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WHAT IS SUFFICIENT CAUSE TO CONDONE THE DELAY

In Ramlal, & Chhotelal v. Rewa Coalfields Ltd. [(1962) 2 SCR 762], it was laid down that in showing sufficient cause to condone the delay, it is not necessary that the applicant/appellant has to explain whole of the period between the date of the judgment till the date of filing the appeal. It is sufficient that the applicant/appellant would explain the delay caused by the period between the last of the dates of limitation and the date on which the appeal/application is actually filed. What constitute sufficient cause cannot be laid down by hard and fast rules.

In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC 237], Court held that discretion given by Section 5 should not be defined or crystalized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause' should receive a liberal construction.

In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.

In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006], a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. [(1979) 3 SCR 694] which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy the default in delay was condoned.

In Lala Mata Din v. A. Narayanan [(1970) 2 SCR 90], Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a devise to cover an ulterior purpose. in that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

In State of Kerala v. E.K. Kuriyipe & Ors. [(1981) Supp. SCC 72], it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case.

In Smt. Milavi Devi v. Dina Nath [(1982) 3 SCR 366], it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation.

In O.P. Kathpaliaa v. Lakhmir Singh (dead) & Ors. [(1984) 4 SCC 66], a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.

In Collector, Land Acquisition, Anantrag & Anr. v. Mst. Katiji & Ors. [(1987) 2 SCC 107], a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits.

State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996 SCC (3) 132 The expression "sufficient cause is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of the justice-that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery ( no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties.

In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], this Court had held that the court should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.

In G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer, Bangalore [(1988) 2 SCC 142], it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned.

In Scheduled Caste Coop. Land Owning Society Ltd., Bhatinda v. Union of India & Ors. [(1991) 1 SCC 174], a Bench of three Judges of this Court held that the bona fides of the parties are to be tested on merits and the delay of 1146 to 1079 days was not condoned on the ground that the parties approached the court after decision on merits was allowed in other cases by this Court. Therefore, it was held that it did not furnish a ground for condonation of delay under Section 5.

In Binod Bihari Singh v. Union of India [(1993) 1 SCC 572], it was held that it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be taken by the court in considering sufficing cause for condonation of the delay under Section 5. It was held that when the party has come with a false plea to get rid of the bar of limitation, the court should not encourage such person by condoning the delay and result in the bar of limitation pleaded by the opposite party. This Court, therefore, refused to condone the delay in favour of the party who came forward with false plea.

In M/s. Shakambari & Co. v. Union of India[(1993) Supp. 1 SCS 487], a Bench of three Judges held that delay caused in filing the appeal due to fluctuation in laying down the law was held to be a sufficient cause and delay of 14 days was condoned.

In Ram Krishan & Anr. v. U.P. State Roadways Transport Corpn. & Anr. [(1994) Supp. 2 SCC 507], Court had held that although the story put forward by the applicant for not filing the application for compensation under the Motor Vehicles Act within the period of limitation was not found convincing but keeping in vies the facts and circumstances and cause of justice, the delay was condoned and the appeal was set aside and the matter was remitted to the Tribunal to dispose it on merits.

State Of Haryana vs Chandra Mani & Ors 1996 AIR 1623, 1996 SCC (3) 132 It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the cours or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.

In the decision reported in 2001(9) SCC 106 (Vedabai @ vaijayanatabai Baburoa Patil -vs- Shantaram Baburao Patil & Ors.) the Hon'ble Supreme Court although professed a pragmatic approach to take in such cases but sounded caution to become too liberal as one could found also in the said judgement relevant portion which is reproduced below:- " A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case, no such consideration may arise and such a case deserves a liberal approach. No hard-and-fast rule can be laid down in this regard. The court also to exercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance."

In case reported in 2010(2) SCC 595, the Hon'ble Supreme Court was considering the appeal filed by the State. While Hon'ble Supreme Court repeated that no hard and fast rule could be laid down in deciding such cases, but remanded the matter back to the courts to ascertain, if sufficient cause is made out as would appear from Paragraph-8 of the said which reads as follows: "8. We have considered the respective submission. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by the private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582."

In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, the Court went a step further and made the following observations: “It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.”

In P.K. Ramachandran v. State of Kerala, (1997) 7 SCC 556, Court while reversing the order passed by the High Court which had condoned 565 days delay in filing an appeal by the State against the decree of the Sub- Court in an arbitration application, observed that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.

In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106, the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises.

While deciding whether there is a sufficient case or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).

In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it was held as follows: ....It is axiomatic that decisions are taken by officers/ agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. .....In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants”

Supreme Court in N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 wherein the Apex Court held that the rules of limitation are not meant to destroy the rights of the parties. They are meant only to see that parties do not resort to dilatory tactics but seek their remedy promptly.

CASE LAW ON RESJUDICATA

CASE LAW ON RESJUDICATA

In Narasamma v. Venkataratnam 1965 A.A.P. 12, the High Court of Andhra Pradesh held that the opening words of Section 11 required that the issue as to resjudicata should be tried at the earlier stage of the suit and not at the end along with the rest of the issues. The question of resjudicata is a mixed question of law and fact and can be allowed to be raised at later stage if it does not involve a fresh investigation of facts. Where the defendants omit to plead and prove resjudicata, and the Court investigates and decides matters already concluded between the parties without knowing about such a decision, the decision is not void, for want of jurisdiction. Plea of resjudicata is one which might be, and ought to be, raised as a defence and established, in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise, later decision will prevail and the plea of resjudicata itself will be barred by constructive resjudicata and the later decision (though overlooking the bar of resjudicata alone), will prevail.

