PANDIT BADRI PRASAD Vs. DILA

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff-appellant to secure compulsory registration of a document, the registration of which had been refused by the District Registrar. One Musammat Janki executed a document on the 15th of January 1907, infavour partly of the appellant and partly of a thakurdwra. Under this document she transferred certain property to the appellant and the rest was consecrated to the temple. She died on the 18 of January 1907. On the 15 of May 1907, the very last day allowed for presentation of the document for registration, the appellant appeared before a Sub-Registrar. On the 27 of May, the Sub-Registrar refused to register for certain reasons. The appellant then appealed to the District Registrar who, on the 11 of July 1907, rejected the appeal on the ground that it had been presented out of time, that is, not within the 30 days allowed by law. Thereupon the plaintiff brought the present suit out of which this appeal has arisen. In his plaint paragraph 5 he stated that he had presented his appeal to the District Registrar on the 29 Jane 1907. He now here in his plaint gave the date in which the Sub-Registrar had passed his order of refusal. Among other defences the defendant pleaded that the plaintiff had not complied with the provisions of Secs.72 and 73 of the Registration Act, that he had not presented the document in question within the time prescribed by the law. The Court of first instance dismissed the suit holding that it was bound by the order of the District Registrar rejecting the appeal as being barred by limitation. The lower appellate Court has adopted the same view and has dismissed the appeal. At the hearing of the appeal the plaintiff apparently made a statement before the lower appellate Court to the effect that he had filed his appeal in the District Registrar's office on the 26tli of June 1907 and not on the 29 of June 1907. It is admitted that if the appeal was, as a matter of fact, filed on the 29 of June 1907, it was out of time and the present suit is bound to fail in law of the ruling of this Court in Udit Upathia V/s. Imam Bandi Bibi 24 A. 402 (F.A.) : A.W.N. (1902) 99. It is urged, however, that the view taken by the two Courts below is incorrect and that the plaintiff should be allowed to amend his plaint and to establish by evidence the fact that he filed his appeal before the District Registrar within the time allowed by law. In view of the circumstances of this case, it is unnecessary to decide whether the lower Court has or has not taken a correct view of the ruling above mentioned. But granting that this view was incorrect, we cannot see our way to allowing the appellant at this stage to amend his plaint in the manner suggested. In fact neither in the lower appellate Court did he apply to amend his plaint nor in the Court of first instance. When he appeared in the lower appellate Court it was for the first time suggested that he had filed his appeal against the Sub-Registrar's order of refusal on the 26 of June 1907. His legal representative, who argued his appeal before the District Registrar, has admitted that the plaintiff did not inform him that his appeal had been filed on the 26 of June 1907. The question which the District Registrar had to decide was whether or not the appeal had been filed within time. We think it should be wise to allow the appellant at this late stage alter allegations of fact, which he had put down in his plaint, and duly verified facts, which are altogether consistent with the order of the District Registrar and which must have been within the plaintiff's knowledge when he filed his plaint. On the facts alleged in his plaint, his appeal presented to the District Registrar was not within time. His present suit was, therefore, bound to fail. We dismiss the appeal with costs including in this Court fees on the higher scale.