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TMI Blog1929 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... nacts that the application should be made within thirty days after the making of the order of refusal by the Sub-Registrar. If the terminus a quo is the date when the order was communicated to the plaintiff, the application is in time; but if the thirty days should be computed from the date of the order, the application is a day too late. 2. The District Registrar rejected the application on the ground that it was barred by time. He made his order on the 16th of December and forwarded it to the plaintiff on the 20th and it reached him on the 23rd. The plaintiff filed the suit from which the present appeal arises on the 19th of January, 1927. Section 77 enacts that the party desiring to impeach the order of the Registrar should file a suit within thirty days after the making of an order of refusal. If the starting point is the date of the District Registrar's order, the suit is out of time by four days; if it is the date when the order reached the plaintiff, the suit is well within time. The District Munsif dismissed the suit, holding that it is time-barred. The lower appellate Court took the opposite view and remanded the suit for further trial. 3. I shall now notice brie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stated. That any particular ruling proceeds on the special provisions of any Act makes, in my opinion, no difference. Abdul Ali v.Mirja Khan I.L.R.(1903) B. 8 is a case under Section 77 of the Indian Registration Act and is directly in point. The same rule has been laid down without equivocation in Anna-malai v. Cloete I.L.R.(1883) M.189. Seshamma v. Sankara I.L.R.(1888) M. 1. The Secretary of State for India v. Gopisetti Narayanaswami Naidu I.L.R.(1910) M. 151 and Mahipat v. Lakshman I.L.R.(1900) B.426. The essence of the rule is that the decision should be passed in such circumstances that the parties should have reasonable notice of it. If when a petition is presented or a case is heard, the order is then and there made in the presence of the parties, no further question arises; if the making of the order is postponed, the parties should be given notice of the adjourned date, so that they may be present and hear the decision when passed. If, in these two cases, the party owing to his own fault, does not become aware of the order, it nevertheless takes effect at once. If an order is made without previous notice, it does not become operative until it is communicated. These, in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d behind his back, but prima facie, an order is not so made. Mellor, J., even more pointedly observes: The local authority had, under the Act, an opportunity to show cause and unless they chose not to appear, the order could not have been made in their absence. 14. I may lastly refer to Ex parte Johnson (1863) 32 L.J.M.C. 193: 122 E.R. 354 which recognises the anomaly involved in the position, that a party is bound by an order which he had no reasonable opportunity of knowing. It is, therefore, clear that the view contended for by the learned Advocate-General is opposed to the English and the Indian cases alike. 15. A feeble attempt has next been made to show that the order of the District Registrar rejecting the application as time-barred is not an order of refusal under Section 77. This contention is clearly opposed to Section 76, which makes no distinction between one kind of refusal and another. Whatever be the ground of his decision, the order is one of refusal. What significance can possibly attach to the fact that the ground of refusal was that the application was barred? No case has held that rejection of an application on the ground that it is barred is not an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. The District Registrar held that the application was out of time and rejected it on 16th December, 1926. This order was communicated to the plaintiff on 20th December, 1926. Thereupon the plaintiff instituted this suit under Section 77 of the Registration Act. A suit under this section should be instituted within 30 days after the making of the order of refusal by the District Registrar. The plaint in the present suit was filed on 19th January, 1927, i.e., after 30 days from the date of the order of the District Registrar but within 30 days after it was communicated to him. 19. It was contended by the defendants (1) that the suit having been presented more than 30 days from the date of the order of the District Registrar rejecting the application, was barred by limitation, and (2) that the plaintiff has no right to institute the suit under Section 77 of the Registration Act, as it was not brought on any order of refusal by the Registrar, as the application to the Registrar was thrown out as time-barred. The District Munsif upheld these contentions and dismissed the suit without going into the merits. On appeal the learned Subordinate judge overruled them and remanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question must depend on the special circumstances of each case. If the order of refusal is pronounced in the presence of the parties immediately after inquiry by the Registrar, so that the person concerned knows that his request has been refused, then there can be no doubt that time should be calculated from the date of the order; but if the order was not so pronounced, and the person concerned does not know that his request has been refused, then it would not be just to hold that time should be calculated from the date of the order. How is an aggrieved party to take any action unless he knows that an adverse order has been passed by the Registrar? If the construction contended for by the appellant is accepted, then it is clear that in cases of this kind the party aggrieved may be altogether deprived of the privilege of taking proceedings under Section 73(1) and Section 77 of the Act. It is not contended that the Sub-Registrar and the Registrar pronounced their orders in the presence of the parties after the inquiry was over, or that those officers fixed any day for pronouncing their orders, or gave notice fixing any date for pronouncing them. In these circumstances, it seems to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Till then, though it may be written out, signed and dated, it is nothing but the decision which the officer intends to pass. It is not passed so long as it is open to him to tear up what he has written and write something else. 23. In support of his contention that the time for the suit should be computed from the date of the order, the learned Advocate-General mainly relied on three English cases, The. King v. The Justices of Staffordshire (1802) 3 East 151: 102 E.R. 554. The Queen v. The Justices of Derbyshire (1845) 7 Q.B. 193 : 115 E.R. 461 and The Queen v. Barnet Sanitary Authority (1876) L.R. 1Q.B.D. 558. These cases appear at first sight to support his contention, but, when read in the light of their circumstances, these will not be found to be inconsistent with the view which I have expressed above. 24. In The King v. The Justices of Staffordshire (1802) 3 East 151 : 102 E.R. 554 an order was made under 13 Geo. III, c. 78 for turning part of a highway. By Section 29 of that statute, an appeal is given to the party grieved by any such order or proceeding at the next Quarter Sessions after such order made or proceeding had, etc. It was held that the appeal must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments that the order was made in the presence of the person affected by it. It also appears frond the judgments of Blackburn, J. and Mellor, J., that the persons affected by the order or conviction in such cases always have opportunity of being present at the time when the orders affecting them are made. Blackburn, J., observes thus: Where the appeal is against a rate, the 'cause of appeal' would prima facie be upon notice of the rate, but where the appeal is from any order or conviction, one would certainly, prima facie, say that as soon as the order is made the party has a right to appeal, and is not bound to wait until the order is served. 29. The point is more explicitly stated by Mellor, J., who observes thus: Here the local authority had, under the Act, an opportunity to show cause, and unless, they chose not to appear, the order could not have been made in their absence. ...The cause of appeal begins from the time the order is pronounced. The order is not required to be in writing, it may be a verbal and informal decision, and the party convicted either does know or ought to know the grounds on which the justices have proceeded. 30. In this view, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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