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2020 DIGILAW 428 (RAJ)

Pratap Singh v. Padamsingh

2020-02-27

ARUN BHANSALI

body2020
ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against order dated 27.01.2020 passed by the trial court, whereby, the application filed by the petitioner questioning the admissibility of document in question has been rejected. 2. The respondent-plaintiff filed a suit for specific performance of agreement dated 18.01.2014. 3. The suit was contested by the petitioner-defendant. 4. Based on the averments of the parties, the trial court framed four issues. 5. Whereafter an application was filed by the defendant, inter alia, indicating that the document in question, which is the basis of the suit is not sufficiently stamped and is unregistered and, therefore, the same is not admissible in evidence and, therefore, the order in this regard be passed. 6. Based on the submissions, on 05.07.2019 the trial court came to the conclusion that the document was insufficiently stamped and ordered for impounding of the same and forwarded the same to the Collector (Stamp) for proceeding in accordance with law. 7. Whereafter, another application was filed by the defendant, inter alia, indicating that as the document has not been registered, the same cannot be marked as exhibit. 8. The application was resisted by the plaintiff with the submissions that pursuant to the order dated 05.07.2019 the plaintiff has complied with the directions and after removing the deficiency of the stamp duty, the document has been produced, the same can now be marked as exhibit. 9. After hearing the parties, the trial court came to the conclusion that as the suit pertains to specific performance of contract, it was in the interest of justice to permit marking of the exhibit. 10. Learned counsel for the petitioner made submissions that the trial court was not justified in rejecting the application filed by the petitioner. 11. Submissions have been made that the document in question is compulsorily registrable under Section 17(1)(f) of the Registration Act, 1908 ('the Act') and in view of provisions of Section 49 of the Act, the compulsorily registrable document in absence of registration cannot be marked as exhibit. 12. 11. Submissions have been made that the document in question is compulsorily registrable under Section 17(1)(f) of the Registration Act, 1908 ('the Act') and in view of provisions of Section 49 of the Act, the compulsorily registrable document in absence of registration cannot be marked as exhibit. 12. With regard to the proviso to Section 49 of the Act submission was made that the said proviso applies to reception as evidence of a contract in a suit for specific performance and for an agreement to be termed as a contract, it is necessary that it must be registered in view of provisions of Section 10 of the Contract Act, 1872 and as the document though compulsorily registrable is not registered, the proviso to Section 49 of the Act would not come into picture. It was prayed that the order impugned deserves to be quashed and set aside. 13. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 14. The facts are not in dispute, whereby on a combined application filed by the petitioner raising objection, the document in question being insufficiently stamped and unregistered was previously decided by the trial court on 05.07.2019, whereby, relying on the judgment of this Court in Abdul Raheem v. Smt. Kherun S.B.C.W.P. No. 11523/2012, decided on 13.08.2012 it was observed that the document on being sufficiently stamped can be exhibited, passed the order for impounding of the same and sent the same to the Sub-Registrar whereafter the document has been duly stamped, when again the application on account of the document being unregistered has been filed. 15. The proviso to Section 49 of the Act is very clear, which reads as under:- "49. Effect of non-registration of documents required to be registered.- (a) -------------- (b) -------------- (c) --------------- Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 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 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument." (4 of 4) [CW-2324/2020] 16. The above provision is by way of exception to the general provision that no document required by Section 17 to be registered shall be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. 17. Once the proviso provides for an exception to the main provision, inter aha, in a suit for specific performance, the innovative argument sought to be made by counsel for the petitioner seeking to distinguish the case of an agreement by claiming that the proviso applies to a contract only and for a contract being valid it must be registered, apparently has no substance. If the said submission based on second part of Section 10 of the Contract Act was to be accepted, the same would render the provisions of proviso to Section 49 otiose. 18. The Registration Act being a later Act to that of Contract Act would even otherwise prevail qua the provisions. In view thereof, no case for interference is made out in the order impugned, which is in consonance with provisions of proviso to Section 49 of the Registration Act. 19. Consequently, there is no substance in the writ petition, the same is, therefore, dismissed.