S.P. Mohapatra, J.
1. This is a plaintiff's second appeal against the judgment and decree dated 22nd August 1953 of Sri N.G. Ganguli, District Judge of Cuttack, confirming a decision of the Additional Munsif of Jaipur, arising out of a suit for declaration of title, recovery of possession and for damages to the extent of Rs. 388-11-0.
2. The facts found and which appear from the records are as follows ;
The suit property belongs to defendant No. 1 and the fathers of defendants 2 to 5, The defendants contracted to sell the disputed land in favour of the plaintiff on 16th March 1935 and in pursuance of the said contract a Kabala was executed on 19th March 1935 for a consideration of Rs. 300/-. The defendants however did not get the Kabala registered.
The plaintiff therefore brought Title Suit No. 1123 of 1938 against the defendants which, in substance, was one for specific performance of contract. The plaintiff prayed that the defendants be ordered to get the document registered, failing which the document dated 19th March, 1935 may be registered at the instance of the Court. The suit was decreed ex parte. The decree is Ex. 4 in the present case which is dated 9th August 1938.
It was found that the plaintiff had already paid a sum of Rs. 270/- and the plaintiff was called upon to pay only a sum of Rs. 30/- within 15 days from the date of the decree that is, by 24th August, 1938. It appears, however, the plaintiff did not pay the amount, but on 14th September 1938 a petition was filed on behalf of the plaintiff for extension of time.
The Court in allowing the petition extended time till 2nd November 1938 and the balance consideration of Rs. 30/- was, in obedience of the order, deposited on 26th October, 1938. A notice was issued on the defendants to get the Kabala registered. The defendants did not appear. The Kabala was sent to the Sub-Registrar for registration. But the Sub-Registrar refused to register it as it was already barred by time for registration. The Court, therefore, executed a fresh Kabala which was eventually registered, the registered Kabala being dated 16th January, 1940.
It appears further that the plaintiff had brought Money Suit No, 410 of 1946 claiming damages to the extent of Rs. 380/- and odd on the allegation that the defendants removed the crops forcibly and a decree was passed on 13th November 1937, which is Ex. 6. All the defendants in the present suit were also parties to the previous Suit No. 410 of 1946.
The present suit has been brought for declaration of title and for recovery of possession and for damages on the cause of action that the plaintiff has been dispossessed and the crops grown by the plaintiff had been removed by the defendants.
3. Both the Courts below have dismissed the present suit on the ground that the Court had no jurisdiction to extend the time for payment of the balance of Rs. 30/- by the plaintiff and further that the Kabala executed afresh by the Court on behalf of the defendants which is the basis of the title of the plaintiff is not valid as being without jurisdiction inasmuch as in the previous suit the prayer was for getting the document, already executed by the defendants, registered, and on the refusal of the Sub-Registrar to get that document registered on the ground of limitation, the Court had no further jurisdiction to execute a Kabala on behalf of the defendants. The point taken by the defendants also prevailed on the ground that the previous Suit No. 123 of 1938 was not maintainable under the provisions of the Indian Registration Act.
4. We will take up first the point whether the Court had jurisdiction in, the previous Suit No. 123 of 1938 to extend time. The ex parte decree (Ex. 4) dated 9th August 1938 runs to the effect that the plaintiff is to deposit Rs. 30/- by 24th August 1938 and on the receipt of notice the defendants are to get the document registered failing which the court will get the document registered.
The decree also confirmed the possession of the plaintiff. It is significant to note that in the decree there was no clause that if the plaintiff did not pay the balance consideration of Rs. 30/- out of Rs. 300/- the suit was to stand dismissed. It is further important to note that there was no order of dismissal of the suit.
At the time when the plaintiff put forth the petition for extension of time on 14th September 1938, which was eventually allowed and the time was extended till 2nd November, 1938, in our opinion, the Court had still seisin over the case and had jurisdiction to entertain the petition and to extend time inasmuch as there was no final order by the Court dismissing the suit in which case only his jurisdiction would have ceased.
Moreover as we have indicated above, there being no clause that the suit would stand dismissed if the plaintiff fails to pay the amount within the time fixed, that is, by 24th August 1938, it was still in the powers of the Court to extend time as we have in a few other cases remarked that in a case of that nature when the Court had fixed a time by calling upon the plaintiff to do something and the final order of dismissal was not yet passed, the case might be in a moribund condition but was not certainly dead as the last stroke of the order of dismissal was not given.
The Court was, therefore, still empowered to extend time before the final order was passed that the suit is dismissed. This view appears to be in conformity with the provisions of Section 35 of the Specific Relief Act running as follow:
'Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases, namely,
(c) Where a decree for specific performance of a contract for sale, or of a contract to take lease, has been made, and the purchaser or lesseemakes default in payment of the purchase money or other sums which the Court has ordered him to pay.