Jammu High Court in the case of Anil Khajuria vs Shri Avinash Chander 2005 (2) JKJ 501 Plea of resjudicata does not involve pure question of fact but it involves mixed question of fact and law, and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. Consequently, a party cannot be allowed to raise the plea of resjudicata for the first time in execution proceedings with regard to its maintainability on the basis that the decree is void and inexecutable passed in the suit which is barred by principle of resjudicata when the party has not raised this plea earlier. In that event by application of principle of constructive resjudicata the judgment debtors would be declined to raise such a plea in the execution proceedings.

Prithvichand Ramchand Sablok V. S.Y. Shinde, AIR 1993 SC 1929. It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the court's imprimaturs is affixed to give it the sanctity of an executable court order.The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. …….. If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question. In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata. …………… The character of the con-sent -decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it. ………….. If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature. But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character. Justice A.M. Ahmadi (as His Lordship then was) speaking for the Apex Court, was dealing with the consent decree, where the tenants were required to give the possession to the landlord by 10th October, 1970. By Clause-3 of the consent decree, a specific concession was given to the tenant to pay over the entire amount of arrears of rent, future mesne profits, electricity charges, water charges, the rent of the godown and the expenses of the suit by 10th October, 1970 and in such an eventuality it was agreed that the plaintiff will not execute the decree for possession. The trial Court passed a decree in terms of the compromise. The arrears so calculated worked out to Rs. 3,353.58 ps. as on 10th October, 1970. The tenant, however, paid a sum of Rs. 2,040/- only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. In execution proceedings tenant raised objection as regards executability of the decree. The Executing Court rejected the objections raised by the tenant and ordered issuance of warrant for possession. The appeal preferred by the tenant came to be allowed. The order of the Executing Court was set aside and the prayer for eviction was dismissed. The decree-holder moved the High Court under Article 227 of the Constitution. The Bombay High Court set aside the order of the appellate Court and remitted the matter to the appellate Court with direction to decide the character of the compromise terms on the basis of which eviction was sought. The appellate Court reconsidered the matter and once again allowed the appeal. Against the said order, the decree-holder once again moved the High Court under Article 227 of the Constitution. The High Court considered the various provisions and the propositions of law and ultimately concurred with the appellate Court holding that the eviction of the tenant on the consent terms was correct and it was not required to be interefered with. It was in the aforesaid circumstances that the Supreme Court was approached and the Apex Court made very pertinent observations after elaborate reference to the Scheme of Bombay Rent Act in Para-4 of the reported judgment. The Apex Court thereafter proceeded to observe: It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court's imprimatur is affixed to get it the sanctity of an executable Court order. We must, however, point out that the Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the law vests exclusive jurisdiction in the Court to adjudicate on any matter, e.g. fixation of standard rent, the Court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable. In such a case it is the independent satisfaction of the Court which changes the character of the document from a mere contract to a Court's adjudication which will estop the tenant from contending otherwise in any subsequent proceedings as operate as res judicata. If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invirum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.

The apex court in case of Pulavarthi Venkata Subba Rao & Ors. V. Valluri Jagannadha Rao & Ors. reported in AIR 1967 SC 591 held that the compromise decree is not a decision by the court but sets the seal of the court on the averments of the parties in following words : "The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S. 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law it itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as on a matter which was "heard and finally decided." The decree might have created an estoppel by conduct between the parties; but here, the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment. By that expression, the principle of res judicata is described in English law. There is some evidence to show that the respondents had paid two sums under the consent decree, but that evidence cannot be looked into in the absence of a plea of estoppel by conduct which needed to be raised and tried. The appellants are, however, protected in respect of these payments by the proviso to Cl. (iii) of S. 16 of the Amending Act."

Five-judge Bench of the apex court in case of Sailendra Narayan Bhanja Deo V. The State of Orissa reported in AIR 1956 SC 346. S.R. Das, C.J., states: "... a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case ...."

Supreme Court in the decision reported in Victoria v. K.V. Naik & Ors. (1997 (6) SCC 23). In that decision, the Supreme Court, by interpreting Explanation IV to S. 2(25) and S. 125(3) of the Kerala Land Reforms Act, as amended held that: "If the plea regarding Kudikidappu rights had not been raised, it would operate as constructive res judicata on the principle of "might and ought". If it was taken and rejected, it would operate as res judicata and the same cannot be raised in execution. Even if it was left open, in equity, justice and good conscience, it must not be extended to the mortgagee."

The basis on which the rule of res judicata is founded and its applicability have been succinctly set out in Daryao and others v. State of U.P. And others . AIR 1961 SC 1457 ''The rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical. But the basis on which the said rule rests is founded on consideration of public policy. It is in the interest of public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.'' For the rule of resjudicata to apply it is necessary that the decision arrived at was on merits to be binding on the parties. Further, that the decision is arrived at where in a contest both parties have an opportunity to prove their case. The Court ruled that when writ petition was dismissed in liming on grounds of laches or alternative remedy being available, the said decision shall not operate as res judicata. The Court observed, ''If a writ petition is dismissed in liming and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in liming without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in liming even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed.''

