M.Kotteswaran vs A.Prakash
2023 Latest Caselaw 10329 Mad

Citation : 2023 Latest Caselaw 10329 Mad
Judgement Date : 14 August, 2023

Madras High Court

M.Kotteswaran vs A.Prakash on 14 August, 2023

                                                                                   CRP No.2219 of 2019



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 14.08.2023

                                                        CORAM:

                           THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN

                                                 C.R.P.No.2219 of 2019
                                               and CMP No.14358 of 2019

                1.M.Kotteswaran
                2.Meenakumari                                                        .... Petitioners
                                                           Vs

                A.Prakash                                                             ...
                Respondent


                PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
                India against the judgment and decree dated 25.01.2019 in O.S.No.67 of 2018
                on the file of learned Additional District Judge, Dharmapuri.


                                  For Petitioners     : Mr.R.Selvakumar
                                  For Respondent      : Mr.R.Thirugnanam


                                                     ORDER

This Civil Revision Petition arises against an order passed by the learned

Additional District Judge, Dharmapuri in O.S.No.67 of 2018 dated 31.01.2019.

https://www.mhc.tn.gov.in/judis CRP No.2219 of 2019

2. A suit for specific Performance of an agreement of sale dated

10.11.2014 was presented in O.S.No.67 of 2018. To the said plaint, a written

statement was presented, raising several pleas. The learned Additional District

Judge, without an application under Order 14 of Civil Procedure Code, framed

an issue whether a suit for Specific Performance is maintainable on the basis of

an unregistered document. He concluded that the suit for Specific Performance

is not maintainable and therefore, he has dismissed the suit without even a plea

raised by the defendant or an application for rejection of plaint. This issue was

tried in the absence of any evidence. Against the said order, the present revision

is filed.

3. This Court had entertained a doubt as to whether the revision is

maintainable. Mr.R.Selvakumar would point out that the very same issue had

been raised before this Court on 21.06.2019. Thereafter, the matter was listed

before this Court on 04.07.2019. On 04.07.2019, this Court had recorded that

the revision is maintainable.

4. It is pertinent to point out that the Court under the Civil Procedure

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Code has a jurisdiction to frame the issue suo-motu and answer the same.

However, the said issue framed should be put to both sides. Thereafter the

Court should hear the arguments and pass orders. Whether a suit for Specific

Performance can be maintained is not an issue which was raised by the

defendant, but the Court, suo-motu had framed the issue and answered it

against the plaintiff. The entire judgment deals only with maintainability. The

learned Judge could have framed it as a preliminary issue, as required by Civil

Procedure Code. Instead of doing so, he had adopted a very unique procedure of

framing an issue suo-motu and answering the same.

5. The advantage of framing a preliminary issue is that the Court will get

the assistance of both the parties in order to answer the issue. Unfortunately, the

said procedure had not been followed in this case. I would have ignored the

procedural lacuna in this case had it not been for the substantive error that had

been committed by the Court below.

6. Mr.R.Thirugnanam, learned counsel appearing for the respondent

would attempt to sustain the judgment stating that under Section 17(1)(g) of the

Registration Act, any instrument relating to a sale of immovable property above

https://www.mhc.tn.gov.in/judis CRP No.2219 of 2019

the value of Rs.100/- requires registration. I pointed to him the proviso which

was appended to Section 49 of the Registration Act, which reads as follows:-

49. Effect of non-registration of documents required to be 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.]

7. This proviso makes it very clear that even if a document is

unregistered, it can be received as evidence in a contract in a suit for Specific

Performance. If not for Specific Performance also, it can still be received for

collateral purposes. Therefore, the finding of the learned Judge that no suit for

Specific Performance lies on the basis of an unregistered agreement of sale is

erroneous.

8. Similar view had been taken by this Court in the case of R.Ananda

Padmanabhan (deceased) and others vs R.Vadivel Gounder (deceased) and

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Others (2019) 4 MLJ 598 (DB).

9. In the light of the settled position laid down by the Division Bench of

this Court, I am constrained to interfere with the order dated 31.01.2019.