Patna High Court
Ramautar Sah And Anr. vs The State Of Bihar And Ors. on 28 April, 1977
Equivalent citations: AIR1977PAT295, 1977(25)BLJR530, AIR 1977 PATNA 295
JUDGMENT S.K. Jha, J.
1. Bamautar Sah is the petitioner in Civil Writ Jurisdiction Case No. 532 of 1974, while Sukan Sah is the petitioner in Civil Writ Jurisdiction Case No. 533 of 1974. In both these applications under Articles 226 and 227 of the Constitution of India, respondent No. 4 is one Sri Deep Singh. The District Sub-Registrar, Registration Office, Sitamarhi, and the Sub-Registrar, Registration Office. Bhutahi, are respondents 2 and 3 respectively in each of the applications. The petitioners have prayed for the issuance of an appropriate writ quashing the order dated the 11th January, 1974, passed by respondent No. 2 rejecting the applications of the petitioners filed under Section 73 of the Indian Registration Act (Act XVI of 1908} (hereinafter referred to as 'the Act') on the ground of limitation. The facts in both the cases are identical.
2. On the 20th April, 1973, respondent No. 4 Deep Singh executed two sale deeds, one in favour of Ramautar Sah and the other in favour of Sukan Sah. It is said that the deeds were duly attested by the witnesses; but as it had become late they could not 'be presented for registration on that date. Subsequently, however, respondent No, 4 with some ulterior motive was not willing to present the documents for registration and admit execution. On the 8th August, 1973, the petitioners of each of these two cases filed separate applications before respondent No. 3 for compulsory registration of the documents in question. A notice thereof was sent to respondent No. 4, and, in spite of service of notice he did not appear before the Sub-Registrar. Ultimately, an order was passed by respondent No. 3 on the 11th December, 1973 refusing to register the documents on the ground that respondent No. 4 had not admitted the execution of the documents in question by his non-appearance. This order was communicated to the petitioners four days later. The petitioners thereafter claimed to have filed an application for a certified copy of the order dated the 11th December, 1973 passed by respondent No. 3. Such a copy was made" available to the petitioners a day or two later. On the 11th January, 1974, the petitioners filed applications under Section 73 of the Act before the District Sub-Registrar (respondent No. 2). On that very date, both the applications were rejected in limine as being barred by limitation counting from the date of the order, namely, 11th December, 1973. It is these orders of the District Sub-Registrar dated the 11th January, 1974 which have been impugned in the two applications.
3. It was argued by learned counsel for the petitioners that the District Sub-Registrar had committed an error of law in holding that the applications filed by the petitioners in the two cases were barred by limitation. Two reasons were advanced for such submission. It was contended in the first instance that the provisions of Section 12 of the Limitation Act ought to have been taken into consideration and the time spent in obtaining the copy of the orders of respondent No. 3 ought to have been deducted in computing the requisite period of thirty days which is prescribed as the period of limitation in Section 73 of the Act, It was next submitted that respondent No. 2 had failed to appreciate that the orders passed by respondent No. 3 on the 11th December, 1973 were communicated to the petitioners four days later. The orders had not been passed in the presence of the petitioners, nor had the petitioners been given any notice or had any knowledge with regard to the date on which the order was to be passed. In such circumstances, it was contended that the period of limitation would begin to run from the date when the order was communicated to the petitioners; and, computed from that date, there could not be any question of limitation. I think there is sufficient force in the contention of the learned counsel for the petitioners that the impugned orders as contained in Annexure 2 in each of the applications suffer from an error of law.
4. Whatever may be the position with regard to the first point raised on behalf of the petitioners, namely, the applicability of Section 12 of the Limitation Act, which I do not feel inclined to go into in this case, the second submission of the learned counsel does impress me as being of much substance. There is a distinction between two types of cases, namely, a case in which the Sub-Registrar has passed the order of refusal either in presence of the party-applicant or on a date of which the party had no (sic) notice or knowledge and the other type of cases in which an order is passed in the absence of the party-applicant without his knowledge and without there being any notice to him of the date of passing such an order. In the latter type of cases, it has been uniformly held that time begins to run from the date the order is communicated to the party. Without multiplying decisions on the point, it is sufficient to refer to the decisions of the Bombay High Court in Abdul Ali Abdul Husen v. Mirja Khan Abdul Husen ((1904) ILR 28 Bom 8) and of the Madras High Court in Swaminathan v. Lakshmanan Chettiar (AIR 1930 Mad 490). As already stated earlier, the petitioners had filed their applications before respondent No. 3 on the 8th August, 1973. Thereafter, notices were sent to respondent No. 4. There was no intimation to the petitioners with regard to the date when the order was to be passed by respondent No. 3. In such a situation, the relevant date for the purpose of forming the starting point of limitation would be the date when the order dated the 11th December, 1973 was communicated to the petitioners. If the matter were to rest at that, well and good for the petitioners.
