Badar Durrez Ahmed, J. (Oral)

1. This appeal is directed against the order dated 01.10.2013 passed by a learned Single Judge of this court in IA No.20617/2012 in CS(OS) No.2661/2012. The said application was filed by the defendant/appellant herein under Order 7 Rule 11 CPC for rejection of the plaint filed by the respondent/plaintiff. The suit is one for specific performance and injunction.

2. By virtue of the impugned order the said application under Order 7 Rule 11 CPC was dismissed. While doing so the learned Single Judge considered the provisions of Section 17(1A) of the Registration Act, 1908 as also Section 49 thereof. This was the first point urged by the learned counsel for the appellant. The second point was with regard to the provisions of Section 33 and 35 of the Indian Stamp Act and article 23A of Schedule-1A as applicable to Delhi and as amended by the Indian Stamp (Delhi Amendment) Act, 2001.

3. Insofar as the plea regarding the provisions of the Registration Act is concerned, it had been contended by the learned counsel for the appellant/defendant that Section 17(1A) thereof clearly stipulated that, if documents containing contracts to transfer immovable property for consideration falling within Section 53A of the Transfer of Property Act, 1882, are not registered (after 2001) then, such documents shall have no effect for the purposes of Section 53A of the Transfer of Property Act, 1882. It was therefore contended by the learned counsel for the appellant that the agreement dated 05.08.2011 which is sought to be specifically enforced by the respondent/plaintiff would have no effect at all and, therefore, the suit itself cannot be maintained. However, the learned Single Judge rejected this plea by holding that Section 17(1A) of the Registration Act, 1908 would not apply to the facts and circumstances of the present case. It was held that, on the other hand, the provisions of Section 17(2)(v) would be applicable, inasmuch as the agreement to sell did not itself create any right, title or interest in the immoveable property. The learned Single Judge also relied upon the provisions of Section 49 of the Registration Act, 1908 and, in particular, upon the proviso therein to hold that an unregistered document such as the agreement to sell in question which was required to be registered could be received as an evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. In other words, the learned Single Judge was of the view that even if it were to be considered that the agreement to sell in question was to be compulsorily registered under Section 17(1A) of the Registration Act, the same could still be received as evidence of a contract in a suit for specific performance.

4. The learned counsel for the appellant conceded that even compulsorily registerable documents could be received in evidence provided they fell within the four corners of the proviso to Section 49 of the Registration Act, 1908 which reads as under:-

“49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power,

unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

5. However, the learned counsel for the appellant subm