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2017 DIGILAW 475 (RAJ)

Santosh Kumar S/o Het Ram v. Pushpa W/o Jagdish

2017-02-09

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. 1. This appeal is directed against the judgment dated 22.12.2016 passed by the trial court, whereby the trial court has rejected the application filed by the appellant seeking temporary injunction. 2. The suit was filed by the appellant seeking specific performance of agreement dated 14.5.2015. 3. Along with the suit, an application under Order 39, Rule 1 & 2 CPC was filed. 4. In reply to the application seeking injunction, it was interalia claimed by the respondents that the agreement in question was unregistered and therefore, the same did not create any right in favour of the appellant. Further submissions were made that the document was forged/back dated and that the appellant and Smt. Pushpa are related to each other as son-in-law/mother-inlaw and therefore, both are hand with glove and therefore, the application deserves to be dismissed. 5. The trial court after hearing the parties, while considering the issue of prima facie case, without going into the other aspects of the matter, came to the conclusion that as the agreement in favour of the appellant was unregistered and the sale deed in favour of the respondents was a registered document there was no prima facie case in favour of the appellant. The trial court did not deal with any of the other aspects raised by the respondents in the reply. 6. Learned counsel for the appellant submits that the trial court committed error in rejecting the application filed by the appellant on the ground that the document in question was unregistered. It is submitted that despite document being unregistered, it cannot be said that the appellant is not entitled to grant of injunction on merits. 7. Learned counsel appearing for the respondents supported the order impugned. It was submitted that the document besides being unregistered is forged and the same has been created just to deprive the respondents of their property, which has already been transferred by mother-in-law of the appellant and therefore, the appeal deserves to be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. It is no doubt true that under the provisions of Section 17(1)(f) of the Registration Act, 1908 ('the Act'), the document in question is compulsorily register able. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. It is no doubt true that under the provisions of Section 17(1)(f) of the Registration Act, 1908 ('the Act'), the document in question is compulsorily register able. However, the trial court did not consider the provisions of proviso to Section 49 of the Act, which specifically provides that an unregistered document effecting immovable property and required by the Registration Act 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. 10. In view of specific provision governing the unregistered document for maintaining a suit for specific performance, the trial court was not justified in coming to the conclusion that no right accrues in favour of the appellant based on the unregistered document. However, as already noticed herein-before, the respondents have raised several other issues also seeking to question the bonafides of the plaintiff and the validity of the document in question, which aspects have not at all been dealt with by the trial court while deciding the issue of prima facie case. 11. In view thereof though the finding recorded by the first appellate court based on the agreement to sale being unregistered cannot be sustained, the matter is required to be remanded back to the trial court for rehearing and deciding the application afresh on merits after taking into consideration all the objections raised by the respondents regarding the document in question as well as other aspects pertaining to grant of injunction. 12. In view of the above, the appeal is allowed, the order dated 22.12.2016 is set-aside, the matter is remanded back to the trial court to rehear and decide the application filed by the appellant under Order 39, Rule 1 & 2 CPC. 13. The parties shall appear before the trial court on 27.2.2017 initially for arguments on application filed by the appellant.