Document P.No.77/2016 Dated ... vs Anantapur. The Sale Deed Was ...
2021 Latest Caselaw 4380 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.10660 OF 2021
ORDER:

This Writ Petition is filed by one Bandi Kanthamma, w/o late

B. Somi Reddy, under Article 226 of the Constitution of India,

declaring the action of the second respondent in disposing of the

appeal on technical plea of delay without following the directions

specified in W.P.No.39047 of 2018 dated 31.10.2018 as illegal,

arbitrary and consequently to set-aside the same by issuing a

specific direction to the respondents to receive and register the

Document P.No.77/2016 dated 31.12.2015 and release the same

to the petitioner.

The facts of the case in nutshell are that, the petitioner

purchased 1/3rd undivided share of property from her vendor one

M. Kumara Swamy in Court auction vide E.P.No.6 of 2010 in

O.S.No.45 of 2010 on the file of Additional District Judge,

Anantapur. The sale deed was executed in favour of this petitioner

and the petitioner presented the same for registration before the

third respondent as per „Anywhere Registration‟. The third

respondent processed the same vide C.S.No.12035/2015, but did

not release the document after registration.

As the document was not registered, released when

presented for registration by the third respondent, the petitioner

filed W.P.No.8438 of 2016 for a specific direction before High Court

of Andhra Pradesh at Hyderabad. The High Court vide order dated

01.09.2016 issued a direction to the third respondent to register MSM,J WP_10660_2021

and release the document within a period of four weeks, while

observing that, if the third respondents wants to refuse the

registration, he has to record reasons as envisaged under Section

71(1) of the Registration Act, 1908.

Since the third respondent did not comply with the order in

W.P.No.8438 of 2016 dated 01.09.2016, the petitioner was

compelled to file C.C.No.2119 of 2016 and it was contested by the

third respondent, specifically contending that he has already

passed an order on 21.09.2016 vide P.No.77/2015. In the said

endorsement, the third respondent mentioned that there was an

order of attachment by the Court in O.S.No.4 of 2001, but the third

respondent did not serve copy of the order of refusal of registration,

as required under Section 71 of the Registration Act, 1908.

Aggrieved by the order dated 21.09.2016 passed by the third

respondent, the petitioner preferred an appeal under Section 72 of

the Registration Act before the second respondent/District

Registrar on 23.07.2017 raising several questions, and the same

was pending. Thereupon, the petitioner filed W.P.No.39047 of 201

and the High Court vide order dated 31.10.2018 directed the

second respondent to consider the appeal within four weeks. Since

the second respondent did not comply with the direction in

W.P.No.39047 of 2017 dated 31.10.2018, C.C.No.1140 of 2019 was

filed. Despite it, the third respondent did not register the document

on the ground of attachment. However, the order of the second

respondent in deciding appeal on technical ground of limitation is

under challenge in this present writ petition, as the question of MSM,J WP_10660_2021

limitation was not raised at the initial stage when the appeal is

entertained and registered, and contended that dismissal of appeal

on the ground of limitation is illegal, thereby, the order impugned

in the writ petition is liable to be declared as illegal and arbitrary;

consequently set-aside the same while issuing direction to the

third respondent to register the document on representation by

this petitioner.

The petitioner raised the following specific grounds in the

writ petition:

a) Proceedings No.A/798/2018 dated 18.06.2020 is contrary to

the directions issued in W.P.No.39047 of 2018.

b) When a direction was issued by this Court in W.P.No.39047

of 2018 on merits, dismissal of the appeal on technical plea

of limitation is illegal and in violation of the order in

W.P.No.39047 of 2018.

c) The second respondent did not consider dismissal of

O.S.No.4 of 2001 where an interim order of attachment was

ordered. But, either Respondent Nos. 2 or 3 did not consider

the same in proper perspective and that the second

respondent ought to have directed the third respondent/

Sub-Registrar to register the document as per Section 75(2)

of the Registration Act to dispose of the matter in accordance

with law, thereby, the order is illegal and arbitrary and

requested to set-aside the same; consequently requested to

directed the third respondent to receive and register the

Document with P.No.77/2016 dated 31.12.2015.

