HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 13796 / 2016

Islam son of late Mustaq, by caste Teli Muslim, aged about 45

years, resident of Nawa, Tehsil Nava, District Nagour.

----Petitioner

Versus

1. Chiraguddin son of Sheikh Chhotu, by caste Teli Muslim,

resident of House No. 1639, Moti Dungari Road, Jaipur.

----Respondent

PROFORMA RESPONDENTS:

2. Smt. Sayra wife of late Mustaq.

3. Saleem son of late Mustaq.

4. Bablu son of late Mustaq.

All by caste Teli Muslim residents of Nava, Tehsil Nawa, District

Nagour.

_____________________________________________________

For Petitioner(s) : SK Dadhich

For Respondent(s) : Mr. Ranjeet Joshi

_____________________________________________________

JUSTICE DINESH MEHTA

Judgment / Order

10/04/2017

By way of the present writ petition, the petitioner has laid

challenge to the order dated 17.10.2016, passed by the Civil

Judge and Judicial Magistrate, Nava, District Nagour, whereby the

agreement dated 25.3.1983 has been taken on record and the

application filed by the petitioner-defendant under Section 49 of

the Registration Act has been rejected.

Facts in brief, appertain to the present case are that the

plaintiff Chiraguddin, the respondent No. 1 herein, filed a suit for

mandatory and permanent injunction, seeking possession of the

(2 of 5)

[CW-13796/2016]

house and recovery of the arrears of rent. During the pendency of

the suit, the plaintiff’s application under Order 7 Rule 14 (3) Code

of Civil Procedure came to be allowed vide order dated

01.9.2016, whereby the agreement dated 25.3.1983 was taken on

record by the Trial Court. After taking of the document on record,

the petitioner-defendant moved an application dated 13.10.2016,

interalia raising objection regarding its admissibility in light of

provisions of Section 49 of the Registration Act, contending

interalia, that the document in question is not admissible in

evidence, sans registeration.

Trial Court rejected the aforesaid application vide its order

dated 17.10.2016 observing inter alia that the document in

question, even without registeration can be used for collateral

purpose. While rejecting the application, the court below has also

mentioned that the applicant has not stated as to what is the

stamp duty payable and under what provisions of law, the

contentious document is inadmissible for the reason of non

payment of the duty.

Learned counsel for the petitioner challenging the order

impugned, contended that the court below has erred in rejecting

petitioner’s application, holding that as the document in question

was being used for collateral purpose, it is admissible in evidence,

as provided in proviso to Section 17 of the Registration Act, 1908.

Mr. Joshi, learned counsel for the respondents invited

attention of the Court towards two vital facts that the agreement

in question was executed on 25.3.1983 and Clause (f)of Section

17 had been inserted in the Registration Act, by way of Rajasthan

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[CW-13796/2016]

Amendment Act, 1989 with effect form 18.9.1989. Based on

these facts, Mr. Joshi, argued that even if the argument of the

petitioner is accepted that the purpose for which the agreement

in question meant to be used or relied upon, is not `collateral

purpose’; then also the petitioner’s application under Section 49

of Registration Act deserved rejection, as the agreement in

question did not require registration at the time of its execution in

1983.

I have heard learned counsel for the petitioner and perused

the material available on record, including the contentious

agreement and the order impugned.

The learned court below while, passing the order under

scrutiny has held that the agreement in question can be read in

evidence, as it was sought to be used for `collateral purpose’; this

reasoning, in considered opinion of this Court is, erroneous and

dese