaint was
disposed of on 18.1.2018. The Appellate
Tribunal did not accept the S.M.S. as a
message regarding pronouncement of the
order dated 15.1.2019, whatever it meant
by it.

12. The Tribunal found that the
appellant
was
present
before
the
Regulatory Authority on 15.1.2018 and
thus was aware about the impugned order
passed on the said date. It also repelled
the contention that the attested copy of the
order dated 15.1.2018 was received only
on 20.3.2018, in the circumstances
already noticed hereinabove, on the
ground that section 44(2) does not
mention the words "certified copy or
attested copy" but uses the words "a copy
of the direction or order or decision made
by the authority or the adjudicating
4 All. Dhiresh Pandey {R.E.R.A.} Vs. Real Estate Appellate Tribunal U.P., Lucknopw & Ors. 1075
officer." meaning thereby, the Tribunal
was of the view that the order dated
15.1.2018 having been uploaded on
18.01.2018, a downloaded copy of the
said order could have been annexed and
the appeal could have been disposed off
accordingly which would have been in
accordance with Rules as there was no
requirement of annexing a certified or
attested copy of such an order of the
Regularity Authority.

13. The Tribunal has further
observed that the date of communication
of the alleged information about disposal
of case or about impugned order or date
of uploading of the impugned order has
no concern with the commencement of
the period of limitation of sixty days as
provided under section 44(2) of the Act,
meaning thereby, according to him,
limitation of sixty days is to be calculated
with effect from the date the order is
pronounced i.e. 15.01.2018. The Tribunal
has further gone on to state that sending
of certain e-mail or uploading of order has
neither been provided in the provisions of
the Act nor under the U.P. Real Estate
(Regulation and Development) Rules
2016. It has further observed that the
applicant/appellant has not mentioned
anything in para of memo of appeal as
well as the application for condonation of
delay received the official copy of the
impugned order which implied that he had
received the official copy of the impugned
order, without specifying as to when,
according
to
the
Tribunal,
the
appellant/applicant had received the said
order. The Tribunal thereafter gone on to
observe that the date of receipt of official
copy of the order has also not been
mentioned which also implied that he had
received the official copy of the impugned
order on 15.1.2018 itself without the
Tribunal mentioning as to the basis of this
recital/finding. Thereafter the Tribunal
has
observed
that
if
the
appellant/applicant would have mentioned
about non-receipt of official copy of the
order, in that eventuality, the appeal of the
applicant/appellant
would
have been
premature. He has, thus, concluded that
the computation of commencement of the
period of sixty days under the Act in the
said case shall be from 15.1.2018 i.e. the
date
on
which
applicant/appellant
received the official copy of the impugned
order without mentioning as to on what
basis this conclusion has been drawn. No
evidence has been mentioned in the
judgment of the Tribunal to show that the
judgment dated 15.1.2018 was uploaded
on the
website
of the Regulatory
Authority on 15.1.2018 itself. Had it been
so, even then there would have been some
reasonable basis for the recitals contained
in the impugned order. Learned counsel
for the appellant on the other hand
categorically stated that it was uploaded
on 18.1.2018 and this is mentioned on the
requisite upload itself which can be
verified from the official website.

14. The Tribunal has disbelieved the
averments made in para 6 of the
application for condonation of delay
regarding the Tribunal being vacant as
also the assertions about regular visits to
Delhi from Lucknow on account of
professional commitments not being a
justifiable ground for not filing the appeal
within the limitation of sixty days as
prescribed. It has also observed that the
attested copy of the order should also
have been obtained within the period of
sixty days, which was not done, keeping
in view the mandatory requirement of
enclosing such a copy as per Rule
25(2)(a) of the Rules 2016.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The circumstance involving the
filing of an application for rectification
under section 39 of the Act 2016 before
the Regulatory Authority by the appellant
was also brushed aside as not being a
hurdle in filing appeal within the
limitation
prescribed.
The
Tribunal
declined to grant benefit of the time spent
by the appellant in obtaining the attested
copy on the ground that the provisions of
Limitation Act 1963 are not applicable
with reference to the decision of the
Supreme Court of India in the case of
Officer
on
Special
Duty
(Land
Acquisition) v. Shah Manilal Chandulal &
ors., (996) 9 SCC 414. Thus, the cause
shown by the appellant was not found to
be satisfactory and the application for
condonation of delay of three days was
dismissed on the ground that conduct of
the appellant was evidence of prima facie
negligence on his part.

