Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3268 of 2013 ====================================================== 1. Rameshwar Ram Son Of Late Tulsi Ram Resident Of A/290, A.G. Colony, Sheikhpura, P.S. Shastri Nagar, Town And District Patna At Present Residing At Shakuntala Niwas , House No. B-108, Jai Prakash Nagar, Near A.G. Colony, P.O. Ashiana Nagar, P.S. Shastri Nagar, Town And District Patna Versus 1. Rama Shankar Prasad Singh Son Of Late Ayodhya Prasad Singh Resident Of Village Shakarwar Tola, P.O. Mokamah Chowk, P.S. Mokamah, District Patna At Present Residing At A/290, A.G. Colony, Sheikhpura, P.S. Shastri Nagar, Town And District Patna .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Anil Kumar For the Respondent/s : Mr. Dhrub Narain, Sr. Advocate & Mr. Binit Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 5 09-09-2013 This application under Article 227 of the Constitution of India has been filed against the order dated 19.01.2013 passed by learned Sub Judge-III, Patna in Title Suit No. 406 of 2008, whereby and whereunder learned Court below has rejected a petition dated 10.4.2012, filed on behalf of the
Legal Reasoning
petitioner who is defendant before the Court below under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) for rejection of plaint. 2 Brief facts relevant for adjudication of the present case are not in dispute. The respondents filed the Title Suit No. 406 of 2008 seeking a decree of specific performance of contract against the petitioner and a direction to execute a registered sale deed in his favour. The case of the respondents was based on the fact that the petitioner and the respondents had entered into an agreement for sale on 14.3.2008. In pursuance thereof, the petitioner had received certain amount by way of part payment of the consideration amount and subsequently the petitioner delivered the possession of the said house to the respondents, plaintiffs. The petitioner, being the defendant in the said suit filed an application under Order VII Rule 11 of the Code mainly on the ground that the said agreement for sale was not registered and therefore, in view of the provisions as contained in Section 17 (1-A) of the Indian Registration Act, such unregistered document had no effect as the said agreement was required to be compulsorily 3 registered.
Legal Reasoning
Learned counsel appearing on behalf of the petitioner has, in support of his submission, placed reliance upon Section 49 of the Registration Act, 1908 to contend that the agreement for sale dated 14.3.2008 has no legal effect nor could be received as evidence of any transaction affecting such property or conferring such power, the document being unregistered. Learned Senior counsel appearing on behalf of the respondents, on the other hand, has submitted that by no stretch of imagination, the suit can be said to be falling within one of the clauses of Order VII Rule 11 of the Code which would have required the Court below to reject the plaint at the very threshold . He further submits, with reference to Proviso to Section 49 of the Registration Act, 1908 that even an unregistered document affecting immovable property, those required to be registered by the Registration Act or the Transfer of Property Act, 1882 may be received as evidence of a contract and 4 such document should be taken as evidence. The short point, on the basis of rival submissions made on behalf of the parties, to be decided in present case is as to whether on the ground that the agreement for sale was not registered, the plaint seeking relief on the basis of such document could be rejected under Order VII Rule 11 of the Code. To decide this question, it would be apt to refer to Order VII Rule 11 of the Code which reads as follows:- “R.11 Rejection of plaint.- The plaint shall be (a) (b) (c) (d) (e) (f) rejected in the following cases: Where it does not disclose a cause of action: the relief Where is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: claimed Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court fails to do so: Where the suit appears from the statement in the plaint to be barred by any law: Where it is not filed in duplicate:) Where the plaintiff fails to comply with the provisions of rule 9 : ) (Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite Stamp papers shall not be extended unless the Court, for reasons to be 5 recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional from correcting the valuation or nature supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff)” Per submission of the learned counsel for the petitioner, the present case fell within the Clause (d) of Order VII Rule 11 of the Code. In my opinion, such submission has been advanced to be rejected as Clause (d) Order VII Rule 11 of the Code deals with a situation where the suit appears, from the statement in the plaint to be barred by any law. Nothing has been pointed out by the learned counsel to demonstrate, from the statement in the plaint to substantiate his plea, that the suit is barred by law so as to attract Clause (d) of Order VII Rule 11 of the Code. Learned counsel for the petitioner has referred to Section 49 of the Registration Act, 1908 as has been mentioned above. Section 49 of the Registration Act, 1908 reads thus:- “49 Effect of non-registration of documents required to be registered.- No document required by Section 17 ( or by any provision of the Transfer of Property Act, 1882) to be registered….) (a) affect any immovable property comprised 6 therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, Unless it has been registered: (Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (***) or as evidence of any collateral transaction not required to be effected by registered instrument)”. From bare reading of Section 49 of the Registration Act, it would appear that it provides that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein. However, proviso to Section 49 lays down that even an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence or a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. Evidently the suit for this reason could not be said to be barred particularly, in view of 7 Proviso to Section 49 of the Registration Act, 1908. In view of the above, I do not find any infirmity in the impugned order. This application is accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-