Muzaffar Rashid Wani v. Registrar, Anantnag and others, wherein a similar preliminary objection was rais

3. The contention of learned counsel for the petitioners is that the seller of the property had signed the document in the presence of marginal witnesses and also accepted the consideration as was prescribed and clarified in the document, which was signed by the respondent. However, at the time of presentation of the document, the seller managed to escape, as such, an application was moved seeking registration of the document by invoking the power under Section 36 of the Registration Act. The said application came to be rejected by means of the order dated 19.03.1988 (Annexure No.2 to the petition). In the said order, it was recorded that the owner has refused to get the document registered. Challenging the said order, an appeal was preferred under Section 73 of the Registration Act, which came to be dismissed by means of the order dated 21.03.2025. Assailing the said two orders, the present writ petition has been filed.

4. Learned counsel for the respondent raises a preliminary objection that a suit is prescribed under Section 77 of the Registration Act against an order of refusal to register and as such, the petitioner cannot avail the present remedy of approaching this Court under Article 226 of the Constitution of India, as such, the petition is liable to be dismissed on the said preliminary objection.

5. Controverting the said preliminary objection, learned counsel for the petitioners places reliance on the judgement of Jammu & Kashmir High Court in Writ-C No.2279 of 2021 decided on

20.05.2022; Muzaffar Rashid Wani Vs. Registrar, Anantnag and others, wherein a similar preliminary objection was raised with regard to the maintainability of suit under Section 77 of the Act. The same was repelled by the following observations in paragraph 24, which is as under:- "24. I would have readily agreed and conceded to the argument of learned counsel for respondent No.3 that against the order of refusal to register a document passed under Section 72 or Section 76 of the Registration Act, the remedy of an aggrieved party lies before the Civil Court under Section 77 of the said Act and would have relegated the petitioner to such remedy. However, I am not doing so for the simple reason that the order impugned passed by the Registrar is neither under Section 72, nor under Section 76 of the Registration Act. It is not under Section 72 of the Act for the reason that that an appeal under Section 72(1) was not maintainable against the order of refusal by sub-Registrar to admit the document to be registered on the ground of refusal by the executant to admit its execution. The order cannot be construed to be one passed by the Registrar under Section 76 of the said Act for the simple reason that he has not followed the procedure laid down under Section 74, 75 and 76 of the Registration Act. The order, as it is, is apparently under no provisions of law. Relegating the petitioner to the remedy of a civil suit when there is no adjudication by the Registrar with regard to the execution of the document in question by respondent No.3 is of no avail and would be a exercise in futility. The Civil Court may be in a position to adjudicate the matter only when there is a refusal by the Registrar to admit the document to be registered after holding an enquiry as envisaged under Section 74 of the Registration Act and returning a finding that the document has not been executed by the person by whom it purports to be executed. Since nothing of the sort has happened in the instant case and the Registrar has not proceeded under Section 73, 74, 75 and 76 of Registration Act and, therefore, the order impugned does not fall either within the ambit of Section 72 as explained above or Section 76 of the said Act. In view of the aforesaid, I do not deem it appropriate to refer to the case law cited before me by learned counsel for respondent No.3 with regard to scope of interference by this Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in a matter where there is a equally efficacious alternative remedy available to the party aggrieved."

6. In light of the said, the submission of learned counsel for the petitioners is that the stand taken by the seller is at huge variance. He further states that in the order dated 19.03.1988, it was wrongly recorded that the seller has refused to get the document registered, whereas in the same order, it was recorded that on notices being issued, the owner did not appear. He further argues that even before the appellate proceedings, stands were taken, which were at variance.

7. In sum and substance, it is proposed to be argued that the manner of the decision making, as can be seen from the order dated 21.03.2025, is wholly arbitrary and illegal. It is further argued that when the initial deed was presented for registration, the land in question fell within the District- Bahraich and the deed was presented before the Sub-Registrar, Bahraich. Subsequently, the new district was carved out being District- Shrawasti and the land in question fell within the Tehsil- Ekauna, District- Shrawasti and thus, only the Registrar exercising jurisdiction over the Tehsil- Ekauna, District- Shrawasti could have decided the appeal under Section 73 of the Act, whereas the appeal in question has been decided by the Registrar, District- Bahraich, which is beyond the jurisdiction.

8. Learned counsel for the petitioner, however, fairly states that no such objection with regard to the jurisdiction was taken before the appellate authority as being argued before this Court. This Court finds that no pleading to that effect exists in the present writ petition. Thus, no argument bereft of pleading, can be entertained to that effect.

9. Be that as it may, the civil suit is specifically prescribed under Section 77 of the Registration Act. It is well settled that the jurisdiction under Article 226 of the Constitution of India is a discretionary jurisdiction. I am unable to follow the judgement of Jammu & Kashmir High Court for the simple reason that in the present case, the procedure has been followed while passing the order impugned and also considering the fact that the deed for which the registration is sought is of the year 1988, I do not see any reason to exercise my discretionary jurisdiction after a long time. The petitioner is relegated to prefer the alternative remedy of suit, if so advised, in accordance with law.