16. Learned Tribunal thereafter
referred to various decisions of the
Supreme Court in support of conclusions
drawn
by
him
and
dismissed
the
application for condonation of delay as
also the appeal as a consequence thereof.

17. The appellant claims to be a
'Consumer/Allottee' within the meaning
of the Act 2016 and the Rules made
thereunder. The Act itself has been
enacted to establish the Real Estate
Regulatory Authority for regulation and
promotion of the Real Estate Sector and
to ensure sale of plot, apartment or
building, as the case may be, for sale of
Real Estate project, in an efficient and
transparent manner and to protect the
interest of Consumer/Allottees in the Real
Estate Sector and to establish adjudicating
mechanism for speedy dispute redressal
and also to establish an Appellate
Tribunal to hear the appeals from
decisions, directions of the Real Estate
Regulatory
Authority
and
the
Adjudicating Officer and for matter
connected therewith or incidental thereto
as is evident from long title/preamble of
the Act 2016.

18. Every authority including the
Appellate Tribunal under the Act 2016 should
function to advance the object of the Act
2016, and not to frustrate it. Coming to the
substantial questions of law on which the
appeal has been admitted, as regards the first
question, an appeal against the order of the
Regulatory Authority lies before the Appellate
Tribunal under section 44 of the Act 2016. As
per sub-section (2) of section 44 every appeal
made under sub-section (1) thereof shall be
preferred within a period of 60 days "from
the date on which a copy of the direction or
order or decision made by the Authority or
the Adjudicating Officer is received by the
appropriate government or the competent
authority or the aggrieved person" and it
shall be in such form and accompanied by
such fee as may be prescribed; provided that
the Appellate Tribunal may entertain an
appeal after the expiry of sixty days if it is
satisfied that there was sufficient cause for not
filing it within that period. Sub-section (2) of
section 44 thus prescribes a limitation for
filing such appeal which is sixty days. This
period of limitation is to be calculated from
the date on which a copy of the direction or
order
or
decision
of
the
concerned
authority/officer is received. The provision
further provides that the appeal shall be in
such form and accompanied by such fee as
may be prescribed.

19. Now as regards the form and the
fee prescribed we need to refer to the
Uttar Pradesh Real Estate (Regulation and
Development) Rules 2016 which have
4 All. Dhiresh Pandey {R.E.R.A.} Vs. Real Estate Appellate Tribunal U.P., Lucknopw & Ors. 1077
been made under section 84 of the Act
2016 and have come into effect from 27th
October 2016 i.e. the date on which it was
notified in the Gazettee. The provision
with regard to filing of appeal before the
Appellate Tribunal under section 44 is
contained in Rule 25. Sub-Rule (2) of
Rule 25 provides that every appeal shall
be filed in Form (L) alongwith "an
attested true copy of the order against
which the appeal is filed" Form (L) is
given at the end of Rules 2016 and
according to Serial No. 10 of the Format
under the heading "List of enclosures"
one of the enclosures mentioned at (i) is
"an attested true copy of the order
against which the appeal is filed". Thus
on a conjoint reading of sub-section (2) of
section 44 with sub-Rule (2) of Rule 25
and Form (L) what comes out is that the
appeal against the order of the Regulatory
Authority should be accompanied by an
attested true copy of the order passed by
such authority which is the subject matter
of the appeal, therefore, on a harmonious
reading of the aforesaid provisions,
especially in view of the words occurring
in sub-section (2) of section 44 "it shall be
in such format" as may be prescribed. The
provisions contained in Rule 25 and Form
(L) have to be read into the provisions
contained in sub-section (2) of section 44,
as part of it, because the Rules are in
furtherance of the provisions contained in
section 44.

