- (1.) It appears to me that the Judge is wrong in declining jurisdiction. The Judge puts the matter as a question of authority. He says,--"I have no authority to take evidence." He does not say, I do not think it right to examine witnesses." If section 84 gives the Judge authority to hear witnesses, there has been a clear refusal to exercise jurisdiction. This Court is asked to interfere under section 15 of 24 and 25 Vict., c. 104, and to direct the Judge to bear the petition and take evidence. But it has been said, and properly said, that if the applicant has a remedy by a regular suit to enforce registration, this Court ought not to exercise the power of interference vested in it by section 15. I freely admit this, it there be any such remedy open to the petitioner. But I am of opinion, for reasons given in my decision in Tulsi Sahu v. Mahadeo Das : 2 B.L.R.A.C. 105 that no suit to enforce registration will lie in the civil Court. Under section 36 3, Act XX of 1866, if a person executing a document shall (as in this instance) refuse to admit the fact of execution, but the Registrar shall nevertheless be satisfied of the fact of execution, the Registrar shall register the document." In this case, the Sub-Registrar took no steps whatever to satisfy himself of the fact of execution. The Sub-Registrar had power, under sections 374 and 405 of the Act, to summon witnesses; and in my opinion, be ought to have made some enquiry into the fact of the execution of the deed. Under section 84 of the Act, the District Court Judge has the power to order the Registrar to register a document, and the petitioner, under the section has a right to be heard, in order that he may be able to establish his right to have the document registered. The Judge is authorized to examine witnesses, and the provisions of the Code of Civil Procedure, as to the service of summons, apply. I would direct the Judge to proceed under the provisions of section 84, either by taking evidence himself, or remanding the case to the Sub-Registrar to examine the witnesses, and reverse his order refusing to accept jurisdiction.
(2.) Since writing this decision, my attention has been drawn to a judgment of Mr. Justice Phear, on the original side of this Court, in the case of Brijonath Pyne v. Armala Dasi 3 B.L.R. O.C. 60, in which the learned Judge appears to take the same view as I do. Markby, J.
(3.) The purchaser applied to this Court, and on the 2nd June 1869, Mr. Justice L. S. Jackson and myself granted a rule, calling upon the plaintiff to show cause why the Judge should cot be required to hear the last mentioned application to take the evidence tendered and to give his decision thereon. It was contended for the purchaser that the Judge was wholly wrong in treating this application as an appeal from the prior decisions, and that he ought to have gone into the whole case, and enquired whether the alleged vendor really executed the deed. For the vendor it is contended, first, that, even supposing the Judge was wrong in treating this as an appeal, and refusing to receive evidence, we have no power to correct this error, our powers under section 15 of 24 and 25 Vict., c. 104, not extending to such a case. It is said that the Judge, acting under section 84, is not acting as Judge of a Court subject to our appellate jurisdiction; and that, even if he be so, our power does not extend to compelling him to correct an erroneous interpretation of the law. Secondly, it is contended that the purchaser still has a remedy by an ordinary civil suit, and that, therefore, this Court ought not to interfere under its powers contained in section 15 of the Act referred to, as laid down by Mr. Justice Norman in the matter of A.B. Miller, Official Assignee 6. 1 It appeared that, the vendor not appearing, steps were taken under section 27 of Act XX of 1866, through the Revenue authorities, to enforce his appearance. The vendor after being fined rupees 50, and threatened with more stringent measures, appeared and stated that he had neither executed the deed, nor received the consideration. 2 Act XX of 1866, section 84--"If a Registrar or Registrar-General shall, under section 82, make an order of refusal to register any document referred to in section 29, or if a refusal to register shall have been made under section 15 of Act XVI of 1864, or if he shall, under section 83, on appeal, make an order of refusal to direct the registration of such document, it shall be lawful for any person claiming thereunder, his representative, assign, or agent authorized as aforesaid, within thirty days after the making of such order of refusal, to apply by petition to the District Court, in order to establish his right to have such document registered. The petition shall be in the form contained in the schedule to this Act, or as near thereto as circumstances will permit, and shall be accompanied by copies of the reasons recorded under sections 82 and 83, and the statements in the petition shall be verified by the petitioner