Mahesh Chandra, J.
1. This second appeal arises out of a suit filed by Ham Gopal and Kishan Chand, appellants Nos. 1 and 2 against Jamuna Prasad, Chanda Devi, Ram Kali, Munni, Mithlesh Kumar, Surendra Kumar, Virendra Kumar and Kamendra Kumar respondents, who are the heirs of Jagannath Prasad. Jamuna Prasad is now dead and is represented by Smt. Eataso, Mahesh Chandra, Dinesh Chandra, Ramesh Chandra, Suresh Chandra, Kumari Asha Devi and Kumari Usha Devi respondents 2/2 to 2/7. Smt. Ram Kali is also now dead and her legal representatives are already on the record.
2. On 11-12-1957, an agreement was executed by the appellants on the one hand and Jamuna Prasad and Jagannath Prasad on the other in respect of a Sahan land in district Farrukhabad. It was presented for registration by Jamuna Prasad on 8-1-1958. Jamuna Prasad and Ram Gopal, appellant No. 1 admitted execution, but Jagannath Prasad did not appear before the Sub-Registrar. Registration was thereupon postponed. On 10-1-1958 registration was refused as to Jagannath Prasad executant by the Sub-Registrar. The appellants then presented an appeal to the District Registrar, but it was dismissed on 10-1-1959. On 9-2-1959, this suit was filed by the appellants for directing the respondents to get the document registered, and in case they failed to do so for directing the Sub-Registrar to register the document. Jagannath. Prasad died before the institution of the suit and respondents 1 and 3 to 8 are his legal representatives.
3. In defence, execution of the document by Jagannath Prasad was denied. But it is no longer in dispute that the document was executed by Jagannath Prasad also. Nor is the question of the presentation of the document before the Sub-Registrar within time in dispute now. The only question in controversy now is whether the suit was or was not legally maintainable because an appeal was filed before the District Registrar and no application under Section 73 of the Registration Act was made before him within 30 days of the refusal of the Sub-Registrar. The learned Munsif decreed the suit. The first appellate Court allowed the appeal, reversed the decree of the learned Munsif and dismissed the suit, inasmuch as Jagannath Prasad did not appear before the Sub-Registrar to admit execution of the document. His non-appearance was treated by the Sub-Registrar as a denial of the execution and the appellant should have consequently filed an application before the District Registrar under Section 73 and not an appeal under Section 72 of the Registration Act. Since no application was filed in accordance with the provisions of Section 73 the procedure provided by law was held not to have been complied with, and consequently no suit was held maintainable under Section 77 of the Registration Act.
4. The learned counsel for the appellants contends that in the first place mere non-appearance does not amount to a denial of execution, that the Sub-Registrar himself did not refuse to register on the ground of a denial of execution and that the District Registrar was in error in having treated the order of the Sub-Registrar as a refusal to register on such a ground and should not have dismissed the appeal. The learned counsel for the appellant also contends that even if the order of the sub-registrar be treated as being one on the basis of denial of execution and the appeal could not be treated as an application since it was not verified in accordance with Section 3 of the Registration Act, the order of the District Registrar amounted to a refusal to order registration of a document and that the suit was consequently maintainable under Section 77 of the Registration Act.
5. The document presented for registration was filed in the trial Court, but, after the decree of the trial Court the document was returned to the appellants for presentation to the Sub-Registrar for registration. We considered it necessary to have the document before us and we found that all that the Sub-Registrar said on 8-2-1958 was that the execution had been admitted by Jamuna Prasad and Sri Ram Gopal, who was acting also as the guardian of appellant No. 2. The order dated 8-2-1958 further said that the registration was postponed. This was evidently because Jagannath Prasad had not appeared to admit execution of the document. The order of the Sub-Registrar dated 10-4-1953 is 'Registration refused as to Jagannath Prasad executant.' It is thus evident that the Sub-Registrar's order does not say that the registration was refused because of the denial of the execution by Jagannath Prasad. The Court below has taken the view that non-appearnnce of Jagannath Prasad before the Sub-Registrar amounted in law to a denial of execution. For this the Court below has relied on Anila Debi v. Moni Mohan Mukerjee, AIR 1918 Cal 225. In that case it was held that no appeal lies to the Registrar against the refusal of a Sub-Registrar to register a document upon the wilful failure of the executant of the document to appear before the Sub-Registrar, as such failure amounts to a denial of execution within the meaning of Section 72 of the Registration Act and that in such a case the only procedure open to the party presenting it was to apply to the Registrar under Section 73 to direct registration. In that case Fletcher, J. speaking for the Court observed:--
'The authorities in this Court establish clearly that a wilful failure to appear before a Sub-Registrar amounts to a denial of execution within the meaning of Section 72, Registration Act.'