The Supreme Court again in Ferro Alloys Corpn. Ltd. and another v. Union of India and others reported at (1999) 4 Supreme Court Cases 149 held that before any issue is said to be heard and finally decided, the Court considering it has to be shown to have expressly considered such an issue and have decided it one way or the other and such decision should have obtained finality in the hierarchy of proceedings. Then only such an issue can be said to be heard and finally decided between the parties.''

Decision of the Supreme Court in the case of Sheodan Singh V. Daryao Kunvar, reported in AIR 1966 SC 1332, wherein it has been observed as under : "In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of the parties or multifariousness, or on the ground that the suit was badly framed, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate, when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-Fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit"

Decision of the Supreme Court in the case of Shivshankar Prasad Shah and another V. Baikunth Nath Singh, and others, reported in AIR 1969 SC 971, wherein it has been held as under : "Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment debtor of an application filed by him under Section 47, Civil P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed him."

Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, thus : "16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata...."

Supreme Court in Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors., AIR 2000 SC 2301, has held : "...In order to apply the general principle of res judicata Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata."
In Mohanlal Goenka vs. Benoy Kishna Mukherjee & Ors. 1953 AIR 65, 1953 SCR 377 , Supreme Court said that principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. It was a case in which the execution application was made and a notice of that application was served upon the judgment-debtor. No objection was raised to proceed with the execution proceedings resulting in sale of his property. He filed an application for setting aside the sale. The court said: ".....failure to raise such an objection which goes to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata...'

Satyadhyan vs. Smt. Deorajin Debi 1960 AIR 941, 1960 SCR (3) 590 The Court made the following observations which bring out the cases in which the principle of res judicata applies in two stages of the same litigation and an interlocutory order falling in that category where principle of res judicata applies. The Court said: "The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having an earlier stage decided a matter in one way will not allow the parties to re agitate the matter again at a subsequent stage of the same proceedings."

In Arjun Singh vs. Mohindra Kumar 1964 AIR 993, 1964 SCR (5) 946 , the Court said: "Interlocutory orders are of various kinds: some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based.....There are other orders which are also interlocutory, but would fall into a different category, the difference from the once just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are inter locutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O.IX R. 7, Civil Procedure Code, would be an illustration of that type."

In Vithal Yeshwant Jathar vs. Shikandarkhan Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court observed that "it is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties."

In Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007) 13 SCC 53, the order passed by the High Court for closure of cremation ground, in conformity with zonal development plan, had attained finality. This Court has held that any subsequent order passed in ignorance of the order of the High Court which has attained finality is nullity.

In India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd., 2007 (5) SCC 510, this Court has held: "The doctrine of comity or amity required a court not to pass and order which would be in conflict with another order passed by a competent court of law”

U.P. State Road Transport Corporation v. Asstt. Commissioner of Police (Traffic) Delhi [2009(3) SCC 634], wherein it is observed that “a decision is an authority, it is trite for which it decides and not what can logically be deduced therefrom. This wholesome principle is equally applicable in the matter of construction of a judgment. A judgment is not to be construed as a Statute. It must be construed upon reading the same as a whole. For the said purpose, the attending circumstances may also be taken into consideration.”

WHAT TRANSPIRED AT THE HEARING, THE RECORD IN THE JUDGMENT OF THE COURT ARE CONCLUSIVE OF THE FACTS SO STATED

It has to be noted that the statement of as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. If a party thinks that the happenings in Court have been erroneously recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges who have made record to make necessary rectification. That is only way to have the record corrected. It is not open to the appellant to contend before this Court to the contrary. (See State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. (1982 (2) SCC 463), Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (2003 (2) SCC 111), and Roop Kumar v. Mohan Thedani 2003 (6) SCC 595).

In the decision reported in 2004 10 SCC 598, the Hon'ble Supreme Court, in paragraph 9 of the said judgment, has held that where the High Court has specifically recorded to the effect that only two points were urged before it, in order to ascertain as to what transpired in the Court, the record in the judgment of the Court should be taken as a conclusive proof and no one should be allowed to contradict such statement on an affidavit or by other evidence. It was further held that if a party wanted to take a stand that what was recorded was erroneous, the party should approach the concerned Court for making any rectification and it is not open to the party to contend contrary to what has been recorded before the Hon'ble Supreme Court.

In the decision reported in AIR 2003 SC 2418, it was again reiterated in paragraph No.11 that it is not open to a party to turn around and take a plea that no concession was given. which would amount to a case of sitting on the fence, which should not be encouraged. It was again stated that if really there was no concession, the only course open to the party was to move the concerned Court and not by approaching the appellate court.

In the decision reported in AIR 1982 SC 1249, the Hon'ble Supreme Court, while reiterating the said position, however, carved out an exception, which reads as under:-. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
In the decision reported in AIR 1998 SC 1681, it has again been reiterated that a wrong concession on a question of law made by a counsel is not binding on his client and such concession cannot constitute a just ground for a binding precedent. It was pointed out therein that if the appellant in that case had pointed out the true position, the learned single Judge would not have granted relief in favour of the respondent. It was further held that if the counsel had made an attempt to give concession inadvertently or under a mistaken impression of law, it would not be binding on the client and the same cannot any how benefit any party.

The said decision was followed again by the Hon'ble Supreme Court in the decision reported in AIR 2001 SC 2306. In the decision reported in (2004) 3 SCC 628, the Hon'ble Supreme Court had gone one step further and has held that applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law could invariably depend upon the scope and meaning of the provisions and has got to be adjudged not on any concession; that any such concessions would have no acceptability or relevance while determining the rights and liabilities incurred or acquired in view of the axiomatic principle that there can be no estoppel against the statute.