In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require. From the aforesaid provisions it is clear, it was open for the defendants to appear on the expiry of the date granted by the Court calling upon the plaintiff to pay a sum of Rs. 30/- and file an application to get the contract rescinded or the suit dismissed, and if on such an application the Court would have passed final order of rescission of the contract or dismissal of the suit, the defence contention must have prevailed that the Court had no further jurisdiction after final order was passed.
5. Mr, Pal, appearing on behalf of the appellant, has, however, relied upon a decision of the Madras High Court reported in Abdul Shaker v. Abdul Rahiman, AIR 1923 Mad 284. The decision of the Bench was of Schwabe, CJ. and of Wallace, J. Their Lordships were of the opinion:
'Where a plaintiff was given a decree for specific performance of a contract to sell on condition or paying a certain amount to defendant within a specified time, the decree is in nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders therein, including in appropriate cases the extension of the time.
The vendor may either file a fresh suit for rescission of the contract or may in the same suit apply to the Court to rescind the contract. The contract is not determined by mere failure of the plaintiff to pay the amount within the specified time.'
The same view was also followed in a subsequent decision of the same High Court reported inRama Bhatlu v. Appavva Bhatlu, AIR 1926 Mad 144. This view was also accepted by a singleJudge of the Calcutta High Court in the case of Abdul Rahim v. Tamijaddin, AIR 1933 Cal 580,While his Lordship was to construe the provisions of Sec. 35 of the Specific Relief Act, his Lordship referred to the decision of the Madras High Court and followed the same.
In our opinion it will be unnecessary to refer to any more decisions as to us the position appears to be clear from the provisions of Section 35 of the Specific Relief Act, as we have quoted above, and from the principles discussed by us. Indeed these cases were for specific performance of contract and in our view the decree passed in suit No. 123 of 1938 was also a decree in a suit which, in substance, is to be construed as one for specific performance of contract.
6. The second question that we will now take up is whether the suit is entertainable in the Civil Court and is not hit by the provisions of the Indian Registration Act. It is to be made clear at the outset that the document was not presented by any of the parties before the Sub-Registrar and there was no occasion for the Sub-Registrar to refuse registration prior to the institution of the suit.
We are inclined to construe that the suit was one for specific performance of contract. The position appears to be clear that there was a contract between the plaintiff and the defendants for sale of land worth Rs. 300/-. A Kabala indeed had already been, executed. But that is nocompletion of the contract as the contract was to confer title on the plaintiff on a completed sale which is only possible by a registered document conveying title.
If the deed was not registered the plaintiff was still entitled to enforce the contract for sale and pray for getting the document registered by way of completing the contract and delivery of title deed in respect of the land which was the subject matter of contract for sale. The equitable jurisdiction of the Civil Court to specifically enforce a contract between the parties was not affected by the provisions of the Registration Act.
In a suit brought under the provisions of the Registration Act the only question to be determined would be to see whether the Kabala in respect of which registration has been refused is a genuine one or not and in a suit of this nature for specific performance the Court may look to various other conditions in order that he may exercise his equitable jurisdiction to enforce such a contract.
The old decisions on the point are no longer good law and we will refer to one or two decisions of the Patna High Court in support of this view of ours. In the case of Jhaman Mahton v. Amrit Mahton, AIR 1946 Pat 62, their Lordships observed:
'Where the Registrar refuses to register a sale-deed it is open to the aggrieved party either to bring a suit for mere registration of the sale-deed under Section 77 or to have recourse to the fuller and more comprehensive remedy provided by ,a suit for specific performance of the contract of sale. The suit for specific performance of the contract of sale is not barred merely because the aggrieved party does not choose to bring a suit under Section 77 within the prescribed time.'
The case before their Lordships of the Patna High Court was a much worse case, because there registration was refused and within the period of limitation no suit was brought under Section 77 of the Registration Act. Still their Lordships found that a suit in the Civil Court was entertainable provided a suit for specific performance of contract was within time and was otherwise permissible in law. Their Lordships followed and clarified the principle enunciated in a previous decision of Uma Jha v. Chetu Mander, AIR 1926 Pat 89. This view has been accepted in a few other cases of our Court and we are inclined to follow this view.
7. The other point requires more careful examination, The point taken by Mr. Dasupta for the respondents is that the decree passed in the previous suit No. 123 of 1938 (Ex. 4) clearly shows that the defendants were called upon, to get the documents already executed registered, failing which the Court would get the document registered.
But there was no prayer nor even any clause in the decree that the Court would execute a fresh document and get it registered; and that the Kabala which is the basis of the title of the plaintiff in the present suit having been executed afresh by the Court it was without jurisdiction and so the plaintiff is not entitled to any remedy.