5. There is, however, an insurmountable difficulty in the way of the petitioners which, in my view, precludes this court from giving any relief to the petitioners. Mr. Madhup, learned counsel for a subsequent transferee from Deep Singh (respondent No. 4), moved an application under Order 1, Rule 10 of the Code of Civil Procedure for the subsequent transferee to be made a party to the.se applications. We, however, did not think it necessary to add him as a respondent to the instant applications but heard Mr. Madhup in view of the proviso to R, 5, Chap. XXIC of the Patna High Court Rules. It was contended by Mr. Madhup that in view of Clause (3) of Article 226 as it stands after the Constitution (Forty-second Amendment) Act, 1976, these applications ought to be held to have abated in view of Section 58 of the Amendment Act aforesaid. The submission was that there was a statutory remedy provided for the redress of such injury, as the petitioners complained of in Section 77 of the Act. The injury complained of being referable to Sub-clause (b) or Sub-clause (c) of Clause (1) of Article 226, Clause (3) of that Article was an absolute bar to the maintainability of these applications. For the reasons to be given hereinafter, I think there is much force in this argument.
6. The Act provides for an appeal to the Registrar under Section 72 from the orders of the Sub-Registrar refusing registration on a ground other than the denial of execution. Under that section, the appellate order may direct registration to be made or refuse registration of the document. Section 73 of the Act provides for an application to be made to the Registrar where the Sub-Registrar refuses to register on the ground of denial of execution. It is further laid down in Section 73 that such an application must be filed within thirty days after the making of the order of refusal by the Sub-Registrar, Section 75 of the Act lays down that on the application filed under Section 73, the Registrar may order registration - and the procedure to be followed thereon has also been laid down in that section. Section 76 of the Act, however, speaks of order of refusal by the Registrar in respect of both an appeal under Section 72 and an application under Section 75. Section 77 thereafter provides for institution of a suit within thirty days of the order of refusal by the Registrar both under Section 72 and Section 76 of the Act. It was argued on behalf of the petitioners that Section 76 of the Act should not be held to apply to cases where registration has been refused, not after any enquiry as contemplated by Section 74 or Section 75. It was contended that an order refusing to entertain an application filed under Section 73 of the Act on the ground that it was barred by limitation could not be said to be an order of refusal within the meaning of Section 76 as envisaged by Section 77 of the Act. The Full Bench decision of the Allahabad High Court in Udit Upadhia v. Imam Bandi Bibi, ((1902) ILR 24 All 402) (FB) was relied upon for such a proposition. In that case Bur-kitt, J., who had in the first instance sitting in Division Bench differed with Stanley, C. J., has held at page 405 of the report that the right to sue given by Section 77 of the Act arises when the Registrar, on an application complying with all the provisions of the second and third paragraphs of Section 73 of the Act having been presented to him, has upheld the order of the Sub-Registrar and has refused to direct the document to be registered. One of the conditions precedent to the presentation and admission of an application under Section 73 of the Act, as laid down in the second paragraph of that section, is that the application must be made within thirty days from the date of the order of refusal by the Sub-Registrar. "When then an application purporting to be an application under Section 73 of the Act is presented to the Registrar after the expiration of the thirty days limited by that section, such an application is not, in my opinion, an application which could be entertained under that section, and the summary rejection of such an application, on the ground that it was put in beyond time (as happened in the present case) cannot be considered to be a refusal under Section 76 of the Act to order the document to be registered within the meaning of the opening words of Section 77 of the Act, so as to give a right of suit under Section 77". When the case was referred to the Full Bench, Burkitt, J. who was one of the members of the Full Bench took the same view as had been expressed by him before the matter was referred to that Bench. Aikman, J. observed and held at page 416:
"It follows from this that the refusal of the Registrar referred to In Section 76 is a refusal upon an inquiry which presupposes the presentation of an application within time."