20. In this view of the matter, for the
Appellate Tribunal to have observed in
the initial part of its discussion on the
application for condonation of delay that
there is no such requirement of filing an
attested or certified copy of the order
under challenge in appeal, is based on an
absolute
misreading
and
misunderstanding of the provisions of the
Act 2016 and the Rules made thereunder.
The copy of the order uploaded by the
Regulatory Authority bearing his digital
signatures cannot be said to be an attested
copy of that order, as, the attestation is a
subsequent act which is normally made by
another officer or by some officer, by
which he verifies that the copy being
provided to the applicant is a true copy of
the order originally passed on the file.
Even in the High Court when we pass
orders in judicial proceedings, they are
uploaded by our Private Secretaries, but if
a litigant or any other person downloads a
copy of said order which is not attested or
certified, then it would at best be an ecopy of said order, whereas there are
separate Rules in the High Court for
providing attested/certified copies of such
orders which are on the original records
of the case and the attestation/certification
is made by a separate section headed by
an Officer Incharge who does the
attestation or certification. The word
'Attest' occurring in sub-Rule (2) of the
Rule 25 and Form (L), has been defined
in Black's Law Dictionary (9th Edition) to
mean (1) to bear witness, testify (2) to
affirm to be true or genuine, to
authenticate by signing as a witness.
When this Court peruses the attested copy
applied for by the appellant on 19.3.2019
and which was provided to him by the
office of the Regulatory Authority, it
finds that the order passed by the
Authority has been duly attested by the
Additional Statistical Officer, U.P. Real
Estate Regulatory Authority Lucknow
with his signature and date alongwith seal
embossed thereon It is such attested copy
of an order that has to accompany the
appeal to be filed by the appellant under
section 44, thus, the finding of the
Appellate Tribunal to the contrary is
absolutely contrary to the requirement of
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
law and is perverse. Filing of such an
attested copy of the order is the
requirement of the Act 2016 read with the
Rules. Interestingly in the latter part of the
discussion the Appellate Tribunal itself
has referred to Rule 25(2)(a) and Form
(L) as being a mandatory requirement
where it has held that this attested true
copy could have been obtained by the
appellant within sixty days of limitation
prescribed, but was not done, yet, in the
earlier part of the discussion a contrary
view has been expressed which is not
tenable.

21. The word 'Attest' came up for
consideration before the Supreme Court
in the case of Benga Behra v. Briji
Kishore Nanda, 2007 (9) SCC 728
wherein it was observed - "to attest is to
bear witness to a fact". This was in the
context of the provisions of the Transfer
of Property Act 1882 and the Registration
Act 1908. The word 'Attest' also came up
for consideration by the Supreme Court in
D.R. Ratnamoorti v. Ramappa, 2011 (1)
SCC 158, wherein it was observed that
attestation
testifies/certifies
the
genuineness of the document. Execution
is different from attestation, one following
the other, attestation after execution.

22. Reference may be made in this
regard to the decision of the Supreme
Court reported in 2012 (6) SCC 384,
Bipromasz Bipron Trading Ltd. V. Bharat
Electronics Ltd., wherein the distinction
between dispatch and delivery was
considered in the context of section 3(2)
of the Arbitration and Conciliation Act
1996 which provided that communication
is deemed to have been received on the
day it is so delivered. The Court after
considering the said provision and the law
with regard to the time of effectiveness of
an order observed in the context of the
said case that an order passed by an
Authority cannot be said to take effect
unless the same is communicated to the
party affected. The Court finds that in the
Act and the Rules there is an anomaly in
the sense that sub-section (2) of section
44 provides for calculation of the period
of limitation from the date the order or
decision of the Regulatory Authority or
Adjudicating Officer is received, inter
alia, by the aggrieved person, but there is
no a provision for communication of the
order of the Regulatory Authority or the
Adjudicating Officer in this regard,
though there is such provision in the
context of the orders and decisions by the
Appellate Tribunal under section 44. This
anomaly needs to be removed by making
specific provision for communication,
only then, sub-section (2) of section 44
would be applied meaningfully and
effectively. Till then, the legal position is
as already noticed hereinabove, meaning
thereby, as soon as the disposal of the
proceedings is communicated through
S.M.S. or e-mail, as the case may be, the
person aggrieved who proposes to file an
appeal should move an application for
obtaining an attested true copy of the
order and thereafter file an appeal
accordingly. Question No.1 is answered
accordingly.

23. As regards Question No.2, in
view of the discussion already made in
the context of Question No.1 if the
interpretation given by the Tribunal to
section 44(2) of the Act 2016 regarding
non-requirement of an attested true copy
of the order, which is the subject matter of
challenge in appeal, accompanying the
appeal, then certainly it would be in
conflict with Rule 25 and Form (L)
referred therein and would render the
4 All. Dhiresh Pandey {R.E.R.A.} Vs. Real Estate Appellate Tribunal U.P., Lucknopw & Ors. 1079
latter provisions otios, therefore, the
reading
and
understanding
of
the
provisions of law involved as evinced in
the
Appellate
Tribunal's
order
is
unacceptable and disapproved. Question
No.2 is answered, accordingly.