in manner required by law for the verification of plaints, and the petition shall, where a stamp is required by law, bear a stamp of eight annas, and may be amended by permission of the Court. The document shall be admissible in evidence on the presentation and hearing of the petition, anything hereinbefore contained to the contrary notwithstanding. The Court shall fix a day for the bearing of the petition not less than two days after the service, next hereinafter mentioned, and shall direct a copy of the petition, with a notice at the foot thereof of the day so filed, to be served on the registering officer and on such other persons (if any) as the Court shall think fit; and the provisions of the Code of Civil Procedure as to the service and endorsement of summons shall apply, mutatis mutandis, to copies of petitions under this section. On the day be fixed as aforesaid, the Court may, if it shall think proper, and if the requirements of the law for the time being in force have been complied with on the part of the petitioner, so as to entitle the document to registration, order such Registrar or Registrar-General to register the document or to direct its registration in the proper manner, and he shall thereupon obey such order, and shall so far, as may be practicable, follow the procedure prescribed in sections 66, 67 and 68, and (provided the document he duly presented for registration within thirty days after the making of such order) the registration pursuant to such order shall take effect as if the document had been registered when it was duly presented for registration to the officer so refusing as aforesaid. Provided that, when the officer presiding over the District Court shall himself as registering officer have made any order appealed against under this section, the petition shall, within sixty days after the making of such order, be presented to the High Court, and the provisions contained in the former part of this section shall, mutatis mutandis, apply to such petition and the order (if any) thereon." 3 Act XX of 1866, section 36.--"Subject to the provisions contained in this section, and in sections 76, 80, 84 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representative , assigns, or agents authorized as aforesaid, appear before the Registering Officer. He shall thereupon enquire whether or not such document was executed by the persons by whom it purports to have been executed, and, in the case of any person appearing as a representative, assign, or agent, satisfy himself of the right of such person so to appear. If all the persons executing the document appear personally before the Registering Officer, and are personally known to him, or if ha be otherwise satisfied that they are the persona they represent themselves to be, and if they all admit the execution of the document; Or, in the case of any person appearing by a representative, assign, or agent, if such representative, assign, or agent shall admit the execution; Or, if the person executing the document shall be dead, and his representative, assign, or agent shall not appear before the Registering Officer, or shall refuse to admit the fact of execution, but such officer shall, nevertheless, be satisfied of the fact of execution; The Registering Officer shall register the document as directed in section 63. The Registering Officer may. in order to satisfy himself that persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one, whether summoned or not under section 37, present in this office." 4 Act XX of 1866, section 37.--"If any person presenting any document for registration shall desire the attendance of any person whose presence or testimony is necessary for the registration of such document, the Registering Officer may in his discretion call upon the Revenue Officers, in whose jurisdiction the person whose attendance is so desired may be, to issue and serve a summons requiring him to attend at the Registration Office, either in person or by duly authorized agent, as in the summons may be mentioned, and at a time named in such summons." 5 Act XX of 1866, section 40.-- "The law in force for the time being as to summons, commissions, and compelling the attendance of witnesses and for their remuneration in suits before civil Courts, shall, save as aforesaid and mutatis mutandis, apply to any summons or commission issued, and any person summoned to appear under the provisions of this Act." 6Norman and Loch 30.06.1869 In Re: In the matter of the petition of A.B. Miller (Official Assignee) One Sheoburt Ram was, on the 29th June 1868, adjudged an insolvent by the Insolvent Court in Calcutta. On the adjudication, Ram Charan Ram deposited, in the Court of the Principal Sudder Ameen of Shahabad, the amount of a decree obtained against him by Sheoburt. This decree had been attached by Ramanand and Takur Alam under a decree obtained by them against Sheoburt; and they applied to the Principal Sudder Ameen of Shababad for satisfaction of their decree oat of the money.;