The point appears to be too technical to prevail in a suit for specific performance of contract. We have already observed that in substance the suit of 1938 is a suit for specific performance of contract for sale and undoubtedly this was an equitable relief to be granted by the Court. The jurisdiction of the Civil Court in granting equitable relief is by far much wider for adjustment of equities of the parties on the basis of just and proper considerations appearing in the case.
The decree passed in the previous suit was uncontested. The Court in the first instance called upon the defendants to get the document already on record registered. The defendants did not. turn up, The Court sent the document to the Registration Office for registration, but eventually it was sent back as it was presented beyond time by then.
The Court therefore in assumption of its equitable jurisdiction executed a fresh Kabala for enforcing 'just and proper rights of the plaintiff as against the defendants on the basis of indisputable and undisputed contract for sale between the parties. In our view, there cannot be any attack on the exercise of such a jurisdiction by the Court in adjustment of rights and equities between the parties in that set of circumstances. We feel emboldened by reference to a Bench decision of the Patna High Court reported in AIR 1926 Pat 89, where it was observed:
'Though independently of Section 77 of the Registration Act a suit to compel registration of a document does not lie, the Registration Act does not touch or affect the equitable jurisdiction possessed by the Civil Court to pass a decree for specific performance by execution and registration of a fresh document where circumstances exist entitling the plaintiff to such a decree.'
It is significant to note that in that case the selfsame point was raised,
'It was then contended that the plaintiff has not asked for a decree for specific performance and that this Court ought not to convert a suit for registration into a suit for specific performance. The argument, in my opinion, is a technical one, and ought not to weigh with us. All the material facts entitling the plaintiff to a decree for specific performance are pleaded. These facts were found in favour of the plaintiff by the learned Munsif and were not challenged before the Subordinate Judge. Finally their Lordship in the second appellate stage concluded:
'The plaintiff is, however, entitled to a decree for specific performance by the execution and registration of a fresh document within three months from the date hereof.'
The final order passed was:
'We allow the appeal, set aside the judgment and decree passed by the Court below and vary the decree passed by the Court of first instance in the manner indicated above. If the defendant should fail to execute and register the document within the time allowed, the Court of first instance will do so on behalf of the defendant.'
In that case, therefore, a fresh Kabala was ordered to be executed by their Lordships of the Patna High Court at the second appellate stage in a suit of the same nature as ours. In our opinion, therefore, the learned Munsif, after notice to the defendants, executed the Kabala on their behalf when the defendants failed to register the document and was acting within jurisdiction to execute a document and get it registered.
8. As we have stated the facts earlier, the present plaintiff brought suit No. 410 of 1946 against these defendants for damages on the cause of action that the defendants had cut and removed the crops grown on the land in dispute by the plaintiff. The plaintiff got a decree and the decree was also confirmed in appeal. In that suit the plaintiff based his claim for damages on the footing that he had perfected his title on the basis of the decree in the previous suit for specific performance of contract; that is suit No. 123 of 1938.
He however asserted that his possession was confirmed in the previous suit and he was continuing in possession. Defendant No. 1, who alone contestedthe suit, put forth the defence only on the ground that the plaintiff was never in possession of the property in dispute in spite of having obtained a decree in the year 1939 and further that the plaintiff, did not raise the crops.
This defence put further in the present suit that the Kabala executed by the Court in pursuance of the decree in Suit No. 123 of 1938 is ultra vires was never taken. In my opinion this plea would have been a substantial plea in order to resist the claim of the plaintiff for damages as if the defence plea on this point had succeeded the plaintiff would be rendered to a position of mere trespasser who could not be entitled to damages.
The defendant not only could take up such a plea but should have. The defendant not having taken such a plea in the previous suit which he ought to have taken he is hit by the principles underlying Explanation IV of Section 11 of the Civil Procedure Code. We may observe, as it appears from Ex. 5 (the judgment in suit No. 410 of 1946, a definite assertion was made by the plaintiff regarding his title on the basis of the decree passed in the previous suit. As such it was the duty of the defendant to controvert that position.
9. The Kabala on the basis of which the plaintiff claims title is of the year 1940. The present suit has been brought on 7-8-1950. The plaintiff manifestly has not only antecedent title but the subsisting title. He is therefore entitled to recover possession. The Courts below have found that the disputed lands are in possession of the defendants. The defendants therefore are liable for mesne profits. The exact quantum of the mesne profits however is to be determined by the trial Court in accordance with law under Order 20, Rule 12, Civil Procedure Code.
10. In conclusion the appeal, therefore, succeeds and is allowed with costs. The plaintiff's suit is decreed. The quantum of damages should be determined by the trial court under the provisions of Order 20, Rule 12, Civil Procedure Code. The plaintiff is entitled to full costs throughout. The judgments and decrees of the Courts below are set aside.
G.C. Das, J.
11. I agree.