' This appeal is directed against the Judgment and decree passed by both the Courts below dismissing the suit of the appellant for specific performance of the contract of safe on the ground that since the Sub-Registrar as well as the Registrar have not refused to register the document under the relevant provision of the Registration Act, therefore ; the suit is not maintainable.
2. The facts of the case are that the appellant filed a suit for specific performance of the contract for sale of the property in question and in the alternative it was preyed that if relief in that behalf was not liable to be granted then decree for Rs, 1,500 as compensation for the loss suffered by him might be passed.
' The property in question measures 1 marla 219 sq. Ft. And is situated in Tezab Abate, Street No, 12, Lahore. It was transferred permanently in favour of the respondent by the Deputy Settlement Commissioner concerned on l0-4-1965. It uses sold by the respondent in favour of the appellant for consideration of Rs, 1,750 and sale deed in that behalf was also executed on 21-2-1969. This sale deed was liable to be registered within four months of its execution under the law, bat according to the appellant, in spite of having received Rs, 500 as earnest money on 20-1-1969, which fact is admitted in the sale deed itself, the respondent adopted dilatory tactics in order to avoid registration of the document. The appellant, according to him, stressed upon him many a time to get the sale deed registered and receive the remaining amount of sale consideration Rs, 1,250 but the respondent refused to do so. According to the appellant the sale deed in question was submitted by him for compulsory registration before the Sub-Registrar on 21-5-1969 who refused to register the same being barred by time.
3. It is admitted on record that the appellant did not challenge the order of the Sub-Registrar, if any, before the learned Registrar under section 72 of the Registration Act. The learned lower Courts have also found that it has not been proved by the appellant that he ever approached the Sub-Registrar for registering the document. They have, therefore, concluded that in the absence of having recourse to the remedies as provided by sections 71 and 72 of the Registration Act no suit for specific performance of the contract for registration is competent under section 77 of the said Act.
4. According to section 71 of the Registration Act Sub-Registrar can refuse to register a document and against his such order appeal lies to the Registrar under section 2 of the Act. Similarly appeal can be rejected by the Registrar under section 76 of the Act and in that case a person aggrieved against such order can institute a suit for grant of decree directing the Registrar to register the document, if it be duly presented for that purpose within thirty days of the passing of such decree.
The averments as made in the plaint show that the appellant reeks specific performance of the contract for sale and not for registration by the Registrar. He wants direction of the court to the respondent to perform the contract entered into between the parties and then get the document registered. No direction, however, is sought to be made to the Registrar for registering the sale deed. In this view of the matter both the Courts below have failed to distinguish between the suit for specific performance of the contract of sale and suit filed under section 77 of the Registration Act for a direction to the Registrar to register the document. According to law section 77 of the Act does not debar a suit for specific performance of a contract of see if it is otherwise liable to be enforced under the Act. The scope and purpose of a suit in each and even case has to be examined in order to see whether the same is barred under action 77 of the Registration Act. The Registrar before whom a document is presented for registration purpose, is to satisfy himself with regard to its due execution but he can decline to register the same on the ground of executant's denial of its execution and even on other grounds mentioned in sections 21, 22, 23, 28, 32, 34 and 35 of the Act. As mentioned above in the case of refusal by the Sub-Registrar to register the document appeal lies before the Registrar under section 72, who may or may not direct the Sub-Registrar to register the document in the given circumstances of the ease. In the case of his refusal to register the document a suit will be competent under section 77 of the Registration Act for a decree directing the document to be registered.
5. It will thus be seen that the purpose of such suit as mentioned above would be only a direction in the given circumstances of the ease to the Registering car to register the document and the scope and inquiry in such a case will be in context of the powers conferred upon the Registrar by the Registration Act. In such a suit it will be required to be seen whether the document has been executed and whether the requirements of Registration Law have been complied with. The matters with regard to fraud, mire representation, undue influence and otherwise affecting the validity of the document cannot be gone into by the civil Court in such a suit, while in a suit for specific performance of the contract of sale such matters can be duly inquired into and adjudicated upon.
According to law even in the case of refusal of the Registering Officer to register the document would not affect the contract of sale which remains unperformed until the deed of sale is registered.
6. The main purpose of suit for specific performance of contract of sale is to enforce the contract itself by getting a fresh document executed and registered through Court to perfect the plaintiff's title and possession. The nature of the two suits being quite different, it, therefore, cannot be said that in the case of any party having not approached the Registering Officer concerned for the purpose of registration of the document it will not be within its right to file a suit for specific performance of the contract of sale. The sale deed which otherwise stands admitted to have been executed by the vendor will amount to an agreement to sell unless it is registered as sale deed. In the absence of its registration the party aggrieved on account of the refusal of the vendor to get the sale deed registered can file a suit for specific performance of the contract of sale. It will be, however, open to the civil Court to see as to which of the parties is at fault ; whether the vendee who might be Plaintiff in such suit is entitled to specific performance of the contract in the given circumstances of the case.
7. The view expressed above has also been taken in Shah Muhammad v. Inayat Ullah and others (1) and Hazi Goyzuddin and others v. Mohammad Serajul Haq Mia and others (2). It has been held in PLD 1953 Lah. 87 that when
(1) PLD 1953 Lah. 87
(2) PLD 1963 Dacca 326 ' a vendor executes a deed of sale but it remains unregistered and the vendee sues for specific performance of the original contract the question that is to be considered is whether there is a subsisting contract for sale or not = and if the contract be subsisting the vendee has statutory right subject to the provisions of the Specific Relief Act to have the contract performed. It has been further held that the suit cannot be defeated merely because the deed which was executed had not been registered. It has been held that it will have to be decided on the facts of each case whether there is still subsisting contract while the suit cannot be barred by the mere fact that the document already executed remains unregistered. The case law discussed in detail and referred to in PLD 1953 Lab. 87, may not be referred to in this judgment.
' The above case has been followed in PLD 1963 Dacca 326 holding that suit for specific performance of contract of sale, even in the absence of the document having been registered, is competent.
8. In the present case, as mentioned above, the prayer as made in the plaint is for grant of decree for specific performance of the contract of sale with a direction to the respondent to get the document of sale registered. As such on the basis of the prayer as well as other averments made in the plaint the present suit for specific performance of the contract of sale is competent irrespective of the fact whether the Registering Officer has been approached for registering the document under the Registration Act or not.
9. It has been argued by the learned counsel for the respondent that since compensation of Rs, 1,500 has been claimed, therefore, suit for specific performance will not be maintainable.
' I am afraid, this contention has no force. The said prayer has been made only in the alternative and it has been stated that if the Court comes to the conclusion that decree for specific performance cannot be passed then compensatory decree for Rs, 1,500 may be passed in favour of the appellant.
10. As a result of the above discussion, the impugned judgment and decree passed by both the Courts below is hereby set aside and the appeal is accepted with costs. The case is remitted to the learned District Judge, Lahore for being entrusted to the competent Court for decision in accordance with law. The appellant is admittedly in possession of the suit property. His possession will not be disturbed subject to the fresh order to be passed in this behalf by the learned trial Court after hearing the parties.