MSM,J WP_10660_2021

During hearing, Sri K.A. Narasimham, learned counsel for

the petitioner vehemently contended that, dismissal of appeal on

technical ground of limitation is a serious illegality and the

respondents are not supposed to raise such plea, as dismissal of

appeal purely on technical grounds is erroneous and contrary to

the directions issued by the High Court in W.P.No.39047 of 2017

dated 31.10.2018 and requested to set-aside the same and issue a

direction as claimed above.

Whereas, learned Assistant Government Pleader for Stamps

and Registration would contend that, when the appeal is

hopelessly barred by limitation, dismissal of appeal is in

accordance with law and it is not a technical ground. Besides

limitation, the appeal was dismissed on other grounds also. On the

other hand, even if no plea of limitation is set up by the

respondents, it is the duty of the authority to consider whether the

appeal is in time, in view of Section 3 of Limitation Act. Therefore,

dismissal of the appeal on the ground of limitation is in accordance

with law and requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the point that needs to be answered by this

Court is:

"Whether dismissal of an appeal filed under Section 72 of the Registration Act, 1908, on the ground of limitation be sustained. If not, whether a direction as sought by this petitioner be issued declaring the Proceedings No.A/798/2018 dated 18.06.2020 as illegal and arbitrary. Whether a consequential direction be issued to the third respondent to receive and register the Document P.No.77/2016 dated 31.12.2015?

MSM,J WP_10660_2021

P O I N T:

It is an undisputed fact that this petitioner purchased the

property in the Court auction and presented the document for

registration before the third respondent under the provision

„Anywhere Registration‟, but no action was taken for release of the

document by the third respondent. Thereupon, the petitioner filed

W.P.No.8436 of 2016 and the learned single Judge vide order dated

01.09.2016 issued the following direction:

"Since it is stated that the 3rd respondent received the sale deed for registration, the 3rd respondent is directed to consider and register the sale deed, if the same is otherwise in order as per the Indian Stamp Act, 1899, within a period of four (4) weeks from the date of receipt of a copy of this order. If the 3rd respondent wants to refuse the registration, he has to record reasons as envisaged under Section 71(1) of the Registration Act, 1908."

But, it appears from the allegations that, as the order passed

by the learned single Judge in W.P.No.8438 of 2016 dated

01.09.2016 was not complied with, the petitioner filed C.C.No.2119

of 2016, wherein, the learned single Judge vide order dated

30.06.2017 observed as follows:

"It is to be seen that this Court vide order dated 01.09.2016 disposed of W.P.No.8438 of 2016 directing the Sub-Registrar to consider and register the sale deed presented by the petitioner, if it is in order as per the Indian Stamp Act, 1899 and otherwise to record reasons as per Section 71(1) of the Registration Act, 1908.

In pursuant to the said order, the Sub-Registrar passed orders vide an endorsement dated 21.09.2016. The validity of the said order cannot be challenged in the contempt case.

In view of the same, contempt case is closed."

As the third respondent passed an endorsement dated

21.09.2016, the petitioner preferred appeal before the second MSM,J WP_10660_2021

respondent, who in-turn registered the same without raising an

objection as to limitation under Section 72 of the Registration Act,

but did not decide the appeal in accordance with law. thereupon,

the petitioner filed W.P.No.39047 of 2018 which was disposed of by

this Court by the learned single Judge on 31.10.2018 with

following direction:

"In view of the facts and circumstances of the case, 2nd respondent is directed to dispose of the appeal filed by the petitioner on 23.07.2017 against refusal order dated 21.09.2016 in P.No.77/2015 within a period of four (04) weeks from the date of receipt of a copy of this order and take action accordingly after cosndiering the grounds raised by the petitioner."

Since the order in W.P.No.39047 of 2017 dated 31.10.2018

is not complied, the petitioner filed C.C.No.1140 of 2019 and it is

pending before the Court. The learned single Judge passed the

order directing the second respondent to dispose of the appeal filed

under Section 72 of the Act, within four weeks from the date of

receipt of copy of the order, considering the grounds raised by the

petitioner. Later, after initiation of contempt case, the order under

challenge i.e. Proceedings No.A/798/2018 dated 18.06.2020 is

passed by the second respondent/District Registrar, held as

follows:

"The appellant sent an appeal application dated 23.07.2017 to the District Registrar, Hindupur through registered post against the said refusal order dated 21.09.2016 i.e. after lapse of ten months from the date of receipt of the refusal order on 28.09.2016 without presenting the original document along with appeal fee before the District Registrar, Hindupur within the stipulated time of thirty days i.e. on receipt of the refusal order i.e on or before 28.10.2016.