10. The petition stands disposed of. Order Date :- 17.4.2025 Ashutosh ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench

3. The contention of learned counsel for the petitioners is that the seller of the property had signed the document in the presence of marginal witnesses and also accepted the consideration as was prescribed and clarified in the document, which was signed by the respondent. However, at the time of presentation of the document, the seller managed to escape, as such, an application was moved seeking registration of the document by invoking the power under Section 36 of the Registration Act. The said application came to be rejected by means of the order dated 19.03.1988 (Annexure No.2 to the petition). In the said order, it was recorded that the owner has refused to get the document registered. Challenging the said order, an appeal was preferred under Section 73 of the Registration Act, which came to be dismissed by means of the order dated 21.03.2025. Assailing the said two orders, the present writ petition has been filed.

4. Learned counsel for the respondent raises a preliminary objection that a suit is prescribed under Section 77 of the Registration Act against an order of refusal to register and as such, the petitioner cannot avail the present remedy of approaching this Court under Article 226 of the Constitution of India, as such, the petition is liable to be dismissed on the said preliminary objection.

5. Controverting the said preliminary objection, learned counsel for the petitioners places reliance on the judgement of Jammu & Kashmir High Court in Writ-C No.2279 of 2021 decided on

20.05.2022; Muzaffar Rashid Wani Vs. Registrar, Anantnag and others, wherein a similar preliminary objection was raised with regard to the maintainability of suit under Section 77 of the Act. The same was repelled by the following observations in paragraph 24, which is as under:- "24. I would have readily agreed and conceded to the argument of learned counsel for respondent No.3 that against the order of refusal to register a document passed under Section 72 or Section 76 of the Registration Act, the remedy of an aggrieved party lies before the Civil Court under Section 77 of the said Act and would have relegated the petitioner to such remedy. However, I am not doing so for the simple reason that the order impugned passed by the Registrar is neither under Section 72, nor under Section 76 of the Registration Act. It is not under Section 72 of the Act for the reason that that an appeal under Section 72(1) was not maintainable against the order of refusal by sub-Registrar to admit the document to be registered on the ground of refusal by the executant to admit its execution. The order cannot be construed to be one passed by the Registrar under Section 76 of the said Act for the simple reason that he has not followed the procedure laid down under Section 74, 75 and 76 of the Registration Act. The order, as it is, is apparently under no provisions of law. Relegating the petitioner to the remedy of a civil suit when there is no adjudication by the Registrar with regard to the execution of the document in question by respondent No.3 is of no avail and would be a exercise in futility. The Civil Court may be in a position to adjudicate the matter only when there is a refusal by the Registrar to admit the document to be registered after holding an enquiry as envisaged under Section 74 of the Registration Act and returning a finding that the document has not been executed by the person by whom it purports to be executed. Since nothing of the sort has happened in the instant case and the Registrar has not proceeded under Section 73, 74, 75 and 76 of Registration Act and, therefore, the order impugned does not fall either within the ambit of Section 72 as explained above or Section 76 of the said Act. In view of the aforesaid, I do not deem it appropriate to refer to the case law cited before me by learned counsel for respondent No.3 with regard to scope of interference by this Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in a matter where there is a equally efficacious alternative remedy available to the party aggrieved."

6. In light of the said, the submission of learned counsel for the petitioners is that the stand taken by the seller is at huge variance. He further states that in the order dated 19.03.1988, it was wrongly recorded that the seller has refused to get the document registered, whereas in the same order, it was recorded that on notices being issued, the owner did not appear. He further argues that even before the appellate proceedings, stands were taken, which were at variance.

7. In sum and substance, it is proposed to be argued that the manner of the decision making, as can be seen from the order dated 21.03.2025, is wholly arbitrary and illegal. It is further argued that when the initial deed was presented for registration, the land in question fell within the District- Bahraich and the deed was presented before the Sub-Registrar, Bahraich. Subsequently, the new district was carved out being District- Shrawasti and the land in question fell within the Tehsil- Ekauna, District- Shrawasti and thus, only the Registrar exercising jurisdiction over the Tehsil- Ekauna, District- Shrawasti could have decided the appeal under Section 73 of the Act, whereas the appeal in question has been decided by the Registrar, District- Bahraich, which is beyond the jurisdiction.

8. Learned counsel for the petitioner, however, fairly states that no such objection with regard to the jurisdiction was taken before the appellate authority as being argued before this Court. This Court finds that no pleading to that effect exists in the present writ petition. Thus, no argument bereft of pleading, can be entertained to that effect.

9. Be that as it may, the civil suit is specifically prescribed under Section 77 of the Registration Act. It is well settled that the jurisdiction under Article 226 of the Constitution of India is a discretionary jurisdiction. I am unable to follow the judgement of Jammu & Kashmir High Court for the simple reason that in the present case, the procedure has been followed while passing the order impugned and also considering the fact that the deed for which the registration is sought is of the year 1988, I do not see any reason to exercise my discretionary jurisdiction after a long time. The petitioner is relegated to prefer the alternative remedy of suit, if so advised, in accordance with law.

10. The petition stands disposed of. Order Date :- 17.4.2025 Ashutosh ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench