Dismissal of a suit on technical grounds whether operate as res judicata to a subsequent statutory suit.

The defendants 1 and 2 in O.S. NO. 94 of 1997 are the revision petitioners herein. The respondents 1 to 3 herein have filed a statutory suit in O.S. No. 94 of 1997 before the Sub-court, Mayiladuthurai under Section 77 of the Registration Act to set aside the order passed by the 4th respondent herein and for other reliefs. The petitioners herein have filed I.A. No. 152 of 2001 to dismiss the suit in limini as not maintainable in law, which was dismissed by the trial court. Aggrieved by the said order, the present revision has been filed.

2. The short facts involved in this case is the respondents 1 to 3 have purchased the suit property under a sale deed dated 16-04-1999 for a consideration of Rs.14 lakhs. The sale deed was presented for registration on the same day namely 16-04-1999. The respondents 1 to 3 have also paid the deficit stamp duty of Rs.78,000/- in addition to Rs.90,000/- which was already paid by way of stamp papers in which the sale deed was typed. The respondents 1 to 3 have also paid Rs.14,000/- towards registration charges. The petitioners have also signed relevant documents for registration. Under Section 230-A of the Income Tax Act, which was in force during the relevant period, the Vendor shall produce income tax clearance certificate if the value of the property sold exceeds Rs.5 lakhs. Corresponding provision was made in the Rules framed under the Registration Act in Rule 162 whereunder the Registrar is empowered to refuse registration when the income tax clearance certificate is not produced.

3. It is alleged by the respondents 1 to 3 that the petitioners have promised to produce income tax clearance certificate within a fortnight, but failed to do so. Thereafter, the 4th respondent has finally granted 15 days time on 09-07-1999 to produce the income tax clearance certificate, in default the sale deed presented was liable to be returned as refused registration. The respondents 1 to 3 have also filed W.P. No. 12561 of 1999 before this Court on 23-07-1999 challenging the order passed by the 4th respondent. This court dismissed the writ petition, however extended the time by two months for production of income tax clearance certificate. It is further alleged by the respondents 1 to 3 that they have filed an application for extension of time before this Court and notice was also issued to the 4th respondent. According to the respondents 1 to 3, the said application is still pending. In the meanwhile, the 4th respondent has passed an order refusing registration of the sale deed on 27-12-1999. Thereafter, the first respondent has filed a statutory suit invoking Section 77 of the Registration Act before the Additional Sub-Judge, Mayiladuthurai. In that suit, the petitioner herein has filed an application in I.A. No. 152 of 2001 praying the Court to dismiss the suit in limini as not maintainable in law, which was dismissed by the trial court.

4. The learned counsel appearing for the petitioners canvassed that the relief sought in the suit was for a mandatory injunction directing the 4th respondent to register the sale deed, which is contrary to the provisions of the Registration Act; that the writ petition No. 12561 of 1999 filed by the first respondent herein was dismissed by this Court as such the suit praying for identical relief is barred by the principles of res judicata; that when the sub-registrar refuses to register the document, an appeal provided under Sections 72 to 76 of the Registration Act, which was not exhausted by the respondents 1 to 3 herein; that the amendment to Section 230-A of the Income Tax Act was made subsequent to the order passed by the 4th respondent herein, which cannot be made use by the respondents 1 to 3 as the same is passed with prospective effect.

5. The learned counsel appearing for the petitioners relied on a decision (Dhulabhai etc., Vs. State of Madhya Pradesh and another) reported in AIR 1969 Supreme Court 78 wherein the Honourable Supreme Court held that a suit