DEO CHANDAR PRASAD & Ors. v. MANOJ KUMAR & Ors.

was acquired by the plaintiff in the benami name of his mother-in- law. Section 4(1) of the Benami Transaction (Prohibition) Act, 1988 (hereinafter to be referred to as “the Act”) is as follows:-

4. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

Apparently, when an application under Order VII Rule 11 was filed by the defendant-petitioner, all that was only required to be looked into was the averments in the plaint and if on the basis of such reading of the plaint it could have been deciphered that the suit was barred under Section 4 of the Act, the plaint had to be rejected. 2 Unfortunately, the Court below has taken a tangent view. It has gone to examine all the issues but for the aforesaid the main issue. The findings, at the nascent stage of the suit as with regard to avibility and sufficiency of evidence with regard to the property in question being benami is not only speculative but also wholly uncalled for. The Court below infact was only required to look into the averments in the plaint to find out as to whether the provision of Section 4 of the Act was applicable or not in the light of definition of benami property under the Act. If the Court below thereafter would come to a conclusion from the reading of the plaint that it was not possible to hold that the suit property was benami or the relief claimed there was not barred by the Act, it had definitely power and jurisdiction to dismiss the application of the petitioner for rejection of plaint. The Court below however has not undertaken such an exercise and the impugned order does not meet the requirement of the settled principles of Order VII Rule 11 of the Code of Civil Procedure, as was laid down by the Apex Court in the case of Saleem Bhai & Ors.. Vs. State of Maharashtra & Ors. reported in 2003(1) SCC 557. That being so, this Court would set aside the impugned order and remit the matter back to the Court below to decide the matter afresh strictly in terms of Order-VII Rule-II C..P.C. in the light of observation in this order. Accordingly, this civil revision application is allowed only to the extent indicated above. Rsh (Mihir Kumar Jha, J.)