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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.VEERAPPA, J.
Jayalaxmi Chandrashekar, W/o K.Chandrashekar – Appellant
Versus
C.S.Shivashankar, S/o C.Srinivas – Respondent
Writ Petition No.56628 of 2018(GM – CPC)
Decided on : 24-04-2019
Specific Relief Act, 1963 - Section 31(2) - Indian Registration Act, 1908 - Civil Procedure Code - Section 151 - Order XXIII - Rule 3 - Permanent injunction - Trial court has no jurisdiction - Petitioner/plaintiff filed a suit for declaration and injunction in respect of suit schedule property more fully described in schedule to plaint - After contest suit came to be disposed in terms of compromise entered into between parties - Thereafter cancellation of Gift Deed in terms of decree was not sent by Court to concerned Sub-Registrar as contemplated under provisions of Section 31(2) of Specific Relief Act, 1963 – Therefore decree holder/petitioner herein was forced to file an application under Section 151 of CPC to send intimation to Sub-Registrar and concerned with regard to cancellation of registered Gift Deed contending that it is mandatory on part of court under Provisions of Section 31(2) of Act to send a copy of instrument to Office of Sub-Registrar in which instrument has been registered containing fact of cancellation – Held, Any person whom a written instrument is void or voidable and who has reasonable apprehension of such instrument if left outstanding may cause him serious injury may sue to have it adjudged void and voidable and court may in its discretion so adjudged it and order it to be delivered up and cancelled - If instrument has been registered under Indian Registration Act, 1908 court shall also send a copy of its decree to officer in whose office instrument has been so registered and such officer shall note on copy of instrument contained in his books the fact of its cancellation - Though it is mandate on part of court to discharge its duty under provisions of Section 31(2) of Specific Relief Act but same has not been done. Therefore, the petitioner/decree holder filed an application along with memorandum of facts under Section 151 of Code of Civil Procedure - Trial court rejected application mainly on ground that it has become functus office - Application filed not seeking any modification direction or withdrawing any admission or decree what is sought is to rectify mistake on part of court - In interest of justice trial court ought to have exercised its powers under provisions of Section 151 of Code of Civil Procedure and rectify its mistake as it is only an administrative action and not a judicial function - In those circumstances functus officio would not arise at all - Because of mistake committed by court parties who come to court with great expectation should not be allowed to suffer inspire of judgment and decree passed in terms of compromise petition - In view of provisions of Specific Relief Act stated supra and in terms of compromise decree admitted by both parties it is duty of Court to send a copy of decree or intimate same to concerned Sub-Registrar as contemplated under Section 31(2) of Act - Writ petition is allowed
ORDER :
Petitioner/plaintiff has filed the present writ petition against the order dated 4.12.2018 passed by IV Addl. Civil Judge & JMFC., Udupi, made in O.S.No.577/2016 (disposed of on 10.9.2018) rejecting the application of the plaintiff, requesting to send intimation with regard to the decree of cancellation of registered Gift Deed to the jurisdictional Sub-Registrar Office Brahmavara.
2. The petitioner/plaintiff filed a suit for declaration and injunction in respect of the suit schedule property, more fully described in the schedule to the plaint. After contest, the suit came to be disposed on 10.9.2018 in terms of the compromise entered into between the parties. Thereafter the cancellation of Gift Deed dated 7.6.2016 in terms of the decree, was not sent by the Court to the concerned Sub-Registrar as contemplated under the provisions of Section 31(2) of the Specific Relief Act, 1963(For brevity hereinafter referred to as ‘Act’). Therefore, the decree holder/petitioner herein was forced to file an application under Section 151 of CPC to send intimation to the Sub-Registrar of Brahmavar and the concerned Tahsildar with regard to the cancellation of the registered Gift Deed contending that it is mandatory on the part of the court under the Provisions of Section 31(2) of the Act, to send a copy of the instrument to the Office of the Sub-Registrar in which instrument has been registered containing the fact of cancellation.
3. The respondent has not filed any objections. The trial court proceeded to reject the application mainly on the ground that the trial court has no jurisdiction to pass order in a disposal matter, as the court become ‘functus officio’. Hence, the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Vyasa Rao K.S., learned counsel for the petitioners contended that the impugned order passed by the trial court rejecting the application filed by the petitioner under Section 151 of CPC is opposed to the mandatory provisions of Section 31(2) of the Specific Relief Act, 1963. As soon as the decree is passed with regard to cancellation of the document, it is the duty of the court to send a copy of the decree to the officer, in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Therefore, he sought to allow the writ petition.
6. Per contra, Sri. Rajaram Sooryambail, learned counsel for the respondent has not disputed the mandatory provisions of Section 31(2) of Specific Relief Act, 1963.
7. Having heard learned counsel for the parties, it is an undisputed fact that the plaintiff has filed the suit for declaration, possession and permanent injunction in respect of the suit schedule property in question. When the matter was posted before the trial court, for enquiry, plaintiff and defendant filed a compromise petition under Order XXIII Rule 3 and Section 151 of the Code of Civil Procedure agreeing the terms and conditions. In view of the compromise entered into between the parties, the trial court decreed the suit in terms of the compromise petition which reads as under:
(ii) that, the suit of the plaintiff is hereby decreed in terms of the compromise petition,
(iii) that, the plaintiff and defendant mutually agreed for cancellation of gift deed dated 07-06-2016 registered as document No.BHV1— 1163/2015-16 in CD No.BHVD 239 of SRO, Brahmavara and intimation shall be sent to SRO, Brahmavara to cancel the said Registered document and directions to dispose to Tahsildar to effect necessary Mutation in the name of the plaintiff in the RTC. The KEB Meter, Panchayat License, Building Door Number and Khata shall be transferred to the name of the plaintiff,
(iv) that, the plaintiff and defendant have agreed that, the plaint schedule property should be sold to the prospective buyer for a highest market va
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