Allahabad High Court
Sankatha Prasad vs State Of U.P. And Others on 8 September, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 52081 of 2011
Petitioner :- Sankatha Prasad
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Shailendra Yadav
Respondent Counsel :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner.
The respondent no.4, Chandra Shekhar claims to have purchased the property from the petitioner and furnished the sale deed to be presented before the Sub-registrar, Tehsil Machhlishahar, District Jaunpur. The Sub-registrar issued notice to the petitioner calling upon him to present himself for the execution of the said document but the petitioner abstained from appearing before him. The Sub-registrar on account of such abstention passed an order on 12th April, 2001 refusing to register the document as the executor had failed to attend his office within four months from the date of execution of the document. The said order is on record as annexure-1 to the writ petition.
The respondent no.4 feeling aggrieved moved an application purporting to be under Section 73 of the Registration Act, 1908 on 17th April, 2001, which was within the time prescribed. Later on he sought amendment in the application making a request that the same should be treated to be an appeal under Section 72 of the Act as the petitioner had not denied the execution but had simply abstained from appearing before the Sub-registrar. Upon which, the impugned order dated 9th August, 2011 was passed registering the said case under Section 72 of the Act reciting therein that the same is not time barred. A further recital contained therein is that the petitioner has deliberately abstained from the proceedings as a result whereof the matter could not be disposed of, hence it was directed to be taken up on 25.8.2011.
The petitioner being aggrieved by the aforesaid order is before this Court under Article 226 of the Constitution of India.
Learned counsel for the petitioner submits that the application, filed under Section 73 of the Act, could not have been converted into an appeal, under Section 72 inasmuch as, the petitioner had, by such abstention, denied the execution of the document.
The aforesaid argument of the petitioner cannot be accepted, inasmuch as, the petitioner admittedly did not appear before the Sub-Registrar to deny the execution. What he did was that he simply abstained from appearing before the Sub-Registrar. This in the opinion of the Court would not fall within the definition as contained in Section 73 and would be a subject matter of appeal under Section 72 of the Act. The amendment sought for substitution of the correct section was justified even though a wrong mention of provision would not denude the Registrar to proceed, as he otherwise possess the power to decide an appeal. The appeal being maintainable, the same authority has to decide the matter as such the order impugned does not require interference.
In view of the aforesaid conclusions drawn, I do not find any merit in the writ petition. Accordingly, the writ petition is dismissed.
Order Date :- 8.9.2011
Shiraz
