PAWAN KUMAR v. BABULAL SINCE DECEASED

Judgment

[2019] 5 S.C.R. 1141 1141 PAWAN KUMAR v. BABULAL SINCE DECEASED THROUGH LRS. AND ORS. (Civil Appeal No. 3367 of 2019) APRIL 02, 2019 [UDAY UMESH LALIT AND INDU MALHOTRA, JJ.] Code of Civil Procedure, 1908: Or. VII r.11 – Application under – In a suit for declaration of title – Seeking rejection of plaint on the ground that the suit was barred u/s. 4 of Benami Transaction (Prohibition) Act – Trial Court allowing the application rejected the plaint – High Court upheld the order of trial court – On appeal, plea that the case was covered by s. 4(3) of the Benami Transaction Act – Held: The question whether the plaint was barred u/s. 4 of the Act or not could not have been subject matter of assessment at the stage when application u/Or.

VII r.11 was taken up – The matter required fuller and final consideration after the evidence was led by the parties – Application u/Or. VII r.11 is dismissed. Allowing the appeal, the Court HELD : In the present case, the controversy has arisen in an application under Order VII Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Benanmi Transaction Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the Plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject matter of assessment at the stage when application under Order VII Rule 11 CPC was taken up for consideration.

The matter required fuller and final consideration after the evidence was led by the parties. It cannot be said that the plea of the appellant as raised on the face of it, was barred under the Act. The approach must be to proceed on a demurrer and see 1141 A B C D E F G H 1142 SUPREME COURT REPORTS [2019] 5 S.C.R. A whether accepting the averments in the plaint, the suit is barred by any law or not. [Para 13][1151-F-H; 1152-A] Popat and Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510 : [2005] 2 Suppl. SCR 1030 – relied on. Om Prakash and Another v. Jai Prakash (1992) 1 SCC 710 : [1992] 1 SCR 15 – distinguished.