Stanley, C. J., who had taken a view different from that of Burkitt, J, in Division Bench, ultimately came round to accept and concur in the judgments of Burkitt, J., and Aikman, J. As I shall presently show, this Full Bench decision cannot be held to be good law in view of the decision of the Supreme Court in Mela Ram & Sons v. Commr, of Income-tax, Punjab (AIR 1956 SC 367). Before adverting to that case I think it worthwhile to mention a number of decisions in which the view contrary to that expressed by the Allahabad Full Bench has been taken. Even before the decision of the Supreme Court in Mela Ram's case, in the case of Swaminathan (AIR 1930 Mad 490) (supra), it was held that an order dismissing an appeal as time-barred was as much an order of refusal as one passed on different grounds. It was argued before the Madras High Court that a suit under Section 77 of the Act was not maintainable as the Registrar had rejected the petition under Section 73 on the ground that it was time-barred without going into the merits. It was argued that such orders were not orders of refusal as contemplated by the section. Such a contention was repelled by Madhavan Nair, J., at page 495:
"I do not think that this contention is well founded. No authority has been cited in support of it. An order dismissing a petition on the ground that it is time-barred is as much an 'order of refusal' within the meaning of the section as an order dismissing the petition on the ground that it has no merits. The Act does not make any distinction between those two kinds of orders. One of the conditions that should be complied with by a person instituting a suit under Section 77, Registration Act, is that ha must show that he applied to the Registrar within the time allowed by law."
Trying to distinguish the Full Bench decision of the Allahabad High Court in Udit Upadhia's case (supra), the learned Judge went on to hold that that decision was an authority only for the proposition that if the Registrar rightly rejected the petition on the ground that it was time-barred, then it meant that the plaintiff did not comply with the condition precedent to the maintenance of the suit under this section, and, a suit under Section 77 would not, therefore, lie. In my view, this was merely a mild way of saying that the Full Bench decision of the Allahabad High Court did not lay down the law correctly, because it does not stand to reason as to how the maintainability of a suit under Section 77 can depend upon the finding of the court itself in the suit. The jurisdiction to entertain a suit always depends on facts at the time when the suit is being sought to be instituted and is not made dependant on any finding to be recorded by the court in such a suit itself. That ground of distinction, therefore, is merely a subtle way of saying that the decision in Udit Upadhia's case was not correct. The crux of the matter is that the Act itself does not leave any scope for any distinction between an order rejecting the application under Section 73 of the Act or refusing to register a document on merits, after enquiry. The substance and intent of both the orders are the same, namely, that the application for registration stands rejected and the prayer refused. There seems to be no justification for drawing any distinction between the case of refusal on the ground that the application was time-barred or that the application was not in conformity with the other requirements of law and its rejection on merits after enquiry. As a matter of fact, Section 77 in the context of the preceding sections which I have enumerated above is all-comprehensive ,and provides for ,a suit in all cases of refusal both on an appeal under Section 72 or an application under Section 73 under the provisions of Section 76 of the Act. The party on whom the right to institute has been conferred is not to bother himself about the finesse of the matter as to whether his application or appeal has been dismissed on the ground of limitation or on merits after enquiry. The effect for all practical purposes and the substance of the order in so far as that party is concerned is that his prayer for registration has been refused. Can it then be said that in the former class of cases, there is no order for refusal to register? In my view, the only answer to the question posed must be in the negative. In the case of Kirpa Ram v. Asa Singh, 41 Ind Cas 76: (AIR 1917 Lah 63), Scott-Smith and Shadi Lal, JJ. held that in cases of this kind the court must have regard not only to the actual wording of the order taut to its substance and intent. In that case, it was held that where a Registrar, under S, 72 of the Act ordered that either a new and clear sale deed should be executed, or a note should be added making an ambiguous passage quite clear, the order was tantamount to a refusal to register within the meaning of Section 77 of the Act. So also in Uttam Singh v. Mt. Ratan Devi (AIR 1924 Lah 28), it was held that the rejection of an application under Section 73 of the Act on the ground that it was not properly verified amounted to a refusal as the application would still be an application under S 73. So also in the case of A. Samad v. Dr. Meah (AIR 1939 Rang 50), it was held that where a Registrar in his order stated that no reason had been given to show why the document was not presented within time under Section 73, such an order amounted to a refusal to regeister. In interpreting an order of the Registrar, it was held that one should not merely look to the form but to its substance as well, A Division Bench of the Calcutta High Court in Sajbullah Sirkar v. Hazi Khosh Mohamed Sirkar, ((1886) ILR 13 Cal 264) similarly held that the mere fact of the applicant not having adduced any evidence before the Registrar did not make his order one not refusing registration within the meaning of Section 76, nor was the applicant precluded on that ground alone from pursuing his remedy under Section 77 by a civil suit. It had been ordered in that case by the Registrar as follows:
