Hazi Khosh Mohamed Sirkar vs Sajibullah Sirkar on 27 May, 1886

Calcutta High Court
Hazi Khosh Mohamed Sirkar vs Sajibullah Sirkar on 27 May, 1886
Equivalent citations: (1886) ILR 13 Cal 264
Author: M A Grant
Bench: Mitter, Grant


Mitter and Grant, JJ.

1. In this second appeal it is contended on behalf of the defendant-appellant that the Munsif s view of Section 77 is correct. Section 77 says, omitting the parts which are not material to the question before us, that where a Registrar refuses to order a document to be registered under Section 76, any person claiming under such document may, within 30 days after1 the making of the order of refusal, institute in the Civil Court a suit for a decree directing the document to be registered. The question, therefore, is whether there was a refusal by the Registrar to order the document to be registered under Section 76. We are of opinion that the mere fact of the applicant not having adduced any evidence before the Registrar does not make his order one not refusing registration within the meaning of Section 76. The absence of evidence to establish the execution of the deed cannot be a test with reference to the question whether there is or not a refusal under Section 76, because there may be oases in which the applicant, after taking all the steps available to him, may fail to compel the attendance of his witnesses, and it would be unreasonable to hold in a case of that description that the applicant was not entitled to the remedy by civil suit under Section 77. It seems to us that where it is found that the application was a bond fide application under Section 73, and where it does not appear that the applicant abandoned his application, he would not be precluded from pursuing his remedy under Section 77 by a civil suit merely on the ground that no evidence having been adduced by him before the Registrar, the Registrar refused registration.

2. therefore, agree with the District Judge in the view he has taken of the provisions of Section 77. The appeal will be dismissed with costs.

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