Hon'ble Supreme Court reported in AIR 2001 SC 2306, it is made clear that an admission or concession by a counsel made inadvertently or under a mistaken impression of law will not only bind on his client, but also the same cannot enure to the benefit of the other party.

The principles that emerge from the several decisions of supreme court are framed by madras high court division bench consisting of HONOURABLE Mr. JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE Mr. JUSTICE B.RAJENDRAN in the case of The Deputy Commissioner Of Income ... vs K.S.Suresh, 2009:-
a) Any concession made by a Counsel against the statutory provisions would be unauthorised and any order based on such erroneous concession should be recalled. (AIR 1998 SC 465);
b) A wrong concession on a question of law made by a counsel is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. (AIR 1998 SC 1681);
c) If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party;
d) Courts are not to act on the basis of concessions but with reference to the applicable provisions;
e) Any concession would have no acceptability or relevance while determining the rights and liabilities incurred or acquired in view of the axiomatic principle without exception, that there can be no estoppel against statute;
f) Any wrong concession made by a counsel before the Court cannot bind the parties when statutory provisions clearly provide otherwise;
g) A party may be allowed to revile and an Appellate Court may permit in rare and appropriate cases to resile from a concession made on a wrong appreciation of the law and had led to gross injustice though one may not call in question the very fact of making the concession as recorded in the judgment.

CASE LAW ON REGISTRATION, PENDING REGISTRATION, FRAUDULENT REGISTRATION

JUSTICE R Raveendran in the case of M. Ramakrishna Reddy vs Sub-Registrar, Rajajinagar, AIR 2000 Kant 46, ILR 1999 KAR 2033 In view of the above, when a person who claims to be the owner or a person interested in an immovable property, finds that someone else has executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs. If he is satisfied such sale deed is executed by a person without any title and that the deed is void ab initio, he may even choose to ignore the same and leave it to the person claiming title under such deed to establish his title in appropriate proceedings. A Court of Law has the jurisdiction to declare a document to be void or even cancel a document. But under no circumstances, a person claiming to be the owner of a property or a holder of a property, can require the Registering Authority to cancel the registration of a document or to cancel the entry made in Book No. 1 in regard to a registered document or to delete or remove the entry made in the indexes relating to Book No. 1. The Registering Officer has no such power. Consequently, the question of the Registering Officer deleting any entry either from the Indexes of Book No. 1 or the extracts therefrom contained in the Encumbrance Certificate by holding transaction covered by a registered instrument is illegal or void, does not arise.


JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 It is well-settled that when a document is duly presented for registration (within the time prescribed), if its registration is refused or if its registration is kept pending, and thereafter the document is registered either on the direction of the Registrar or competent Court or on the Sub-Registrar satisfying himself that there is no impediment for registration, the registered document will operate, not from the date of actual registration, but from the date when the deed was executed. This principle can be gathered from the provisions of the Registration Act, 1908 (Sections 47 and 75) and several decisions the earliest of which are that of the Madras High Court in the case of Venkatarama Reddi v. Pillati Rama Reddy, ILR 1916(40) Mad. 204 and of the Privy Council in the case of Chhotey Lal v. Collector of Moradabad, AIR 1922 PC 279 : ILR 1922(44) All. 514. A learned Single Judge of this Court in the case of Azeezulla Sheriff alias Anwar Pasha and Ors. v. Bhab-huthimul, 1972(2) Mys. L.J. 408 : AIR 1973 Mys. 276, held thus: "Sub-section (3) of Section 75, only determines the deemed date of registration in respect of documents compulsorily registered in pursuance of an order made under Section 75(1). Sub-section (3) of Section 75 does not deal with the effect of registration of a document. That topic is dealt with by Section 47 which states that once a document is registered, it shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its -registration. The expression "not from the time of its registration" used in Section 47 makes it clear that the date of registration, whether actual or the deemed date under Section 75(3), has no relevance whatsoever for determining the time from which the registered document operates. Once the document is registered, whether it is on admission of execution under Section 35 or by way of compulsory registration under Part XII of the Act, the provisions of Section 47 are attracted for the purpose of determining the time from which the registered document operates". This was reiterated in the case of Rathnakar v. H.S. Madhava Rao and Ors., 1990(4) Kar. L.J. 541 : ILR 1991 Kar. 2190

JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 When registration of a document is ordered to be kept pending, or when registration of a document is refused, and subsequently such document is ordered to be registered, such registration takes effect as if the document had been registered when it was first duly presented for registration. That would mean that the registration relates back to the date of execution. The well-settled principle is that if there is a competition between registered documents relating to the same property, the document first in order of time has priority over the other, though the former document may not have been registered until after the latter.


JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 The role played by the Sub-Registrar in registering a document is rather limited. He has no power or authority to examine the rival claims as to whether a sale deed presented for registration is really a sale deed or not, nor is he empowered to grant any declarations in regard to binding nature of documents.

