The court emphasized that dismissal under Order 7 Rule 11 requires clear evidence of legal bar, and mixed questions of fact and law necessitate a trial.

JUDGMENT :

(Bibhas Ranjan De, J.)

1. The instant civil revision application has been filed challenging the order dated 16.01.2020 passed by the Ld. Civil Judge (Senior Division) 2nd Court, Hooghly in connection with Title Suit No. 9 of 2018.

Backdrop:-

2. The opposite party herein being the plaintiffs filed a suit before the Ld. Civil Judge (Senior Division) 2nd Court, Hooghly with a prayer for declaration, partition and injunction in connection with the Title Suit No. 9 of 2018 wherein the defendants/revisionist appeared and filed their written statements. In course of the Title Suit, the petitioner filed an application under Order 7 Rule 11 of the Civil Procedure Code (for short CPC) with a prayer for dismissal of the suit being barred by the law of limitation as well as Section 4 of the Benami Transaction Prohibition Act, 1988 (for short Act of 1988).

3. The said application was taken up for hearing by the Ld. Judge and vide the impugned order the Ld. Judge rejected the application filed by the petitioner herein. Being aggrieved and dissatisfied, the petitioner has preferred the instant civil revision application.

Arguments:-

4. Ld. Counsel, Mr. Tanmoy Mukherjee, appearing on behalf of the petitioners has mainly canvassed his arguments on the following two points -

- The opposite party admittedly had the knowledge of execution of the sale deed dated 25.06.1984 but still after expiry of 35 years he preferred the suit which clearly debars it under the Law of Limitation.

- In addition to that, Mr. Mukherjee has vehemently submitted that the principle prayer of the suit with regard to the fact that the subject property was not purchased by the stridhan money of the mother of the plaintiff but it was actually purchased with the money of the Plaintiff and defendant, as a result of which plaintiff and defendant are the real owners of the subject property renders the suit barred under Section 4 of the Act of 1988.

5. In support of this contention, Mr. Mukherjee has relied on a couple of cases which are :-

- R. Rajagopal Reddy Vs. Radmini Chandrasekharan reported in (1995) 2 Supreme Court Cases 630

- Union of India and another vs. Ganpati Dealcom Private Limited reported in (2023) 3 Supreme Court Cases 315

6. In opposition to that, Ld. Counsel, Mr. Angshuman Chakraborty appearing on behalf of the opposite party has submitted that the suit is not barred by limitation as the cause of action only arose in the year 2017 when he first came to know that the subject property was already transferred by the mother of the opposite party in favour of wife of the petitioner (since deceased).

7. Before parting with, Mr. Chakraborty has contended that prayer (E) of the Title suit can be segregated from the rest and has duly supported the order impugned in this revision application. By virtue of which he has tried to make this Court understand that there is no requirement for any kind of interference whatsoever.

Ratio of the cases:-

8. In R. Rajagopal Reddy (supra) the Hon’ble Supreme Court held Section 4 of the Act of 1988 does not operate retrospectively and it only provides that from the date of its coming into operation, no suit, claim or action preferred by the real owner to enforce any right in respect of any property held benami, would lie in any Court.

9. In Ganpati Dealcom (supra) the Hon’ble Apex Court held Section 3 and Section 5 of the Act of 1988 unconstitutional for being manifestly arbitrary, vague and violative of substantive due process.

Analysis:-

10. After adhering to the rival contentions of the parties, I am of the humble view that this Court has to figure out the following two issues:-

Issues

i. Whether provision of Section 4 of the Act of 1988 is applicable in the case at hand.

ii. Whether the suit is barred by the Law of Limitation or not.

11. Before delving into the contentious issues involved in this revision application, I feel it necessary to first discuss about the nitty gritties of Order VII Rule 11 of the CPC. The remedy under Order VII R