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2014 Supreme(Chh) 122
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Vidyut Kumar Nath
Vs.
D.K. Nath
Second Appeal No. 195 of 2003
Decided On: 27.03.2014
For Appellant/Petitioner/Plaintiff:Vimlesh Bajpai, Advocate
For Respondents/Defendant:Malay Shrivastava, Advocate
Headnote:
Civil Procedure Code,1908 - Order 7 Rule11& 11(d) - Order 7 Rule 11(d) - Benami Transactions (Prohibition) Act, 1988 – Section 4,4(1),2(a)(2)(c) ,3(1)(a) & 4 - Transfer of Property – Section 105 - Seeking relief of declaration - Claiming declaration of title - Late had two sons and one daughter -defendant No. 2. married to defendant No. 1 - It is pleaded that late had got allotted on lease shop No. 17, and also got right of occupation therein in name of defendant No. 2. - plaintiffs filed Civil Suit against defendant No. 2 and her husband seeking relief of declaration that suit shop was taken on lease by their father late in name of defendant No. 2 for their business purpose as they were unemployed; and claimed a decree be passed and defendants be restrained from interfering with their peaceful possession in suit shop - Upon being summoned, defendants filed their joint written statement taking principal defence that suit shop was taken on lease by defendant No. 2 from her own income by making payment and lease agreement has also entered with Municipal Corporation, and they filed counter claim and prayed for dismissal of suit and grant of decree of permanent injunction in their favour restraining plaintiffs from interfering with their possession - Defendants also filed an application stating inter alia that plaintiffs civil suit is hit as per plaint allegations, suit shop was taken on lease by late in name of defendant No. 2 and defendant No. 2 has already married prior to the date of lease of suit shop and, therefore, suit claiming declaration of title and permanent injunction in respect of the suit shop claiming to be Benami by plaintiffs against the defendant No. 2 specifically is hit by Section 4(1) of the Act of 1988 and, therefore, the plaintiffs suit is liable to be rejected in exercise of jurisdiction under Order 7 Rule 11(d) of the CPC - Plaintiffs, filed their reply to the said application, stating inter alia that the question whether the suit is hit – Held, Thus, in light of decision of Supreme Court in above referred case, Section 4(1) is prohibitory in nature and seeks to destroy rights of real owner qua properties held benami and in view of finding recorded hereinabove that transaction of lease is a transfer of property so as to attract applicability of Section 4(1) of Act, it is luminously clear that suit filed by plaintiffs seeking decree of declaration of title in respect of shop claiming that it was held by defendant No. 2 as plaintiffs are real owner of suit shop is clearly & evidently hit by Section 4(1) of Act - Thus, trial Court as well as first appellate Court is absolutely and perfectly justified in allowing application under Order 7 Rule 11 of CPC read with Section 4(1) of Act of 1988 and, consequently, dismissing suit - Thus, said findings recorded by both courts below are finding of fact based on material available on record and court do not find it either perverse or contrary to record - Accordingly, appeal fails and is hereby dismissed.
Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered in this plaintiffs' second appeal states as under:
"Whether the Courts below were not justified in rejection of the plaint under Order 7 Rule11 of the C.P.C. on the ground that the suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988?"
[For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.]
The imperative facts required to be noticed for adjudication of this appeal are as under:
(1.1) Late Shri Dhananjai Chandra Nath had two sons namely Vidhut Kumar Nath & Vijay Kumar Nath (hereinafter called as "the plaintiffs") and one daughter namely Sapna Rani Nath -defendant No. 2. Smt. Sapna Rani Nath married to defendant No. 1 - D.K. Nath on 11.5.1984 (hereinafter called as 'defendants'). It is pleaded that late Shri Dhananjai Chandra Nath had got allotted on lease the shop No. 17, Moti Complex from Municipal Corporation, Durg and also got the right of occupation therein in the name of defendant No. 2. On 20.8.2001, the plaintiffs filed Civil Suit No. 19-A/2002 against defendant No. 2 Smt. Sapna Rani Nath and her husband defendant No. 1-D.K. Nath seeking relief of declaration that the suit shop was taken on lease by their father late Shri Dhananjai Chandra Nath in the name of defendant No. 2 for their business purpose as they were unemployed; and claimed a decree be passed and defendants be restrained from interfering with their peaceful possession in the suit shop.
(1.3) Upon being summoned, the defendants filed their joint written statement taking principal defence that the suit shop was taken on lease by defendant No. 2 from her own income by making payment of 1,51,000/- and the lease agreement has also entered with the Municipal Corporation, Durg on 14.9.1988; and they filed counter claim and prayed for dismissal of the suit and grant of decree of permanent injunction in their favour restraining the plaintiffs from interfering with their possession.
(1.4) The defendants also filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure read with Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act of 1988') stating inter alia that plaintiffs' civil suit No. 19-A/2002 is hit by Order 7 Rule 11 read with Section 4(1) of the Act of 1988, as per plaint allegations, the suit shop was taken on lease by late Shri Dhananjai Chandra Nath in the name of defendant No. 2 on 14.9.1988 and the defendant No. 2 has already married prior to the date of lease of suit shop and The Benami Transactions (Prohibition) Act, 1988 has came into force on 19.5.1988 and, therefore, the suit claiming declaration of title and permanent injunction in respect of the suit shop claiming to be Benami by the plaintiffs against the defendant No. 2 specifically is hit by Section 4(1) of the Act of 1988 and, therefore, the plaintiffs' suit is liable to be rejected in exercise of jurisdiction under Order 7 Rule 11(d) of the CPC.
(1.5) The plaintiffs, filed their reply to the said application, stating inter alia that the question whether the suit is hit by Section 4 of the Act; and barred by law has to be examined as a preliminary issue and presently the application under Order 7 Rule 11 of CPC is not maintainable and the same is liable to be rejected.
2. The trial Court, by its order dated 26.07.2002 held that the instant suit filed by the plaintiffs for declaration of title and permanent injunction is hit by Section 4(1) of the Act of 1988 and allowed the application under Order 7 Rule 11(d) of the Code and in consequence thereof dismissed the suit.
3. On appeal preferred by the plaintiffs, the first appellate Court, by it order dated 19.2.2002 concurred with the findings of the trial Court and dismissed the appeal.
4. Feeling aggrieved and dissatisfied with the said order/judgment, the instant second appeal has been filed under Section 100 of