"All the parties have not appeared, the appeal is struck off. It, however, seems to me that the order of the Sub-Registrar was quite correct,"
Such an order was held to have the same effect as the order of refusal on merits after due enquiry. A learned single judge of the Allahabad High Court has taken the same view in Ram Gopal v. Surendra Kumar (AIR 1970 All 221, para 10). As a matter of fact, when the Full Bench decision of the Allahabad High Court in Udit Upadbia's case was referred to before a Bench of that very court in Abdul Hakim Khan v. Chandan ((1912) ILR 34 All 165), the Division Bench sought to distinguish that case on the ground that the observations made in Udit Upadhia's case in so far as they touched on the question of the enquiry made after an application were quite unnecessary for a decision on the point in issue in that case. This was the best that the Division Bench could do in view of the Full Bench decision of that court,
7. The decision of the Supreme Court in Mela Ram's case (AIR 1956 SC 367) moreover leaves no scope for any argument trying to draw a distinction between a case of rejection of an application under appeal on the ground of limitation and rejection on merits. In Mela Ram's case, the provisions of the Income-tax Act, 1922 fell to be construed. Section 30 of that Act conferred a right of appeal on the assessee; Section 31 provided for hearing and disposal of the appeal; and, Section 33 conferred a right of further appeal against orders passed under Section 31. On these provisions, the question for consideration before the Supreme Court was whether an order dismissing appeal presented under Section 30 as out of time is one under Section 30 (2) or under Section 31 of that Act. If it were the former, there was no appeal provided against it; if it were the latter, it was open to appeal under Section 33. While holding that such an order would still be one under Section 31 of the Act, it was pointed out at page 371 by Venkatarama Ayyar, J., speaking for the Court:
"It is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Section 30 (1) must, therefore, be an appeal In the eye of law, though having been presented beyond the period mentioned in Section 30 (2) it is liable to be dismissed in limine."
And further, "On the other hand, in conferring a right of appeal under Section 30 (1) and prescribing a period of limitation for the exercise thereof separately under Section 30 (2), the Legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law."
As a matter of fact, the observations of Sir Dinshaw Mulla in the case of Nagendranath v. Suresh Chandra (AIR 1932 PC 165) at p. 167 were approved by the Supreme Court both in the case of Raja Kulkarni v. The State of Bombay (AIR 1954 SC 73) as also in Mela Ram's case. The observations are to this effect:
"There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent."
On the principles laid down in those decisions, it was held in Mela Ram's case that an appeal presented out of time was all the same an appeal and the order dismissing it as time-barred was one passed in appeal. It was further held that to fall within Section 31 and subsequently under Section 33 of the Indian Income-tax Act, 1922, it is not necessary that the order should expressly address itself to and decide on the merits of the assessment and that it is sufficient that the effect of the order is to confirm the as-
sessment as when the appeal is dismissed on a preliminary point. Section 31 of that Act was, therefore, construed to include not only orders passed on a consideration of the assessment on merits but also the orders which disposed of the appeal on preliminary issues, such as, limitation and the like. This reinforces the view which I have expressed above, namely, that looking from the point of view of substance and intent, the practical effect of an order of dismissal of an application on the ground of limitation is the same as an order refusing to register on merits after holding an enquiry in that regard. The same principle has been followed by a Bench decision of this court in the Commr. of Commercial Taxes, Bihar, Patna v. Gugu Charan Sao, (1975 Tax LR 1292) (Pat) in a case under the Bihar Sales Tax Act. The question in that case to be considered was the effect of the order of the Commissioner of Commercial Taxes rejecting an application under Section 31 (5) of the Bihar Sales Tax Act, 1959 in limine. It was held that the order contemplated under Section 31 (5) of that Act was not only an order passed on consideration of the merits but included an order disposing of the revision on preliminary issues.
