1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.56628 OF 2018(GM – CPC) BETWEEN :
Jayalaxmi Chandrashekar, Aged 68 Years, W/o K.Chandrashekar, R/At “Shree Laxmi, 3rd Cross, Gopalapura, PO Santhekatte – 576 105, Puttur Village, Udupi District. ... PETITIONER (BY SRI. VYAS RAO K.S., ADVOCATE) AND:
C.S.Shivashankar, 67 Years, S/o C.Srinivas, R/o Dharmashree’, Adarshanagar, Varamballi Village, PO Brahmavar – 576 213, Udupi District. …RESPONDENT (BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.12.2018, PASSED BY THE IV ADDL. CIVIL JUDGE AND JMFC UDUPI, ON THE APPLICATION FILED UNDER SECTION 151 OF CPC IN O.S.NO.577/2016 AT ANNEXURE – A AND ETC., THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 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:
“ i) that, the compromise petition filed by the parties is hereby accepted, 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.BHV-1— 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 value/consideration amount in the presence of the respective advocates and out of the sale consideration amount, the same shall be distributed among the plaintiff and defendant equally. Hence, 50% of the sale consideration amount should got to plaintiff and 50% amount to the defendant. All applicable tax shall be equally bare by both the parties, v) that the possession of the plaint schedule property to be continued with defendant till sale of the property by the plaintiff. Hence, the defendant shall not obstruct the plaintiff to enter into the property, vi) that, the compromise petition annexed to this decree shall form part and parcel of this final decree.
8. In view of the provisions of Section 31(2) of the Specific Relief Act, 1963, it is the duty of the Court to send a copy of the decree to the officer concerned in whose office the instrument has been so registered and such officer shall note on the copy of the instrument containing the book the fact of cancellation which reads as under:
“31. When cancellation may be ordered.- (1) 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 the court may, in its discretion, so adjudged it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908( 16 of 1908), the court shall also send a copy of its 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.
9. Though, it is mandate on the part of the court to discharge its duty, under the provisions of Section 31(2) of the Specific Relief Act, but the same has not been done. Therefore, the petitioner/decree holder filed an application along with memorandum of facts under Section 151 of the Code of Civil Procedure. The trial court rejected the application mainly on the ground that it has become ‘functus offico’. The application filed not seeking any modification, direction or withdrawing any admission or decree, what is sought is to rectify the mistake on the part of the court. In the interest of justice, the trial court ought to have exercised its powers under the provisions of Section 151 of the 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 the mistake committed by the court, the parties who come to the court with great expectation should not be allowed to suffer inspite of the judgment and decree passed in terms of the compromise petition.
10. In view of the of the provisions of the Specific Relief Act, stated supra and in terms of the compromise decree admitted by both the parties, it is the duty of the Court to send a copy of the decree or intimate the same to the concerned Sub-Registrar as contemplated under Section 31(2) of the Act.
11. In view of the above, writ petition is allowed. The impugned order passed by the IV Addl. Civil Judge & JMFC., Udupi, in O.S.No.577/2016, dated 4.12.2018 vide Annexure-A is hereby quashed. The application filed by the petitioner is allowed.
The trial court is directed and send a copy of the decree to the concerned Sub-Registrar as contemplated under Section 31(2) of the Specific Relief Act, 1963 and in accordance with law.
Sd/- JUDGE Psg*