24. As regards Question No.3, this
Court is compelled to say that the amount
of effort made by the Appellate Tribunal
in
rejecting
the
application
for
condonation of delay of merely three days
was quite unnecessary and uncalled for.

25. On a perusal of the affidavit in
support of the application for condonation
of delay, this Court finds plausible and
satisfactory explanation for the same. No
prudent person in the facts of the present
case could have dismissed the application
for condonation of delay of three days. It
is well settled that if the appeal is filed
with some delay, the appellant does not
have to explain each and every day's
delay during the period of limitation. He
is required to explain the delay generally,
especially from the date of expiry of
limitation. Reference may be made in this
regard to the decision of the Supreme
Court in the case of Collector, Land
Acquisition, Anantnag & anr. v. Mst.
Katiji & ors. reported in 1987 (2) SCC
107. A hyper technical approach in a
matter involving a delay of barely three
days was quite unwarranted. Reference to
catena of decisions by the Appellate
Tribunal without appreciating the factual
matrix of the case and the explanation
offered has merely burdened its judgment.
The explanation given by the appellant in
the affidavit constituted a sufficient cause,
but the Tribunal failed to appreciate the
same in the correct perspective. It did not
adopt a judicious approach in the matter
with the result that the ends of substantial
justice
have
been
defeated
and
technicalities have prevailed without any
justification. In the affidavit it was stated
that on account of engagement with his
professional duties the appellant could not
prefer the appeal earlier; his counsel went
to file the appeal on 17.3.2018 which was
within the period of limitation. Even if the
S.M.S. sent to the appellant on 18.1.2018
intimating him about the disposal of his
application
on
15.1.2018
was
communicated to him, as according to
sub-section (2) of section 44 the limitation
of sixty days is to be calculated from the
date on which a copy of the direction or
order or decision made by the concerned
authority "is received by the .......
aggrieved
person",
therefore,
this
provision pre-supposes a communication
of the order by the Regulatory Authority
to the aggrieved person.

26. It appears that though that there
is no provision in the Rules, but, there is a
practise in the office of the Regulatory
Authority of communicating the disposal
of
the
application/complaint
to
the
concerned parties through S.M.S. or email. Now this S.M.S. or e-mail does not
contain the attested true copy of the order,
but as noticed by the Appellate Tribunal
itself it is only a communication about
disposal of the application/complaint.
Even where e-mails are sent, a copy of the
order uploaded on the website bearing the
digital signature of the Authority which
has passed the order, is sent, which, as
already noticed hereinabove, is not an
attested copy, as, the attestation has to be
subsequent to the act of signing of the
said order by the Adjudicating Officer or
the Regulatory Officer, as the case may
be, while passing the order. It is only on
receipt of such communication that an
aggrieved person would apply before the
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned authority for obtaining an
attested true copy of the order in respect
of which he or she proposes to file an
appeal and on receipt of such an order the
appeal can be filed.

27. It is true that once the
communication had been received by the
appellant about the disposal of the
application/complaint and he in fact was
present as per his own admission on
15.1.2018 when the Regulatory Authority,
then he could have applied for the attested
true copy of the order within the period of
sixty days. In fact he should have as he is
presumed to know the requirement of
limitation for filing an appeal, but as
already stated hereinabove, in the facts of
the present case, even if he did not do so
and applied for such a copy a day
thereafter i.e. on 19.3.2019 which was
provided to him on 20th March, 2019,
then considering the explanation offered
in the affidavit in support of the
application for condonation of delay, the
cause shown was sufficient, especially
considering the delay which was only of
three days. The cause of substantial
justice
should
have
prevailed.
As
observed by the Supreme Court the
Courts do not put a premium on a
decision by default, but on merits,
therefore, in the facts of the present case
the Appellate Tribunal erred in not
condoning the delay in filing the appeal,
thereby causing grave prejudice to his
rights and materially affecting the same.
Question No.3 is answered accordingly.

