Chandeshwar Yadav Vs. Smt. Radha Devi & Ors.
EmailAppeal: Civil Appeal No. 5273 of 1992
Petitioner: Chandeshwar Yadav
Respondent: Smt. Radha Devi & Ors.
Apeal: Civil Appeal No. 5273 of 1992
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Mar 28, 2001
Head Note:
REGISTRATION
Registration Act, 1908
Section 77 – Scope – Agreement to sell on 24.8.71 – Sale deed executed on 30.9.71 and presented before Sub-Registrar – Vendor not turning up – Appeal rejected – Suit for specific performance on 22.8.74 – If barred by time under Section 77. Held that Sec-tion 77 gives option to vendee either to file suit under that provision or to file suit for specific performance of an agree-ment of sale. Suit filed for specific performance in this case cannot be dismissed on grounds of limitation, having not filed within 30 days. (Para 4)
CIVIL LAW
Civil Procedure Code, 1908
Order 9, Rule 13 – Setting aside of ex parte decree – Matter re-manded to lower court – Notice issued – Lawyer for party making one or two appearances. Nothing to show if lawyer had no vakalatnama or instructions. Held that the court was justified in deciding the matter ex parte as the party had sufficient notice. (Para 4)
JUDGEMENT:
ORDER
1. Defendant no. 1, on 24.8.1971, entered into an agreement with plaintiffs-respondents for sale of a house as well as of land. It is alleged that defendant no. 1 received the entire consideration amount and a sale deed was also executed on 30.9.1971 and was presented before the Sub-Registrar for registration. It is al-leged that defendant no. 1 did not turn up for registration. On 6.10.1972, defendant no. 1 executed a registered sale deed in favour of defendant no. 2 (appellant herein) in respect of the property covered by the agreement for sale dated 24.8.1971. Since defendant no. 1 did turn up for registration of the sale deed, the plaintiff preferred an appeal before the Commissioner but the same was rejected. On 22.8.1974, the plaintiffs-respondents filed a suit for specific performance of the agreement for sale of the property. In the said suit, various issues were framed and one of the issues was whether the suit was barred by limitation. The trial court found that the consideration amount has already been paid and the plaintiffs were always ready and willing to perform their part of the contract. The trial court also found that defendant no. 2 (appellant herein) was not a bona fide purchaser of the property as the sale deed was bogus, fraudulent and without consideration. However, the trial court held that the suit was barred by limitation and therefore, suit was dismissed. Plain-tiffs, thereafter, preferred an appeal before the First Appellate Court. The First Appellate Court found that the suit brought by the plaintiffs was within limitation and, therefore, the appeal was allowed and the suit for specific performance of the agree-ment for sale was decreed. Aggrieved defendant-appellant pre-ferred second appeal before the High Court. The High Court al-lowed the appeal and remanded the appeal to the First Appellate Court for recording finding on two questions (1) whether defend-ant no. 2 was a bona fide purchaser with notice for consideration and (2) whether the delay in filing the suit after a lapse of more than 13 months was such which disentitled the plaintiffs for grant of an equitable relief of specific performance.
2. It appears that after the remand, the notice of hearing of the appeal was served on Counsel for the defendent-appellant, who was his earlier Counsel for the appellant. It also appears that the said Counsel appeared once or twice before the First Appellant Court. On 5.12.1984, an application was moved by the plaintiffs under Order 41, Rule 27 of the Code of Civil Procedure for taking additional evidence. Since the defendant-appellant did not appear in the appeal, the said evidence was allowed to be taken on record. Subsequently, the appeal was heard on merits and was allowed. Defendant no. 2, thereafter, filed an application under Order 9, Rule 13 for setting aside ex parte judgment. The said application was rejected. The defendant filed two sets of appeals, one against the order rejecting the application for recalling the ex parte order and second against the ex parte judgment passed by the First Appellate Court. The High Court dismissed the second appeal as well as miscellaneous appeal. Defendants, thereafter, preferred Letters Patent Appeals against the judgment of the learned Single Judge dated 17.12.1989. The Letters Patent Bench dismissed the miscellaneous appeal as well as second appeal as it was held not maintainable. Against the aforesaid decision, the defendant-appellant has filed the present appeal.
3. Learned Counsel appearing for the appellant raised two argu-ments. The first argument is that the defendants who were re-spondents in the First Appellate Court had no notice of the appeal and, therefore, the ex parte order passed by the Appellate Court deserved to be set aside. The second argument is that the suit having not been filed within 30 days from the date of the refusal by the Registrar, the suit filed by the plaintiffs was barred by time under Section 77 of the Registration Act.
4. So far as the first argument is concerned, the order sheet of the Appellate Court shows that the notice of the appeal was served upon the Counsel for the defendant-appellant, who once or twice appeared in the appeal. Subsequently, he did not appear. The Counsel for the defendant-appellant never stated before the First Appellate Court that he has either no vakalatnama or no authority on behalf of the defendants. We, therefore, find that the defendant-appellant had sufficient notice of hearing of the appeal and the First Appellate Court was justified in proceeding to decide the appeal in absence of the defendant-appellant. So far as the second question is concerned, assuming when the Regis-trar declined to register the sale deed presented by the plain-tiffs, the plaintiffs were under no obligation to bring suit within thirty days of such refusal as contemplated under Section 77 of the Registration Act. Section 77 of the Registration Act gives option to a vendee either to file suit under Section 77 of the Act or bring a suit for specific performance of an agreement for sale of the property. In the present case the plaintiff has chosen to bring the suit for specific performance of the agree-ment for sale of the property within the period of limitation. In such a situation the plaintiff’s suit cannot be dismissed on the ground of limitation, having not filed within thirty days of refusal by the Registrar to register the sale deed as contemplat-ed under Section 77 of the Registration Act.