Justice B Singh, Justice J Shety In S. Sreenivasa Rao v. The Sub-Registrar (Headquarters), Mysore, ILR 1990 KAR 3740, 1990 (2) KarLJ 258 Court held that if the provisions of the Registration Act and Rules and other laws are complied with, the Sub-Registrar is bound to register the document and no direction can be issued to the Sub-Registrar not to register the document. It was also held that if any person is interested in contending that the registered document is invalid or illegal for any reason, he has to question the validity before the proper forum in appropriate proceedings. …. We also find no provision in the Registration Act, 1908 which obliges the Sub-Registrar to act upon any such direction and/or to investigate at the stage of registration of a document itself, the title of the party executing the document. We are, therefore of the view that if a document is presented for registration by the executant, and in doing so, the executant complies with all the provisions of Registration Act, 1908, it is not open to the Sub-Registrar to refuse registration of the document unless he exercises that discretion pursuant to any provision in the Registration Act, 1908 or any other law or Rule having the force of law. The mere registration of a document is by itself not a proof of its validity, neither does it follow that the executant had title to the property, he seeks to dispose of under the document. Matters such as relating to title have to be decided before the appropriate forum. If any person is interested in contending that any particular document executed and registered under the Registration Act, 1908 is invalid or illegal for any reason whatsoever, he !s certainly at liberty to question the validity of the document, the title of the executant, and such other questions before the proper forum in an appropriate proceeding.”

Rule 145 of the Karnataka Registration Rules, provides thus: "Protests against registration of documents.--The Registering Officer should not entertain any petition protesting against registration of document. Such petitions, when insisted should be received and returned immediately with an appropriate endorse ment and no record should be kept in the office. Since these petitions are not to be filed, their copies cannot be granted".


Justice K.L. Manjunath, J. in the case of Leelavathi vs M. Neelakanta Naidu, Reported in ILR 2006 KAR 4637, 2006 (6) KarLJ 617 …….if any document is registered behind the back of the true owner in a clandestine manner, owner of a property is not expected to go before the Sub-Register' s Office and verify whether any third party has executed a document in respect of his property to a third party. In other words, owner of the property cannot keep a watch or stand before the Sub-Register like a Watch-dog to verify whether any parson has executed any document conveying his property to a third party. From reading of Article 59, the Court has to hold that the limitation run from the date of the knowledge. Therefore, in order to find out the actual date of knowledge, the evidence is required to be recorded by the Trial Court as it is a mixed question of fact and law. The date of knowledge is a question of fact and without there being an evidence, the Trial Court was not justified in dismissing the suit as barred by limitation.

Justice V G Gowda in the case of Sulochanamma vs H. Nanjundaswamy 2001 (1) KarLJ 215 The Sub-Registrar was entrusted with the duty of registering the documents in accordance with the provisions of the Act and he was not authorised to go into the genuineness or otherwise of the documents presented before him. If the documents are bogus or false, the party affected by it will have the right to initiate both civil and criminal proceedings to prosecute the party who tries to have benefit from such document and also to safeguard his right, title and interest. It was not for either the Tahsildar or the Sub-Registrar to express opinion as to the genuineness or otherwise of the documents unless called upon by the Court of law or any other authorised investigating agency. There was no occassion for the Sub-Registrar to refer the document to the Tahsildar when presented for the purpose of registration. Thus, both the Tahsildar and the Sub-Registrar have exceeded their jurisdiction in the matter in submitting his report regarding registration of the document and upon such report the second respondent should not have made an endorsement on the document and refused to register the document by him.

PARTITION DEED WHICH WAS MUTUALLY ACTED UPON CANNOT BE QUESTIONED FOR ITS NON-REGISTRATION 2005 SC

FULL JUDGMENT
Amteshwar Anand v. Virender Mohan Singh & Ors; (2006) 1 SCC 148 Section 17(1) of the Registration Act, 1908 in so far as it is relevant, requires under Clause (b) thereof, registration of "non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property". Sub section (2) of Section 17 creates exceptions to the mandatory requirements of Section 17(1) (b) and (c). One of the exceptions made in Section 17(2) of the Registration Act 1908, is Clause (i). This exception pertains to "any composition deed." In other words all composition deeds are exempt from the requirement to be registered under that Act . The Composition Deed in this case was a transaction between the members of the same family for the mutual benefit of such members. It is not the appellants' case that the agreements required registration under any other Act. Apart from this, there is the principle that Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received benefits under the arrangement . Both the courts below had concurrently found that the parties had enjoyed material benefits under the agreements. We have ourselves also re-scrutinized the evidence on record on this aspect and have found nothing to persuade us to take a contrary view.

