P L D 1963 Dacca 326 (PLP)

M. R. KHAN, J.

‑I agree with my Lord, the Chief Justice that this appeal should be dismissed, but having regard to the J importance of the point of law involved in this case, I would like to express my own view thereon.

28. The question is whether a suit for specific performance of a contract of sale of immovable property lies in view of the remedy available under section 77 of the Registration Act. An answer to this question will depend upon whether or not section 77 of the Registration Act bars specific performance of a contract of sale under the Specific Relief Act, 1877, either expressly or by implication. Subsection (1) of section 77 which is material here runs thus :‑ "Where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit‑for decree directing the docu ment to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree." Obviously, section 77 does not expressly bar specific performance of a contract of sale if it is otherwise liable to be specifically C enforced under the Specific Relief Act. In order to determine if section 77 bars specific performance of a contract of sale by implication it is necessary to examine the scope and purpose of a suit under that section and those of a suit, for specific performance of a contract of sale under the Specific Relief ‑Act. The Registration Act deals with registration of documents generally. According to the scheme of that Act, every document to be registered there under may be presented at the proper registration office by its executant or by the persons claiming under the same or by their duly authorised agents, vide section

32. The registering officer shall, as required by section 35 (1) register the document if he is satisfied as to its due execution, but he may refuse its registration on the ground of the executant's denial of its execution under section 35 (3) or on grounds other than denial of execution e.g., insufficient description of property (sections 21 and 22), presentation of the document beyond time (section 23) or in wrong office (section 28). or by incompetent person (section 32), non‑appearance of executant within time (section 34), or executant appearing to be a minor, idiot or lunatic [section 35 (3)]. If the Sub‑Registrar refuses to register a document on a ground other than denial of its execution, an appeal to have the document registered lies to the Registrar under section ii within thirty days from the date of the order of refusal. If, however, the Sub‑Registrar refuses to register the document on the ground of denial of its execution by the executant or his legal representative, the person claiming under that document may, within thirty days after the making of the order of refusal, make an application under section 73 to the Registrar to establish his right to have the document registered. On such appeal or application, the Registrar may direct the document to be registered under section 72 or section 75, or refuse to do so under section 72 or

76. Where .the Registrar refuses to order the document to be registered, the person claiming under , such document may, within thirty days after the making of the order of refusal, institute in the Civil Court of appropriate jurisdiction, a suit under section 77 for a decree directing the document to be registered. Thus, it will appear that the sole purpose of a suit under section 77 is to procure registration of the document whose registration was refused initially by the Sub‑Registrar and ultimately by the Registrar. Acting under section 77, a Civil Court can do only what the Registrar could have done. Therefore, inquiry by the Court in a suit under the said section is confined to the plaints mentioned in section 74, namely, (a) whether the document has been executed, and (b) whether the requirements of the registration law have been complied with. In such a suit, the Court is not concerned with the validity or legal effect of the document and," as such, it cannot inquire into defences like fraud, misrepresentation, undue influence, coercion, duress, want of consideration and matters affecting the validity of the document. But, all such matters can be inquired into by the Court in a suit for specific performance of a contract of sale, if these are raised therein by the party opposing performance of the contract. A decree in a suit under section 77 of the Registration Act affects only the document concerned but does not strike at the transac tion between the contending parties. Therefore, the Court's) refusal to pass a decree in a suit under section 77 directing the registration of the document cannot affect the contract of sale, which remains unperformed until the deed of sale is registered.) While the sole purpose of a suit under section 77 is to procure registration of the document presented for registration, the purpose of a suit for specific performance of a contract is not to procure registration of the very document whose registration has been refused by the Registrar but to enforce the contract itself by getting a fresh document executed and registered through Court to perfect the plaintiff's title and possession. Thus, a decree in a suit under section 77 affects only the document, but a decree in a suit for specific performance of a contract strikes at the transaction itself, and the reliefs obtainable in a suit for specific performance which may in appropriate cases, include recovery or confirmation of possession, cannot be had in a suit under section

77. Also the causes of action in the said two classes of suits are different. The cause of action in a suit under section 77 arises on the Registrar's refusal to register the docu ment, but the cause of action in a suit of the other class is the breach of the contract by the person contracting to sell. Thus, it is quite clear that the scope and purpose of a suit under section 77 of the Registration Act and those of a suit for specific performance of a contract of sale are different. A suit for specific performance of a contract of sale provides a separate remedy based on a cause of action which is independent and separate from the cause of action for a suit under section 77 of the Regis tration Act. Therefore, section 77 which is apparently an enabling provision cannot be construed as providing, the only exclusive remedy to the person claiming under the unregistered document. Section 77 being an enabling provision the person claiming under the unregistered document may bring a suit under the section for procuring only the registration of the document and if he chooses to do so, the suit must be brought within thirty days after the Registrar's order refusing its registration. As the said section does not provide the only exclusive remedy, separate suit under the Specific Relief Act for the enforcement of the contract itself is maintainable if it is not otherwise barred. I am, therefore, clearly of opinion that section 77 of the Registra tion Act does not bar, either expressly or by implication, a suit under the Specific Relief Act for specific performance of a contract of sale of immovable property. This view finds support also from the proviso to section 49 of the Registration Act according to which "an un‑registered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received in evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 . . . . . " The said proviso was introduced on 1‑4‑1930 by the Registration (Amendment) Act XXI of 1929. The Legislature should be presumed to have made the proviso with knowledge of the various provisions of the Registration Act, including sections 35 (1), 72, 75 and i7 all of which provide for procuring registration of documents. Of these, section 35 (1) confers power on the registering officer to register a document and sections 72 and 75 empower the Registrar to direct that the document be registered in case of refusal of its registration by the Sub‑Registrar. Also the same power, namely, the power to direct registration of the self‑same document is vested in the Civil Court under section 77 in case the Registrar refuses registration. Thus, the purpose of each of the sections 3"(1), 72, 75 and 77 is the same, namely, to secure registration of the same document by or through different authorities on refusal of its registration by one or the other. That being so, if a suit for specific performance of a contract of sale be not maintainable in view of the availability of the remedy under section 77, it will follow, by parity of reasoning, that such suit will be non‑maintainable because of the remedies available under sections 35 (1), 72 and

73. But the Legislature must not have intended that since the Registration Act makes elaborate provi sions for procuring registration of a document registration of that document can never be secured by a suit for specific perfor mance of the contract. After the registration or a document has been refused by the registering authority, the person claiming under the document may prefer an appeal to the Registrar under section 72 or file an application before him under section

73. The claimant may also bring a suit for specific performance of the contract of sale instead of having recourse to an appeal or application to the Registrar under sections 72 or

73. If a suit for specific performance is maintainable after the refusal of registration by the Sub‑Registrar notwithstanding the claimant's failure to have recourse to appeal or application to the Registrar, there is no reason why such a suit shall not be maintainable merely because of the availability of the remedy under section 77 particularly when the scope of inquiry by the Civil Court in a suit under section 77, as already said, is the same as in the case of an appeal or application before the Registrar under section 72 or

73. The proviso to section 49 having been introduced in the; face of sections 35 (1) 72, 75 and 77, the implication is that a separate suit for specific performance of a contract will be main tainable if the document be not registered in accordance with the aforesaid provisions of the Registration Act. In view of what has been stated above, I would answer the question in the affirmative and hold that section 77 of the Registration Act does not provide the only exclusive remedy and that a suit for specific performance of a contract of sale under the Specific Relief Act is maintainable in spite of the availability of the remedy by a suit under section 77 of the Registration Act. S. B./A. H. Reference answered in affirmative.