After considering all the facts of the case it is hereby ordered that the appeal application dated 23.07.2017 is not filed according to the procedure prescribed under Section 72 and 73 of the Registration Act, 1908 and therefore the appeal is not allowed."

MSM,J WP_10660_2021

When an order is passed by Sub-Registrar, an appeal lies to

the District Registrar under Section 72 of the Registration Act,

1908, to refuse and register the document and such appeal shall

be presented within thirty (30) days from the date of the order.

Section 72 of the Registration Act, 1908 deals with appeal to

Registrar from orders of Sub-Registrar refusing registration on

ground other than denial of execution. It deals with an appeal to

the District Registrar from the orders of the Sub-Registrar refusing

to register a document. There is no prescribed form in which an

appeal under this section is to be preferred within 30 days from the

impugned order. When there is no legal impediments for the

registration of the documents, the party cannot be driven to an

appeal. (vide P. Narasimha Reddy and another v. Sub-Registrar,

Shameerpeta Mandal, R.R. District1). In Nakka Surya Bhagvan

v. State of Andhra Pradesh2, the Court held that limitation starts

"from the date of the order" i.e. from the receipt of the order.

In the present case, the petitioner did not mention anywhere

as to the date of receipt of copy of the order dated 21.09.2016

passed by the third respondent. But, as seen from the order, the

second respondent calculated the limitation only from the date of

refusal order passed was by the third respondent 21.09.2016. In

any view of the matter, it is clear that the petitioner is aware about

passing of an order, in view of the order in C.C.No.2119 of 2016

dated 30.06.2017 wherein it was specifically stated that, Sub-

Registrar passed orders vide endorsement dated 21.09.2016. The

order in C.C.No.2119 of 2016 was passed on 30.06.2017. So,

2005 (2) ALD 807

2011 (1) ALT 338 MSM,J WP_10660_2021

atleast by the date of the order in C.C.No.2119 of 2016, the

petitioner is having knowledge about passing refusal order dated

21.09.2016 by the third respondent. Even if the limitation is

counted from the date of knowledge, it must be filed within thirty

days from 30.06.2017 i.e passing orders in C.C.No.2119 of 2016.

But, the appeal is sent by registered post after ten months from the

date of receipt of acknowledgment of refusal order passed by the

third respondent dated 21.09.2016 and filed on 23.07.2017.

According to Section 71 of the Registration Act, 1908, a copy

of the order is to be supplied to the petitioner without any

unnecessary delay. However, when an order is communicated

under proper acknowledgment i.e. on 28.09.2016, the limitation

starts from the date of service of such order, according to the

principles laid down in the above judgments. Even if the

acknowledgment of the receipt of order is not accepted, still the

limitation starts from the date of receipt of copy of order of refusal.

But, the appeal was not filed even from the date of knowledge of

refusal order passed by the third respondent. Therefore, dismissal

of appeal by the second respondent on one of the grounds i.e. delay

in filing an appeal is justifiable, in view of Section 3 of Limitation

Act.

One of the major grounds raised by the petitioner is that,

when no objection was raised at the time when appeal was filed

regarding limitation, the same cannot be raised subsequently.

Merely because an appeal is registered without raising any

objection as to the limitation, it does not amount to waiver of plea MSM,J WP_10660_2021

of limitation and it‟s registration is only an administrative order

passed by the second respondent herein, but whereas, the order

impugned in the writ petition is in the nature of quasi judicial

order where limitation is to be considered.

Hence, failure to raise ground of limitation at the time of

registration of appeal is not at all a ground to set-aside the

Proceedings No.A/798/2018 dated 18.06.2020 passed by the

second respondent, allowing this writ petition.