LAW AND PROCEDURE IN DEFICIT STAMP DUTY AND IMPOUNDING OF DOCUMENTS EXPLAINED

JUSTICE S. Abdul Nazeer in the case of Sri J. Prakash vs Smt. M.T. Kamalamma And Anr. Reported in AIR 2008 Kant 26, ILR 2007 KAR 4752, 2008 (2) KarLJ 202 has clarified the law on the subject of Stamp Duty and Duty penalty and procedure:- “Section 33 of the Act deals with examination and impounding of instruments. It states that every person having by law or consent of parties authority to receive evidence, and every person incharge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. To impound means, to keep in the custody of the law. Section 34 of the Act deals with a different situation. It states that instruments not duly stamped are inadmissible in evidence. However, such document may be admitted in evidence on payment of duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of rupees five, or, when ten times the amount of proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion. Section 37 of the Act lays down the procedure to deal with the instruments impounded under Section 33, or the instruments admitted in evidence upon payment of duty and penalty under Section 34; or the documents dealt with under Section 36 of the Act. In respect of the documents admitted in evidence upon payment of duty and penalty as provided under Section 34, Section 37 mandates the authority who receives the instrument in evidence and admits such instrument in evidence, to send an authenticated copy of such instrument together with a certificate in writing stating the amount of duty and penalty levied in respect of the said document and send such amount to the Deputy Commissioner or to such person as he may appoint in this behalf. In so far as the impounded document under Section 33 is concerned, Sub-section (2) of Section 37 mandates that the person so impounding an instrument has to send it in original to the Deputy Commissioner.
Section 38 of the Act deals with the power to refund the penalty paid under Sub-section (1) of Section 37 of the Act. It states that when a copy of an instrument is sent to the Deputy Commissioner under Sub-section (1) of Section 37, he may, if he thinks fit, refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.
Section 39 of the Act deals with the power of the Deputy Commissioner to stamp instruments impounded under Section 33 of the Act. It states that when the Deputy Commissioner impounds any instrument under Section 33, or receives any instrument sent to him under Sub-section (2) of Section 37, not being an instrument chargeable with duty of not exceeding fifteen naye paise only or mortgage of crop chargeable under clause (a) or (b) of Section 3 with a duty of twenty-five paise, he shall adopt the following procedures:
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement therein that it is duly stamped, or that is not so chargeable, as the case may be;
(b) if he is of the opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks fit; an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees.”

WHEN THERE WAS NO AGREEMENT BETWEEN THE PARTIES REGARDING ESSENTIAL TERMS OF THE AGREEMENT – NO CONSENSUS AD-IDEM AS SUCH NO VALID CONTRACT TO BE ENFORCED 1990 SC

JUSTICE SAIKIA, K.N. and JUSTICE RANGNATHAN, S. of Supreme Court in the case of Smt. Mayawanti vs Smt. Kaushalya Devi Reported in 1990 SCR (2) 350, 1990 SCC (3) 1 :- The specific performance of a contract is the actual execution of the contract according to its stipula- tions and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipula- tions and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of Course, on the plaintiff. If the stipulations and terms are uncertain and the parties are not ad idem there can be no specific performance, for there was no contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agree- ment. Negotiations thereafter would also be material if the agreement is rescinded. In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant. The jurisdiction of the Court in specific performance is discretionary. When a promise is made in an alternative form and one alternative is impossible to perform, the question whether the promiser' is bound to perform the other or is altogether excused depends on the intention of the parties to he ascer- tained from the nature and terms of the contract and the circumstances of the particular case. The expression 'otherwise pay back the advance and compensation in the same amount' is capable of being inter- preted as payment of the amount as alternative to perform- ance. Of course the amount advanced and the compensation was stipulated to he the same amount. That, however, would not effect the real character of the promise.

LINK TO FULL JUDGMENT: CLICK ME

STAMP DUTY SHOULD BE PAID AS ON THE DATE OF REGISTRATION NOT AS PER THE DECREE VALUATION IN SPECIFIC PERFORMANCE 2008 and 2010 SC

State of Rajasthan v. M/s.Khandaka Jain Jewellers (AIR 2008 SC 509) 2007 (12 ) SCR 105 = 2007 (14 ) SCC 339 The Collector shall determine was the valuation of the instrument on the basis of the market value of the property at the date when the document was tendered by the respondent for registration, and the respondent shall pay the stamp duty charges and surcharge, if any, as assessed by the Collector as per the provisions of the Act. There is a difference between an agreement to sell and a sale. An agreement to sell is not a sale. An agreement to sell becomes a sale after both the parties signed the sale deed. What is relevant in fact is the actual valuation of the property at the time of the sale. The crucial expression used in Section 17 of the Stamp Act, 1899 is "at the time of execution". Therefore, stamp duty on a sale has to be assessed on the market value of the property at the time of execution of sale deed, and not at the time of the prior agreement to sell, nor at the time of filing of the suit. The Stamp Act, 1899 is in the nature of a taxing statute, and it has to be construed strictly; and considerations of hardship or equity have no role to play in its construction. It is true that no one should suffer on account of the pendency of the matter in court but this consideration does not affect the principles of interpretation of a taxing statute. A taxing statute has to be construed as it is. The contingencies that the matter was under litigation and the value of the property by that time shot up cannot be taken into account for interpreting the provisions of a taxing statute.

LINK:- http://www.scribd.com/doc/97890424/Stamp-Duty-Should-Be-Paid-as-on-the-Date-of-Registration-Not-as-Per-the-Decree-Valuation-in-Specific-Performance-2008-Sc 