28. The learned Tribunal also
adopted a hyper technical approach in
declining to grant the benefit of the time
taken by the Regulatory Authority in
processing the application of the appellant
for grant of attested true copy of the order
of the Regulatory Authority by deducting
it for the purposes of calculation of
limitation
on
the
ground
that
the
provisions of the Act 1963 do not apply.
Even if they did not apply, such period
should normally be excluded on first
principle,
as
after
filing
such
an
application the God is with the concerned
Court or Tribunal or Authority and it is
not in the hands of the applicant to ensure
that the attested copy is provided at the
earliest.

29. It would be better if the Rule
Making Authority makes a provision for
sending an attested true copy of the order
passed
by
the
Regulatory
Authority/Adjudicating Officer under the
provisions of the Act 2016. In view of the
terminology used in sub-section (2) of
section 44 read with Rule 25(2) and Form
L for filing an appeal as in view of the
analogy used in sub-section (2) of section
44. There appears to be an implicit
application on the said authority/officer to
communicate. Orders and the limitation is
to b calculated from the receipt of such
attested true copy of the order. Although
in the facts of this case it has been held
that the appellant should have applied
attested true copy from the date of
communication received through SMS but
it would be better if the attested true copy
of the order itself is communicated to the
concerned parties in the proceedings as
then the receipt of the order for the
purpose of Sub-Section 2 of Section 44
would not be at the sweet will of the
aggrieved person. This anomaly needs to
be ironed out by the Rule Making
Authority.

30. In view of the above discussion,
the impugned judgment of the Appellate
Tribunal dated 13.7.2018 passed in
Miscellaneous
Case
No.9
of
2018,
4 All. Ashok Kumar Sharma Vs. Smt. Beena Sharma & Ors.
1081
Dhiresh Pandey v. M/s Supertech Ltd., is
hereby quashed. The appeal under
section 58 of the Act 2016 is accordingly
allowed. The delay in filing the first
appeal under section 44 of the Act 2016 is
hereby condoned. The Miscellaneous
Case No.9 of 2018, Dhiresh Pandey v.
M/s Supertech Ltd., is allowed. The First
Appeal shall now be processed by the
Appellate Tribunal accordingly and it
shall be decided in accordance with law.

31. The Senior Registrar of this
Court shall send a copy of this judgment
to the Chairman, Uttar Pradesh Real
Estate Appeal Tribunal, Lucknow for
necessary action.
----------
(2019)12 ILR A1081

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Recall Application No. 107325 of 2017 in
Second Appeal No. 313 of 2017

Ashok Kumar Sharma ...Appellant
Versus
Smt. Beena Sharma & Ors....Respondents

Counsel for the Appellant:
Sri Raj Kumar Kesari, Sri Raj Kumar

Counsel for the Respondents:
Sri Ashish Kumar Singh

Civil Law - Civil Procedure Code (5 of
1908) - Order 43, Rule 1(u), Rule 23 A -
Appeal against order of Remand -
Tenability
-
Second
Appeal
is
not
maintainable against the remand order.

Second Appeal dismissed. (E-5)
List of cases cited: -

1. Jegannathan Vs Raju Sigamani and another
(2012) 5 SCC 540

2. Narayanan Vs Kumaran and others (2004) 4
SCC 26

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel,J.)

1. This recall application has been
moved by the defendant-respondent no. 1
for recall of the order dated 07th March,
2017, whereby this Court has admitted the
second appeal, issued notices to the
respondents and granted interim order.
The recall application has been filed on
the ground that the second appeal is not
maintainable against a remand order in
view of the provisions of Order XLIII
Rule 1 (u) of the Code of Civil Procedure,
19081.

2. The plaintiff-appellant had
instituted a civil suit in the Court of the
Civil Judge, Senior Division, Hapur,
which was registered as O.S. No. 66 of
2008, Ashok Kumar Sharma v. Smt.
Rameshwari and others, for permanent
injunction restraining the defendants from
interfering in his possession over the suit
property and to declare the sale-deed
dated 10th December, 2007 as void and
non est. The defendants contested the
matter and the plaintiff's suit was decreed
vide judgment and decree dated 09th
March, 2016. Aggrieved by the said
judgment and decree of the trial Court, the
defendant-respondent no. 1 preferred a
civil appeal, being Civil Appeal No. 29 of
2016, Smt. Beena Sharma v. Ashok
Sharma and others, which was allowed by
the lower appellate Court vide its
judgment
and
decree
dated
02nd
February, 2017 and the judgment and