Tahir Khan vs Monesh Kataria
2023 Latest Caselaw 17072 MP

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                           IN THE          HIGH COURT             OF MADHYA PRADESH

                                                      AT I N D O R E
                                                           BEFORE
                                        HON'BLE SHRI JUSTICE PRANAY VERMA

                                              MISC. PETITION No. 6299 of 2022

                          BETWEEN:-
                             TAHIR KHAN S/O IBRAHIM KHAN, AGED ABOUT 53
                             YEARS, OCCUPATION: FARMER 53, ST. JOSEPH
                          1.
                             CONVENT SCHOOL, SHERANIPURA, RATLAM
                             (MADHYA PRADESH) - 457001
                             MID INDIA INFRASTRUCTURE PVT. LTD THROUGH
                             ITS AUTHORISED SIGNATORY NIKHIL SUNDRANI
                             S/O MANOJ, AGED ABOUT 31 YEARS, OCCUPATION:
                          2.
                             BUSINESS, ADD FLAT NO. 403, 28 KALPANA LOK
                             COLONY, KHAJRANA INDORE (MADHYA PRADESH)
                             - 457001
                                                                                     .....PETITIONERS
                          (BY SHRI UTKARSH JOSHI - ADVOCATE)
                          AND
                             MONESH KATARIA S/O RAJENDRA, AGED ABOUT 29
                             YEARS,  OCCUPATION:    BUSINESS,  ADD.  49
                          1.
                             NAGARVAS, RATLAM 457001 (MADHYA PRADESH) -
                             457001
                             THE STATE OF MADHYA PRADESH THROUGH
                          2.
                             COLLECTOR RATLAM (MADHYA PRADESH) - 457001
                                                                                    .....RESPONDENTS
                          (BY SHRI RISHI AGRAWAL - ADVOCATE FOR RESPONDENT NO.1.)
                          _________________________________________________________________
                          Reserved on       : 19.07.2023
                          Pronounced on     : 13.10.2023
                          _________________________________________________________________
                                This petition having been heard and reserved for orders, coming on for
                          pronouncement this day, the court passed the following:
                                                            ORDER

This petition under Article 227 of the Constitution of India has been preferred by defendants No.1 and 2/petitioners being aggrieved by the order Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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dated 5.9.2022 passed by the trial Court whereby the application under Order 11 Rule 12 and 14 of the CPC and so also the application under Section 33 of the Indian Stamp Act preferred by defendant No.1 have been rejected.

2. The plaintiff/respondent No.1 has instituted an action against the defendants for specific performance of contract dated 3.6.2018 executed in his favour by defendant No.1, for declaration that the sale deed dated 27.12.2021 executed by defendant No.1 in favour of defendant No.2 is null and void and for permanent injunction restraining the defendants from interfering with his possession over the suit land. The defendants No.1 and 2 have contested the plaintiff's claim by filing their written statement to the same.

3. During course of proceedings before the trial Court defendant No.1 filed an application under Order 11 Rule 12 read with Rule 14 of the CPC for directing the plaintiff to produce his income tax return of the year 2019 and the declarations made in the Income Tax Department and the bank submitting that the agreement to sale on the basis of which suit has been instituted is forged and fabricated and thereunder an amount of Rs.13,00,000/- is alleged to have been paid by plaintiff. The plaintiff objected to the said application which has been rejected by the trial Court by observing that the suit is for specific performance of contract and at this stage, the documents of income tax and the bank statement are not necessary.

4. The defendant No.1 also filed an application under Section 33 of the Indian Stamp Act for impounding the agreement to sale dated 3.6.2018 submitting that the same is not registered and has been executed on stamp paper of Rs.1000/- only hence is deficiently stamped. The plaintiff contested the application by filing his reply to the same. The application has been rejected by the trial Court by observing that in agreement to sale there is no recital of delivery of possession which fact has been stated by defendant No.1 himself in his application under consideration hence the same was required to Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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be and is written on stamp paper of Rs.1000/- which is sufficient.

5. Learned counsel for defendants 1 and 2 has assailed the impugned order submitting that the agreement to sale is unregistered and insufficiently stamped. The same has been executed in respect of property worth Rs.30,00,000/- upon payment of earnest money of Rs.13,00,000/-. This factum has been denied by defendants No.1 and 2 hence discovery and production of documents regarding the income tax returns and other declarations made before the Income Tax Department and bank by plaintiff is necessary. The provisions of Order 11 Rule 12 and 14 have not been properly appreciated by the trial Court. The agreement was deficiently stamped and was unregistered though the same was required to be registered hence was wholly inadmissible in evidence. Reliance has been placed on the decision of the Supreme Court in Avinsash Kumar Chauhan V/s. Vijay Krishna Mishra, (2009) 2 SCC 532 and Arvind Kumar Jain V/s. Awnish Saxena & Anr., (2014) 4 MPLJ 350, and of this Court in Sneh Farms and Agro Products Ltd., Indore & Anr. V/s. Pankaj Agrawal & Anr., (2014) 4 MPLJ 333, Manish Singh Malukani & Ors. V/s. Hari Prasad Gupta & Anr., Writ Petition No.7581/2017 decided on 4.7.2022, Narbada Prasad Agrawal V/s. Tarun Bhawasar, (2009) 1 MPLJ 176, Mukesh Kumar V/s. Kulvinder Singh (dead) through LR's & Ors., (2021) 3 MPLJ 448, of the Allahabad High Court in Smt. Dilwati Devi V/s. Commissioner, Varanasi & Anr., AIR 2000 ALL 344 and of the Punjab and Haryana High Court in Bikram Singh V/s. Charanjeet Singh, Civil Revision No.3048/2021 decided on 8.4.2022.