STATE OF HARYANA & ORS. VS MANOJ KUMAR AIR 2010 SC 1779 = 2010 (3 ) SCR 175 = 2010 (4 ) SCC 350 This was a case where a decree for specific performance of an agreement to sell was granted in favour of the plaintiff and registration was done on the basis of the sale price given in the transfer deed (carried forward from the agreement for sale). Question arose whether stamp duty paid was proper. The Supreme court observed in paragraph 29 that the view of the High Court that stamp duty paid was proper is wrong, If genuineness of the sale price entered into by the buyer and seller cannot be questioned, then in majority of the cases it is likely that the State would ever receive stamp duty according to the circle rate or the Collector rate. The Supreme Court held that no sale deed can be registered for an amount less than the amount notified by the Collector. “In order to ensure that there is no evasion of stamp duty, circle rates are fixed from time to time and the notification issued to that effect. The issuance of such notification has become imperative to arrest the tendency of evading the payment of actual stamp duty. It is a matter of common knowledge that usually the circle rate or the collector rate is lower than the prevalent actual market rate but to ensure registration of sale deeds at least at the circle rates or the collector rates such notifications are issued from time to time. It is not disputed that in the instant case the commercial plot of 788 sq. yards was valued by the circle rate at Rs.4,200 per sq. yard fixed by the Collector, meaning thereby that after the notification, no sale deed could be registered for an amount lesser than Rs.4,200/- per sq.yard. The High Court has not properly construed the observations of the District Collector to the effect that the suit was filed in the civil court with the intention to avoid tax and stamp duty inasmuch as the value of the property as per the circle rate was Rs.33,09,600, on which stamp duty to be paid was Rs.5,13,050/- whereas the stamp duty actually paid was only Rs.31,000/-, therefore stamp duty to the tune of Rs.4,82,050 was payable. This order was upheld by the Commissioner. The High Court while exercising its jurisdiction under Article 227 has set aside the orders passed by the authorities below without any basis or rationale. Apart from the jurisdiction, even what is factually stated in the order of the District Collector as upheld by the Commissioner, is unexceptionable and any interference was totally unwarranted.”

LINK:- http://www.scribd.com/doc/97890188/Stamp-Duty-Should-Be-Paid-as-on-the-Date-of-Registration-Not-as-Per-the-Decree-Valuation-in-Specific-Performance-2010-Sc 


INITIAL ILLEGALITY CANNOT BE CURED BY RESORTING TO ANY OTHER MODE:-

Justice D.V. Shylendra Kumar, in the case of G. Rangaiah vs Govindappa Decided on 19-02-2008 The effect of the provisions of Section 49 of the Registration Act, 1908 and Section 34 of the Karnataka Stamp Act, 1957 is to render illegal an act done contrary to it and such illegality cannot be cured by resorting to any other mode except the very remedial action if any provided under the very statute.

AT THE TIME OF FINAL HEARING COURT SHALL DECIDE WHETHER THE SAID DOCUMENT COULD BE LOOKED INTO FOR COLLATERAL PURPOSES

Justice N.Kumar in the case of K. Anjaneya Setty vs K.H. Rangiah Setty AIR 2002 Kant 387, ILR 2002 KAR 3613, 2002 (4) KarLJ 551 Though Section 49 of the Registration Act prohibits receiving as evidence the documents requiring registration under Section 17 which are compulsorily registerable the proviso to the said section provides for receiving such documents in the circumstances narrated therein. Therefore, it is clear there is no total prohibition for receiving unregistered documents in evidence and it is settled law that an unregistered partition deed could be received in evidence to prove any collateral transaction. Therefore, even though an unregistered document is marked that in no way affects the interest of the parties. Mere marking of the document does not take away the right of the opposite party to contend that such a document cannot be relied upon as it is not registered. Similarly, when the law declares for collateral purposes an unregistered document could be looked into it makes clear that such a document could be marked. Under these circumstances, the proper course for the Courts would be to mark such documents, subject to objections, permit the parties to adduce evidence, instead of putting questions to the lawyers at the time of argument to state for what purpose they are relying on the said document. Thereafter consider the respective contentions at the time of final hearing and then decide whether the said document could be looked into for collateral purposes and whether non-registration of the said document has made it inadmissible in evidence. Therefore, the approach of the Court below cannot be sustained.

WHAT PROCEDURE TO BE ADOPTED WHEN THERE IS OBJECTIONS TO MARKING OF DOCUMENT

Justice Abdul Nazeer, in the case of Smt. Malliga Paneer Selvam vs Sri Raja Sathyanarayana Shetty ILR 2007 KAR 2786, 2007 (5) KarLJ 222 Therefore, the proper procedure to be followed by the Courts after the amendment of the code of Civil Procedure would be as under:
(a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise;
(b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist mat the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall hand over the affidavit containing his/her examination-in-chief to the Court In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowning such affidavit;
(c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by title opposite party;
(d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and there if the objection relates to insufficiency of stamp duty. If the objection is on any other ground, the Court shall follow the procedure laid down in the case of K. Anjaneya Setty v. K.H. Ranganath Setty AIR 2002 Kant 387, ILR 2002 KAR 3613, 2002 (4) KarLJ 551;
(e) If the Court decides to admit the document, then it shall follow the procedure prescribed under Order XIII Rule 4(1) CPC and mark the document.

SECTION 35 OF STAMP ACT AND SECTION 49 OF REGISTRATION ACT, BOTH BAR THE DOCUMENT BEING RECEIVED AS EVIDENCE, THE BAR IS ABSOLUTE UNDER STAMP ACT (UNLESS DEFICIT DUTY AND PENALTY IS PAID) AND THE BAR IS NOT ABSOLUTE UNDER REGISTRATION ACT.