8. It will be seen from the aforesaid discussion that barring the Full Bench decision of the Allahabad High Court in Udit Upadhia's case ((1902) ILR 24 All 402) (FB). all other cases have taken a view contrary to that taken by the Full Bench, The ratio of the decision of the Supreme Court in Mela Ram's case (AIR 1956 SC 367) impels me to adopt the same reasoning in construing the provisions of Section 77 of the Act in conjunction with Sections 72, 73, 75 and 76 thereof. Assuming for the sake of argument, however, that a valid distinction can be said to have been drawn by the Madras High Court in Swaminathan's case (AIR 1930 Mad 490), the same distinction would apply to the instant case also since on merits I have already held that the order passed by the District Sub-Registrar rejecting the application under Section 73 of the Act as time-barred was not correct in law. I would, however, still reiterate that such a distinction does not afford any weighty reason for holding the authority of that Full Bench to be valid in law, tested either on principle or on the basis of authorities. I have, therefore, no hesitation in coming to the conclusion that in the instant cases it was open to the petitioners to insitute a suit under Section 77 of the Act itself within a period of thirty days from the date of orders passed by respondent No. 2. Once it is accepted, as has been held by me, that a suit under Section 77 of the Act was maintainable, there can be no getting away from the position that a remedy has been provided for by or under the Act for the redress of the injury complained of by the petitioners in the instant case. Such injury being referable to Sub-clauses Ob) and (c) of Clause (1) of Article 226, Section 58 (2) of the Constitution (Forty-second Amendment) Act, 1976 comes into play which reads thus:
"In particular, and without prejudice to the generality of the provisions of Sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate......"
In that view of the matter, I am constrained to hold that these applications have abated in view of the aforesaid provision of the Constitution Amendment Act read with Clause (3) of Article 226 after such amendment. These applications have, therefore, to be dismissed as having abated. I shall, however, make no order as to costs.
Shivanugrah Narain, J.
9. I agree that these applications have abated in view of the provisions of Section 58 of the Constitution (Forty-Second Amendment) Act, 1976 read with Article 226 of the Constitution as substituted by the aforesaid Constitution Amendment Act. I also agree substantially with the reasons given by my learned Brother. However, in deference to the views of the learned Judges of the Allahabad High Court in Udit Upadhia v. Imam Bandi Bibi, ((1902) ILR 24 All 402) (FB), I wish to add a few words of my own about that decision.
10. In that case aggrieved by a decision of the Registrar rejecting his application under Section 73 of the Indian Registration Act, 1877 (hereinafter called the Act) to direct the registration of a document on the ground that the application was time-barred, a person filed a suit under Section 77 of the Act in the court of the Munsif. The Munsif dismissed the suit holding it to be not maintainable as the application under Section 73 had not been made within the time required by law. On appeal by the plaintiff, the District Judge set aside this decision holding that the plaintiff's application to the Registrar was within time and remanded the suit for decision on merits. The defendants appealed to the Allahabad High Court and the appeal was ultimately heard by & Full Bench of that court. The Full Bench held that the view of the Registrar that the application under Section 73 of the Act was time-barred was correct. It further held that where registration of a document has been refused by a Sub-Registrar under Section 71 of the Indian Registration Act on the ground of denial of execution no suit will lie in a Civil Court under Section 77 of the Act to compel registration unless an application under Section 73 of the Act had been made to the Registrar within thirty days after making of the order of refusal and that, therefore, the suit filed was not maintainable. The Full Bench, accordingly, allowed the .appeal, set aside the order of the lower appellate court and restored the order of the trial court dismising the suit as not maintainable.