6. Per contra, learned counsel for the plaintiff has submitted that the impugned order is perfectly justified. The discretion is with the trial Court to order production or discovery of any document. There was no such necessity hence the trial Court has rightly rejected the application under Order 11 Rule 12 and 14 of the CPC. The agreement to sale was not inadmissible in evidence Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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only for want of registration. The same does not contain any recital as regards delivery of possession hence was not required to be stamped as a conveyance. Reliance has been placed by him on the decision of this Court in Manish and another V/s. Anil Kumar, (2015) 2 MPLJ 645 and Devi Singh Kushwah V/s. Surajbhan Gurjar & Anr. (2017) 1 MPWN 68.

7. I have considered the submissions of the learned counsel for the parties.

8. The provisions of Order XI Rule 12 and Rule 14 of the CPC are as under :-

"12. Application for discovery of documents.

12. Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit:

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

14. Production of documents. - The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C, with such variations as circumstances may require."

9. A perusal of aforesaid Rules reveals that thereunder discretion has been given to the Court for directing discovery of documents or their production. The Court may refuse the prayer if satisfied that discovery or production is either not necessary or not necessary at that stage of the suit. The provisions are not mandatory in nature and it is for the Court to decide in each particular case when the power under the aforesaid rules ought to be exercised. Thus, the Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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contention of defendants No.1 and 2 that the application had to be allowed by the Court below cannot be accepted.

10. The trial Court has observed that since it is a suit for specific performance of contract, direction for production of documents as regards income tax and bank details of the plaintiff are not necessary at this stage. It is purely a discretionary order and does not reveal that the discretion has been exercised by the Trial Court illegally or arbitrarily.

11. In the agreement to sale dated 04.06.2018 there is no recital that possession of the land covered thereunder is being delivered to the intending purchaser. The defendant No.1 himself in his application under Section 33 of the Stamp Act categorically stated that the agreement to sale is without delivery of possession. Thus, now he cannot contend that possession under the agreement to sale was delivered. Since possession was not delivered under the agreement to sale, the same was not required to be stamped as a conveyance and the Trial Court has rightly held the same to be properly stamped.

12. Though the agreement to sale is unregistered and as per Section 17(f) of Indian Registration Act the same was required to be registered but as per the proviso to Section 49 thereof an unregistered document effecting immovable property and required by that Act or the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance. Thus, as per the aforesaid proviso the agreement to sale can be received as evidence of a contract in this suit for specific performance. This aspect of the matter has already been considered by this Court in the case of Manish (supra) in which it has been held as under :-

6......

Section 17(f) of the Act has been inserted by the Registration (Madhya Pradesh Amendment) Act, 2009 with assent of the President by way of notification dated 14th January, 2010. The relevant part of amended Section 17 of Act reads as under:

Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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17. Documents of which registration is compulsory- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act, XVI of 1864, or the Indian Registration Act. 1866, or the Indian Registration Act, 1871 or the or this Act came or comes into force, namely:

...................................... ...................................... 17(f) any document which purports or operates to effect any contract for sale of any immovable property."

7. In terms of the above provision an agreement to sale is required to be registered.

8. Section 49 of The Registration Act, which is relevant for the present purpose provides as under:

"49. Effect of non-registration of document required to be registered--

No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 ( 4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered :

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument.

9. Under section 49 of the Act a document required to be registered under section 17 of Act or by any provision of Transfer of Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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Property Act, 1882 cannot be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered, but an exception has been carved out by way of proviso in respect of suit for specific performance to the effect that such a document can be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument.

10. Supreme Court in the matter of S. Kaladevi vs. V. R. Somasundaram and others, reported in 2010(3) MPLJ (S.C.) 500 = AIR 2010 SC 1654 while considering similar issue in respect of an unregistered sale deed filed in a suit for specific performance has held as under :

"The main provision in section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of ` 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to section 49 of 1908 Act."

13. Thus in view of the relevant provisions and the pronouncement as aforesaid, the agreement to sale even though not registered can very well be received as evidence in the present suit which is for specific performance of Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM

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contract. The document is also sufficiently stamped. The Trial Court has rightly held so. The judgment relied upon by the learned counsel for the petitioners are distinguishable on facts and do not help them in any manner.

14. The Court below has hence not committed any error in rejecting the applications filed by defendant No.1. The impugned order has been passed in sound exercise of discretion by the trial Court and no interference in the same is warranted. As a result, the petition being devoid of merits is hereby dismissed.

(PRANAY VERMA) JUDGE

SS/ JC

Signature Not Verified Signed by: SHAILESH MAHADEV SUKHDEVE Signing time: 16-Oct-23 1:11:27 PM