It appears that Calcutta and Bombay High Courts have repeatedly held that wilful refusal or neglect to attend and admit execution is equivalent to denial of execution within the meaning of the Registration Act. This was the view taken in Radhakissen Rowra Dakna v. Choonee-loll Dutt, (1880) ILR 5 Cal 445 and in Eziekcil and Co. v. Annoda Charan Sen, ILR 50 Cal 180 : (AIR 1923 Cal 35). In the later case it was observed that the phrase 'denial of execution' is not defined but the neglect of the executant of a deed to appear in the registration office in obedience to a summons for enforcing his attendance, has been treated as equivalent to a denial of execution within the meaning of Section 35. Farran, J. in re Shaik Abdul Aziz, (1887) ILR 11 Bom 691 followed (1880) ILR 5 Cal 445 and held that the non-appearance of A in pursuance of summons was equivalent to a denial of execution within the meaning of Section 35 of the Registration Act, and that under the provisions of that section the Sub-Registrar was bound to 'refuse to register' the deed.
6. It will appear from the study of Sections 34 and (sic 35) of the Registration Act that Section 34 provides that subject to the provisions contained in this part and in Sections 41, 43, 45, 69, 75, 77, 88 and 89 no document shall be registered under this act unless the persons executing such document, or their representatives, assigns or agents authorised as aforesaid appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26 of the Act. The proviso will however, show that the section proceeds to take into account non-appearance because of an urgent necessity or unavoidable accident, and in cases where the delay does not exceed four months allows registration on payment of a fine not exceeding ten times of the proper registration fee in addition to the fee If any payable under Section 25. Sub-sections (1) and (3) of Section 35 provide for admission and denial of the documents respectively. Sub-section (1) provides for a case where execution is admitted. Subsection (3) of Section 35 provides for those cases in which the execution is denied by the person by whom the document purports to be executed or if such a person appears to the registering officer to be a minor, an idiot, or a lunatic or if any person by whom the document purports to be executed is dead and his representative or assign denies its execution. In such cases the registering officer shall refuse to register the document as to the person so denying, appearing or dead. Sections 72 and 73 do not mention the appearance of a person at all but refer to the denial of execution. The High Courts of Calcutta and Bombay have held that even a non-appearance of the executant may amount to denial of execution if he wilfully refuses or neglects to appear and admit execution in obedience to a summons for that purpose. They proceeded on the basis that it would defeat the object of the Act if it were held that a person executing a document requiring registration and successfully evading or deliberately disobeying the process of the Registration Office can prevent a document being registered at least for eight months. It is true, there may occur cases in which a person may be willing to appear and in fact proceed to the registration office to appear before the Registrar, to admit execution in obedience to summons but meets with an accident on the way and is consequently unable to appear before him. In such a case, it would not be logical to conclude a denial of execution from his mere non-appearance. That was perhaps the reason why in the leading case of (1880) ILR 5 Cal 445 the words wilful refusal or neglect to attend and admit execution (sic) because of an accident or illness cannot be said to have wilfully refused or neglected to attend and admit execution. It is only in the later decision of the Calcutta High Court in AIR 1918 Cal 225 that the High Court went further and held without saying so definitely that failure of a person to appear in spite of summons amounted to denial of execution. With due respect to their Lordship of the Calcutta High Court I, find myself unable to agree to such a proposition. It would be a question of fact to be determined whether the executant wilfully refused or neglected to appear and admit execution even though he had received summons. It does not follow from his mere non-appearance that he wilfully refuses or neglects to attend and admit execution.