11. On the finding that the application under Section 73 of the Act was time-barred, the actual decision of the Full Bench of the Allahabad High Court in Udit Upadhia's case (1902) ILR 24 All 402 (FB) (supra) that the suit under Section 77 was not maintainable using the expression 'not maintainable1 in the sense of the suit being barred by law, is clearly correct. The powers of the Civil Court in a suit under Section 77 of the Act are co-extensive with the powers of the Registrar upon an application under Section 73 of the Act. In a suit under Section 77, a court cannot direct the document to be registered which the Registrar could not do, it can do only what the Registrar could have done-- Sayid Mahmud v. Muhammad Zubair ((1909) ILR 31 All 523). If the application under Section 73 is time-barred, the Registrar has no jurisdiction to entertain it, much less enquire into it; he must reject it in limine. Similarly, if the Civil Court is of the opinion that the application under Section 73 of the Act was time-barred, it must reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure as barred by law.
12. But though the actual decision in Udit Upadhia's case ((1902) ILR 24 All 402 (FB)) (supra) is correct, the process of reasoning by which this decision was arrived at and certain observations made therein are not correct. Aikman J., with whose judgment Stanley, C. J. and Burkitt, J. both concurred held:
"It follows from this that the refusal referred to in Section 76 is a refusal upon enquiry which presupposes the presentation of an application within time."
Dealing with the argument that if the suit was held to be not maintainable, injustice might result if through some mistake of calculation, a Registrar rejected as time-barred an application which was really within time, Aikman, J., observed, "If such a mistake were made, it would no doubt (be promptly brought to the Registrar's notice, and in such a case there would be nothing to prevent him reviewing his order of rejection. In any event the possible injustice which might result from the hypothetical case put would be as nothing compared with the manifold evils which would follow from sustaining the respondent's contention." (at p. 419 of the report).
Their Lordships were, therefore, of the opinion that the words "refuses to order the document to be registered under Section 76" in Section 77 of the Act mean "refuses to order the document to be registered after enquiry under Section 74" and that, even in a case where the Registrar has, by wrongly deciding that the application under Section 73 was time-barred, rejected the application in limine without any enquiry under Section 74 of the Act, no suit lies under S, 77 of the Act The aforesaid view is plainly untenable.
13. A suit at the instance of a person claiming under the document, registration of which has been refused, or by his assignee or agent, lies under Section 77 where the Registrar refuses to order the document to be registered under Section 72 or Section 76. The conditions precedent for a suit under Section 77, therefore, are (a) refusal by the Registrar to order the document to be registered, and (b) the refusal must be under Section 72 or Section 76 of the Act. Where the Registrar rejects an application under Section 73 to establish the right to have the document registered on the ground that the application is time-barred in substance and for all practical purposes, he refuses to order the document to be registered. The relief sought by the application was a direction by the Registrar ordering the document to be registered. If for whatsoever reason the application is rejected, the relief is denied and there is thus a refusal to order the document to be registered. The first condition is, therefore, fulfilled. The next question is whether the refusal to order the document to be registered is a refusal under ,S. 76, for obviously it is not one under Section 72 which deals with orders passed on appeal. Section 73 enables a person claiming under a document the registration of which has been refused by the Sub-Registrar on the ground of the denial of its execution by the person by whom it purports to have been executed to file an application before the Registrar to establish his right to have the document registered. And Section 73 also lays down that such an application must be filed within thirty days after the order of such refusal by the Sub-Registrar and the other requirements of such an application. According to Section 74, where an application under Section 73 of the Act is made, the Registrar shall enquire as to whether the document has been executed and whether the requirements of the relevant law have been complied with so as to entitle the document to be registered. Section 75 provides that if the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. Section 76 reads thus:
"76. (1) Every Registrar refusing--
(a) to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub-Registrar, or (:b) to direct the registration of a document under Section 72 or Section 75, shall make an order of refusal and record the reasons for such an order in his Book No. 2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.
(2) No appeal lies from any order by a Registrar under this section or Section 72."
Thus we see that the application to the Registrar to establish the right to have the document registered is made under Section 73 in accordance with its terms and conditions, the enquiry into the application is made under S, 74, the order of the Registrar directing the document to be registered is made under Section 75, and the order of the Registrar refusing to direct its registration is recorded under Section 76 of the Act.
