BECHUN SAHU Vs. SYED ALI RASUL

JUDGEMENT

(1.) THIS appeal is directed against an order of remand in a suit under Section 77 of the Indian Registration Act of 1908 to enforce registration of a conveyance. The case for the plaintiff is that the father of the defendant executed the conveyance in question on the 3rd September 1909 that it was presented for registration eight days later, that although notice was issued upon the executant, he did not appear before the Registering Officer, and that finally the Sub- Registrar refused to register the document on the 4th. January 1910. The plaintiff thereupon moved the Registrar on the 17th January 1910. That application, after service of notice on the executant, was dismissed on the 17th February 1910. The present suit was commenced on the 17th March 1910. The defendant contends that the suit is not maintainable under Section 77 of the Indian Registration Ace inasmuch as the plaintiff proceeded under Section 72 instead of Section 73 of the Indian Registration Act. What happened was that the application of the plaintiff to the Registrar was described as one under Sections 71 and 72 of Act XVI of 1908, whereas it ought to have been described as one under Section 73. THIS was clearly an error, because Section 72 applies only to cases where registration has been refused on a ground other than denial of execution. In the case before us, registration was refused by the Sub- Registrar on the ground of denial of execution, because, as laid down in the cases of Radhakissen v. Chooneeloll Dutt 5 C. 445 : 5 C.L.R. 172; Luckhi Narain Khettry v. Satcowrie Pyne 16 C. 189. and Kudrathi Begum v. Najib-un-nessa 25 C. 93 failure on the part of the executant to appear and admit execution is equivalent to denial of execution. The petition to the Registrar could, consequently, have been presented only under Section 73. It is worthy of note that Sub-section (2) of Section 73 requires that an application under the section must be in writing, accompanied by a copy of the reasons recorded under Section 71, and verified by the applicant in the manner required by law for verification of plaints. These requirements are not mentioned in Section 72. In the case before us, the application, though described as one under Section 72, fully complied with these requirements. Consequently, the order of dismissal by the Registrar, though made apparently under Section 72, was in substance an order under Section 76. The Registrar could Lave entertained the application only under Section 73, and could not very well have refused to entertain it merely because, it purported to be under Sections 71 and 72 which obviously had no application, because as Mr. Justice Woodroffe observed in Tribeni Sahu v. Babu Bhagwat Bux Rai 34 C. 1037 : 6 C.L.J. 298 : 11 C.W.N. 1030 it is not to be supposed that a Court, in the administration of justice, will refuse an application, which on the merits it ought to grant and in law can grant, simply because the applicant asks the Court to exercise its admitted powers under a wrong section. On behalf of the appellant, it has been argued, however, that the error was fatal to the validity of the proceedings. We are clearly of opinion that this contention is wholly unfounded and that regard must be had to the substance rather than the form of the proceedings. The facts were all stated in the application to the Registrar, and have been proved in this suit beyond the possibility of dispute. It is now the duty of the Court to ascertain the rights of the parties and do justice accordingly. It would be strange, indeed, if meaningless adherence to technicality were allowed to impede and possibly to defeat the ends of justice; legal procedure was plainly not intended for such a purpose. It may finally be pointed out that whether the order was made under Section 72 or Section 76, the suit would be competent under Sub-section (1) of Section 77, and its scope would depend upon the proved or admitted facts and circumstances, and not upon the erroneous mention of a section of the Statute in the application to the Registrar.

(2.) WE hold accordingly that the suit was improperly dismissed by the Court of first instance, and that its decree has been rightly set aside by the Subordinate Judge. The appeal fails and is dismissed with costs. In view of the fact that there are no merits whatever in the objection which has been so tenaciously advanced throughout these proceedings, we assess the hearing fee at five gold mohurs.