5. For the aforesaid reasons we do not find any merit in the appeal. It is, accordingly, dismissed. There shall be no order as to costs.
1. Defendant no. 1, on 24.8.1971, entered into an agreement with plaintiffs-respondents for sale of a house as well as of land. It is alleged that defendant no. 1 received the entire consideration amount and a sale deed was also executed on 30.9.1971 and was presented before the Sub-Registrar for registration. It is al-leged that defendant no. 1 did not turn up for registration. On 6.10.1972, defendant no. 1 executed a registered sale deed in favour of defendant no. 2 (appellant herein) in respect of the property covered by the agreement for sale dated 24.8.1971. Since defendant no. 1 did turn up for registration of the sale deed, the plaintiff preferred an appeal before the Commissioner but the same was rejected. On 22.8.1974, the plaintiffs-respondents filed a suit for specific performance of the agreement for sale of the property. In the said suit, various issues were framed and one of the issues was whether the suit was barred by limitation. The trial court found that the consideration amount has already been paid and the plaintiffs were always ready and willing to perform their part of the contract. The trial court also found that defendant no. 2 (appellant herein) was not a bona fide purchaser of the property as the sale deed was bogus, fraudulent and without consideration. However, the trial court held that the suit was barred by limitation and therefore, suit was dismissed. Plain-tiffs, thereafter, preferred an appeal before the First Appellate Court. The First Appellate Court found that the suit brought by the plaintiffs was within limitation and, therefore, the appeal was allowed and the suit for specific performance of the agree-ment for sale was decreed. Aggrieved defendant-appellant pre-ferred second appeal before the High Court. The High Court al-lowed the appeal and remanded the appeal to the First Appellate Court for recording finding on two questions (1) whether defend-ant no. 2 was a bona fide purchaser with notice for consideration and (2) whether the delay in filing the suit after a lapse of more than 13 months was such which disentitled the plaintiffs for grant of an equitable relief of specific performance.
2. It appears that after the remand, the notice of hearing of the appeal was served on Counsel for the defendent-appellant, who was his earlier Counsel for the appellant. It also appears that the said Counsel appeared once or twice before the First Appellant Court. On 5.12.1984, an application was moved by the plaintiffs under Order 41, Rule 27 of the Code of Civil Procedure for taking additional evidence. Since the defendant-appellant did not appear in the appeal, the said evidence was allowed to be taken on record. Subsequently, the appeal was heard on merits and was allowed. Defendant no. 2, thereafter, filed an application under Order 9, Rule 13 for setting aside ex parte judgment. The said application was rejected. The defendant filed two sets of appeals, one against the order rejecting the application for recalling the ex parte order and second against the ex parte judgment passed by the First Appellate Court. The High Court dismissed the second appeal as well as miscellaneous appeal. Defendants, thereafter, preferred Letters Patent Appeals against the judgment of the learned Single Judge dated 17.12.1989. The Letters Patent Bench dismissed the miscellaneous appeal as well as second appeal as it was held not maintainable. Against the aforesaid decision, the defendant-appellant has filed the present appeal.
3. Learned Counsel appearing for the appellant raised two argu-ments. The first argument is that the defendants who were re-spondents in the First Appellate Court had no notice of the appeal and, therefore, the ex parte order passed by the Appellate Court deserved to be set aside. The second argument is that the suit having not been filed within 30 days from the date of the refusal by the Registrar, the suit filed by the plaintiffs was barred by time under Section 77 of the Registration Act.
4. So far as the first argument is concerned, the order sheet of the Appellate Court shows that the notice of the appeal was served upon the Counsel for the defendant-appellant, who once or twice appeared in the appeal. Subsequently, he did not appear. The Counsel for the defendant-appellant never stated before the First Appellate Court that he has either no vakalatnama or no authority on behalf of the defendants. We, therefore, find that the defendant-appellant had sufficient notice of hearing of the appeal and the First Appellate Court was justified in proceeding to decide the appeal in absence of the defendant-appellant. So far as the second question is concerned, assuming when the Regis-trar declined to register the sale deed presented by the plain-tiffs, the plaintiffs were under no obligation to bring suit within thirty days of such refusal as contemplated under Section 77 of the Registration Act. Section 77 of the Registration Act gives option to a vendee either to file suit under Section 77 of the Act or bring a suit for specific performance of an agreement for sale of the property. In the present case the plaintiff has chosen to bring the suit for specific performance of the agree-ment for sale of the property within the period of limitation. In such a situation the plaintiff’s suit cannot be dismissed on the ground of limitation, having not filed within thirty days of refusal by the Registrar to register the sale deed as contemplat-ed under Section 77 of the Registration Act.
5. For the aforesaid reasons we do not find any merit in the appeal. It is, accordingly, dismissed. There shall be no order as to costs.