14. The application under Section 73 is a condition precedent to an order of refusal under Section 76. Now, Section 73, no doubt, provides that the application must be made within thirty days after the making of the order of refusal, but even though an application is made after the period of limitation prescribed by S, 73, it would nevertheless be an application under Section 73. The decision in Mela Ram's case (AIR 1956 SC 367) is an authority. for the proposition that an appeal presented out of time is nevertheless an appeal. On a parity of reasoning, it must be held that the application under Section 73, presented out of time, is nevertheless an application under Section 73 of the Act. I have set out the provisions of Sections 74, 75 and 76, and it is manifest that the order rejecting an application under Section 73, which is tantamount to an order refusing to direct registration of a document, must be one passed under Section 76, because that is the only section which provides for an order by the Registrar refusing to direct the registration. In Mela Ram's case, referred to above, Venkatrama Aiyar, J., who spoke for the Supreme Court in that case, after holding that an order dismissing an appeal as barred by limitation was an order passed on appeal, observed as follows:--
"Then, the next question is whether it is an order passed under Section 31 of the Act. That section is the only provision relating to the hearing and disposal of appeals, and if an order dismissing an appeal is barred by limitation is one passed in appeal, it must fall within Section 31."
Similarly, an order rejecting an application under Section 73 as time-barred being an order passed upon an application under Section 73 refusing to order the document to be registered, must fall within Section 76, because that is the only section under which an order refusing to direct the document to be registered can be passed. It should also be borne in mind that Clause (b) of Section 76 requires an order of refusal to be made by 'every Registrar refusing to direct the registration of a document under Section 72 or Section 75', it does not require such an order to be made only by a Registrar refusing to direct the registration of a document under Section 75 on the ground that it was not established that the document was executed by the person by whom it purports to have been executed or on any particular ground. When an application under Section 73 is filed before him, two courses are open to the Registrar, he an either order the registration of the document or refuse to order its registration. The order to register the document can be passed only under Section 75, similarly, the order refusing to direct its registration is recorded only under Section 76. In the context, the reference to Section 75 in the expression 'refusing to direct the registration of a document under Section 72 or Section 75, is only meant to indicate that the refusal to direct the registration is of a document in respect of which the Registrar has declined to exercise his powers of directing registration which power is conferred on him by and is derived only from Section 75; it does not indicate that the refusal to direct registration must be because the execution has not been established or the requirements of law other than those laid down in Section 73 were riot fulfilled. It is, therefore, manifest that the plain literal grammatical meaning of the expression "the Registrar refuses to order the document to be registered under Section 76......"
in Section 77 of the Indian Registration Act, interpreted in the context of Sections 73 to 76 of the Act, is "the Registrar refuses to order to be registered a document in respect of which an application under Section 73 of the Indian Registration Act has been filed 'before him and it includes within its ambit an order of the Registrar dismissing an application under Section 73 as barred by limitation or other preliminary grounds as also an order of refusal passed on merits after enquiry. It follows, therefore, that where the Registrar refuses to register a document on the ground that the application under Section 73 to direct its registration is time-barred, the Registrar "refuses to order the document to be registered under Section 76" and a suit lies under Section 77 of the Act against such refusal and the Civil Court is empowered to decide the question whether an application under Section 73 of the Act presented before the Registrar was time-barred. If it comes to the conclusion that the Registrar was wrong in his view that the application was time-barred and is further satisfied that the document was executed by the person by whom it purports to have been executed and the requirements of law have been complied with, it can, pass a decree directing the registration of the document.
15. The object of the Registration Act or Section 77 supports and does not militate against the aforesaid construction, The object of the Legislature in enacting Section 77 obviously was to provide a special and efficacious remedy against the decision of the Registrar erroneously refusing to direct the registration of the document either under Section 72 or Section 76 of the Act. Under the Act, the Registrar can refuse to direct the registration of a document in respect of which an application has been filed before him under Section 73 either because (a) the implication under Section 73 of the Act was time-barred, or (b) the application under Section 73 did not comply with the requirements of Sub-section (2) of Section 73 as to its being in writing and verified and being accompanied by a copy of the reasons recorded, and (c) that after enquiry, he was not satisfied that the document had been executed by the person toy whom it purported to have been executed or that the other requirements of law had not been complied with. If the view of the Allahabad High Court that the refusal to register under Section 76 of the Act is confined to a refusal to register after the enquiry by the Registrar, is correct in the event of an erroneous refusal to direct registration by the Registrar for the first and the second reasons, set out above, the remedy under Section 77 of the Act would not be available to the person aggrieved by the wrong decision of the Registrar. Whether an application is time-barred or does not comply with the requirements of law, is essentially a question of law. Whether a document was executed by the person by whom it purports to be executed is a question of law (sic-- question of fact?) It may not be presumed that though the legislature conferred upon the Civil Court the power to review the finding of fact arrived at by the Registrar, it withheld from it the power to review its finding on a question of law, namely, that the application under Section 73 of the Act was time-barred. Such a construction would fail to effectuate, or would effectuate incompletely, the purpose for which Section 77 was enacted. There is nothing in Sections 73 to 77 of the Act which compels such a construction. Section 77 being a piece of remedial legislation, on general principles a beneficial construction should be put on the words and expressions occurring, therein.