Justice H.N. Nagamohan Das in the case of C.K. Ravi Prasanna vs T.K. Gowramma ILR 2007 KAR 2807, 2007 (5) KarLJ 344 This question came up for consideration before this Court in K. Amarnath v. Smt. Puttamma ILR 1999 KAR 4634, 2000 (4) KarLJ 55 wherein the scope of Section 34 of Karnataka Stamp Act and Section 49 of the Registration Act came up for consideration. The Court held as under: The difference between Section 34 of (he Karnataka Stamp Act and Section 49 of the Registration Act should also be home in mind. Section 34 says "no instrument chargeable with duty shall be admitted in evidence for any purpose, or shall be acted upon, registered or authenticated by...unless such instrument is duty stamped" Subject to the provision enabling the Court to collect the deficit Stamp duty, the bar under Section 34 is absolute and an instrument which is not duly stamped cannot be admitted at all in evidence for any purpose. On the other hand, Section 49 of the Registration Act which deals with the effect of non registration of documents provides that if a document which is required to be registered under law is not registered, then such document shall not affect any immovable property comprised therein, nor can it confer any power to adopt nor can it be received as evidence of any transaction affecting such property or conferring such power. But the proviso to Section 49 provides that an unregistered instrument may be received as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of Section 53A of Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument. For example, if a sale deed is executed on a white paper and is not stamped, it can neither be admitted in evidence nor be used for any purpose. But if a sale deed is executed on requisite stamp paper but is not registered and the executant refuses to admit registration, then the purchaser has a right to file a suit for specific performance, and rely on the sale deed, even though it was not registered, as evidence of the contract for sale. Thus, though both Section 34 of the Stamp Act (corresponding to Section 35 of the Indian Stamp Act) and Section 49 of the Registration Act, both bar the document being received as evidence, the bar is absolute under Stamp Act (unless deficit duty and penalty is paid) and the bar is not absolute under Registration Act, Therefore under Section 34 of the Karnataka Stamp Act there is a bar for a document being received in evidence and the same is absolute unless deficit duty and penalty is paid. Therefore, for any purpose, the document which is not duly stamped is inadmissible in evidence.

DOCUMENT NOT ADEQUATELY STAMPED OR REGISTERED CANNOT BE ADMITTED EVEN FOR COLLATERAL PURPOSE
Hon'ble Supreme Court in Avinash Kumar Chauhan V. Vijay Krishna Mishra - AIR 2009 SC 1489 submitted that the document in question being inadmissible in evidence could not be relied upon even for collateral purpose unless it was adequately stamped and was registered.

WHAT THE LAW SAYS IN SECTION 49 OF REGISTRATION ACT
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. The proviso, however, would show that an unregistered document affecting immovable property and required by the 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 the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs 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 the 1908 Act.

ONCE DOCUMENT IS ADMITTED CANNOT BE QUESTIONED LATER
Apex Court in the case Javer Chand v. Pukhraj Suranareported in AIR 1961 SC 1655, a Constitution Bench judgment. The relevant portion of the report reads to this effect:- "Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. ........... Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders, which are liabe to be reviewed or revised by the same Court or a Court of superior jurisdiction."

ONCE DOCUMENT IS ADMITTED CANNOT BE QUESTIONED LATER

Apex Court in the case Javer Chand v. Pukhraj Suranareported in AIR 1961 SC 1655, a Constitution Bench judgment. The relevant portion of the report reads to this effect:- "Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. ........... Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of appeal or revision to go behind that order. Such an order is not one of those judicial orders, which are liabe to be reviewed or revised by the same Court or a Court of superior jurisdiction."

DEED OF PARTITION OR MEMORANDUM OF PARTITION? ONLY MEMORANDUM OF PAST EVENT IS ADMISSIBLE?

(2004) 11 SCC 391 (C.T.Ponnappa Vs State of Karnataka). “4. ...... previous partition has been attempted to be proved by the document dated 2-4-1996, Exhibit P-46, wherein there is a recital that partition had already been effected by deed dated 31-3-1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. If it was unregistered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46 further shows that apart from the partition effected by deed dated 31-3-1975, parties partitioned their properties at least by the deed dated 2-4-1996, Exhibit P-46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. This document being not a registered one was inadmissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers.”

In Roshan Singh v. Zile Singh 1988 AIR 881, 1988 SCR (2)1106 it is held that-- "It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of Will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and docs not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1)A partition may be effected orally; but it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, Section 49 of the Act will prevent its being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reason of Section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition." It is further held that : "It is also well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document in the instant case can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document was a mere list of properties allotted to the shares of the parties."

TO SUM UP THE LEGAL POSITION
(I)A family arrangement can be made orally.
(II)If made orally, there being no document, no question of registration arises.
(III)If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV)Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V)However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI)Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.
(VII)If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII)Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX)A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act.

WHETHER ORAL PARTITION IS PERMISSIBLE UNDER LAW ?

It is well settled that oral partition of property is a permissible mode of partition which can be adopted by any undivided Hindu family as has been held in Karpagathachi's case (supra) and S. Sai Reddy v. S. Narayana Reddy, (1991)13 S.C.C. .647. Similar view has been expressed by the Supreme Court in Bakhtawar Singh v. Gurdev Singh, (1996)9 S.C.C. 370 and Hans Raj Agarwal v. CIT, (2003)2 S.C.C. 295=A.I.R. 2003 S.C. 2112. In Hans Raj Agarwal's case (supra). The Supreme Court has placed reliance on the view taken by it in the case of Nani Bai v. Gita Bai, A.I.R. 1958 S.C. 706 and also in the case of Roshan Singh v. Zile Singh, A.I.R. 1988 S.C. 881. As far back as in 1958 in Nani Bai v. Gita Bai, (1959 S.C.R. 479) it was held: (A.I.R. 1958 S.C. 706 para 11) "Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary... For partition in the latter sence of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition and is, thus, within the mischief of Section 17(1)(b)." This view has been affirmed in Roshan Singh v. Zile Singh, A.I.R 1988 S.C. 881 at P.885, para 9: "A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it."

KARNATAKA LAND LAWS