A bare look at the order impugned in the writ petition passed

by the second respondent, the appeal was sent by registered post

on 23.07.2017 to the District Registrar, Hindupur against the

order of refusal dated 21.09.2016 without presenting the original

document along with the appeal before the District Registrar,

Hindupur, within the stipulated time.

The words "duly presented for registration" means properly,

regularly or in true manner according to law. The word "duly" is

very significant in arbitrary exercise of power. Chapter XXV of the

Andhra Pradesh Rules under the Registration Act, 1908 (for short

„the Rules‟) deals with Appeals and Enquiries. According to

Rule 165(i), an appeal under Section 72 or an application under

Section 73 shall be presented in writing to the Registrar of the

District, or to the Officer-in-charge of the Registrar‟s office

accompanied by copy of the refusal order appealed against and the

original document in respect of which the order was passed.

According to Rule 165(ii), when the document is stated to be in the

possession of some person other than the appellant and the later MSM,J WP_10660_2021

desires time to obtain and produce it or issue of a summons for its

production, the request may be complied with and the application

be admitted pending receipt of the document.

Thus, the petitioner is bound to produce original document

in respect of which the order was passed or in case it is not in

his/her possession, summons shall be obtained under Rule 165(ii).

But, the petitioner did not comply with the mandatory requirement

under Rule 165(i) & (ii) of the Rules and non-compliance of Rule

165 is also one of the ground for dismissal of appeal, as per the

order.

At the same time, Rule 166(iii) of the Rules says that an

appeal or an application shall not be accepted or acted upon if sent

by post. Here, the appeal was admittedly sent by registered post

against the refusal order, as observed in penultimate paragraph of

the impugned Proceedings No.A/798/2018 dated 18.06.2020 and

therefore, it shall be rejected on this ground also.

The other reason for dismissal of the appeal is, that the fee

on appeal is not paid. Thus, the reasons for dismissal of appeal are

not only limitation, but also, non-compliance of Rule 165(i) & (ii),

Rule 166(iii) of the Rules and non-payment of fee payable on the

appeal. Thus, the appeal was not duly filed, thereby the dismissal

of appeal by the second respondent/District Registrar is in

accordance with law.

On overall consideration of entire material on record, it is

evident that the appeal was not properly filed in compliance of

Rule 165(i) & (ii), Rule 166(iii) and non-payment of fee payable on MSM,J WP_10660_2021

the appeal under Section 72 of the Registration Act, so also on

limitation. Hence, the impugned proceedings i.e. Proceedings

No.A/798/2018 dated 18.06.2020 cannot be said to be illegal on

the ground that this order was against the purport of the order in

W.P.No.39047 of 2017 dated 31.10.2018. Though it is contended

that the proceedings impugned in the writ petition i.e Proceedings

No.A/798/2018 dated 18.06.2020 are in violative of the directions;

as the appeal was not considered on merits, in fact, it was not the

direction issued by this Court except to dispose of the appeal filed

by this petitioner in accordance with law after considering the

grounds raised by the petitioner. That does not mean that the

appeal cannot be decided on the ground of limitation and non-

compliance of various provisions of the Act and Rules framed

thereunder.

Another contention of the learned counsel for the petitioner

is that, the Government cannot raise plea of limitation, but plea of

limitation is available to either of the parties, including the

Government being a litigant on par with a private litigant. The

Government may not raise such plea in general, but when such

objection was raised, the second respondent being the quasi

judicial authority has to consider the same and decide the

limitation and other aspects. In case, the appeal is duly preferred

in compliance of the Rules, the dismissal solely on the ground of

technicality i.e. limitation may be impermissible. But, here, the

second respondent dismissed the appeal not only on the ground of

limitation, but also for non-compliance of Rule 165(i) & (ii), Rule

166(iii) of the Rules, so also for non-payment of the fee payable on MSM,J WP_10660_2021

the appeal under Section 72 of the Limitation Act. Hence, I find no

illegality in the proceedings issued by the second respondent

impugned in the writ petition i.e. Proceedings No.A/798/2018

dated 18.06.2020, consequently the writ petition is liable to be

dismissed, as the writ petition is devoid of merits. Accordingly, the

point is answered.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:28.10.2021 SP