16. The learned Judges of the Allahabad High Court were very much swayed by the consideration that if the construction put by me was to be adopted, the object of the Registration Act, which was to enforce speedy registration of deeds would be nullified, because then to use the words of Aikman, J., in the Allahabad Full Bench case........." a person in whose favour a document had been executed, and who had been refused registration on denial of execution, might wait for years -before applying to the Registrar, and on his application being rejected, as it infallibly would be, might sue in the Civil Court, and perchance obtain from that court a decree for registration, which might have the effect of unsettling titles and ruining bona fide transferees into whose hands the property had in the meantime passed." The apprehension, in my opinion, is not real. If the application under Section 73 of the Act filed by the person before the Registrar was rightly held as time-barred by the Registrar, the Civil Court in a suit under Section 77 of the Act, would speedily decide the question whether the application under Section 73 was time-barred as a preliminary question and reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure as barred by law. This would not cause inordinate delay. At any rate, the consequential delay caused in permitting a suit to be brought even in a case where the Registrar had held that the application was time-barred, was not such a consideration as would justify the court in departing from the plain literal meaning of the expression--"refuses to order a document to be registered under Sec, 76" and permit the addition of words like 'after enquiry' either under Section 76 or Section 77 to the Act. Judged by general principles, the view expressed by the Allahabad High Court that the refusal referred to In Section 76 is a refusal upon an enquiry and that the Civil Court cannot grant any relief even in cases in which the Registrar has wrongly held the application under Section 73 to be time-barred, is plainly wrong.
17. As my learned brother has, if I may say so with respect, so clearly and lucidly shown, the authorities also are against the aforesaid view and the opinions of the Madras, Calcutta, Lahore, Rangoon and even of the Allahabad High Court in the subsequent decisions and of Judges of the eminence of Sri Shadi Lal and .Sir Madhuwan Nair, are to the contrary. The decisions in Edun v Mahomed Siddik ((1883) ILR 9 Cal 150) and in Kunhimmu v. Viyyathamma ((18884) I.LR 7 Mad 535) and in similar cases on which the Full Bench of the Allahabad High Court relied are distinguishable. In those cases the High Courts held that the suit under Section 77 could not succeed and the Civil Court was not competent to order registration under Section 77 of the Act after it had found that the application under Section 73 was time-barred. For these reasons, a suit lies under Section 77 of the Act against the impugned orders of the Registrar refusing to direct the registration of the document and in that suit the applicants cannot only get an adjudication that the application under Section 73 of the Act filed in the case was not time-barred, but also, if they satisfy the court on the relevant points, a decree directing registration of the document. In the suit, therefore, if their contentions are correct, they will obtain not only the reliefs sought for in these applications but more efficacious and complete reliefs. It is not disputed and indeed it cannot be disputed, that the specific remedy of a suit under Section 77 of the Act is "other remedy for such redress" provided for by or under any other law for the time being in force". It cannot also be doubted that a remedy is provided by law even though at the time the question whether a remedy has or has not been provided falls to be considered that remedy may have become unavailable, because it has become time-barred. To hold otherwise would 'be to nullify the bar of Article 226 (3) of the Constitution, for the bar could in that case be nullified by the applicants approaching the High Court under Article 226 after the remedy provided by law has become time-barred. The question whether a remedy is or is not provided has to be judged with reference to the point of time at which the impugned order etc. is made and not with reference to the point of time at which the application under Article 226 is filed or taken up for consideration.
18. As the applications must be held to have abated, I do not propose to go into the merits of the contentions raised.