7. In Uttam Singh v. Ratan Devi, AIR 1924 Lah 28 Moti Sagar, J. speaking for the Court observed:--
'We do not see any valid reason why a mere failure to appear, which may be due to an accident or to any other legitimate cause should be held to be wilful, and if the registration is refused, the refusal to register be held to be due to a denial of execution.'
The same reasoning will apply to the case of a neglect to attend and admit execution by a person who is ill and thus physically incapable of attending the registration office or is prevented by accident from doing so. He cannot be said to have neglected to attend the registration office to admit execution. Learned counsel for the respondent pointed out the appellant's allegation in the plaint that in spite of notice Jagannath Prasad did not appear for the registration of the deed. But there is nothing in the plaint whatsoever to show that the appellants admitted that he wilfully refused or neglected to attend the registration office. Nor does the order of the Sub-Registrar show that there was any such wilful refusal or neglect or that he refused registration because of denial of registration either express or implied.
8. In Hayat Ali v. Muhammad Sadiq, (1912) 9 All LJ 756 Griffin, J., referred to the argument in which the learned counsel for the respondent supported the decision of the Court below on the admission that registration of the document was refused on the score of denial of execution. Griffin, J. referred to the order of the Sub-Registrar and observed that it is clear from the order of the Sub-Registrar that the registration was refused not on the ground of denial of registration and held that an appeal consequently lay to the District Registrar and he in his turn having refused to register the document, the plaintiff was under the provisions of Section 77 entitled to file a suit in the Civil Court for the declaration of his right to have the document registered.
9. On reading the order of the Sub-Registrar it is difficult to conceive of what the appellant could do other than what he actually did. The Sub-Registrar merely refused registration as to Jagannath having postponed it once. He did not say that registration was refused on the ground of denial of execution. The obvious course then for the appellant was to go in appeal to the District Registrar. There was no reason for him to infer that Registration had been refused on the ground of denial of execution when the order of the Sub-Registrar itself did not say so. The appeal to the District Registrar cannot be said to have been ill advised, and the District Registrar could not take the order of the Sub-Registrar as one of refusal on grounds of denial of execution when there was nothing on the record to show that there was such a denial or that there was any lawful refusal or neglect to appear and admit execution. No evidence was produced before the Courts below to the effect that there was such a wilful refusal or neglect to appear and admit execution. Nor is there any finding of either of the Courts below to that effect. The District Registrar should not therefore, have held that no appeal lay under Section 72 of the Registration Act and should not have refused to order its registration.
10. The learned counsel for the appellants further contends that even if it be accepted that the appellant should have filed an application and that the appeal was not properly verified as an application and could not therefore, be treated as an application, even then the District Registrar's order is one refusing to order registration and that, consequently, the suit would lie under Section 77 of the Registration Act. In Wali Mohammad Khan v. Ishak Ali Khan, AIR 1931 All 507 (FB) it was held by a Full Bench of this Court that omission to comply with the provisions regarding presentation of plaint is a mere irregularity and not an absence of jurisdiction, which can be cured if the plaintiff has acted in good faith. It was further held that the absence of signature or verification or for the matter of that presentation on the part of some of the plaintiffs did not affect jurisdiction of the Court. Obviously, even if the plaint or an application is not properly verified or presented the Court has the jurisdiction to exercise its discretion to allow or to refuse proper verification by the plaintiff or the applicant. If it allows proper verification, it cannot be said to have acted beyond its jurisdiction. It has power to exercise discretion rightly or wrongly in whatever manner. Whether the discretion to refuse to allow verification is exercised rightly or wrongly it is an order refusing to treat the appeal as an application and thus amounting to a refusal to order registration. A suit under Section 77 would, therefore, be maintainable. This was also the view taken in AIR 1924 Lah 28. As mentioned already, the execution of the document by the appellants and Jagannath Prasad and Jamuna Prasad Is already admitted. The District Registrar was, therefore, in error in (sic. not) ordering the registration of the document.
11. The appeal is, therefore, allowed with costs throughout. The decree of the Court below is set aside and that of the trial Court is restored.