ORDER

1. No one appears for the respondents despite issuance of SPC.

2. The instant revision under section 115 of the Code of Civil Procedure, 1908 (for short ‘CPC’) assails the order dated 4.10.2017 (Annexure A/1) passed by the Sixth Civil Judge, Class-I, Khandwa in Civil Suit No.12-A/2015, whereby the application under Order VII Rule 11 of CPC filed by the petitioners/defendants has been rejected.

3. The brief facts leading to filing of this case are that the respondents/plaintiffs have filed a suit seeking relief(s) of declaration of title and permanent injunction. In para 2 of the plaint it has been pleaded by the respondents/plaintiffs that the property detailed as Schedule ‘A’ was purchased by late Anokhilal (father of the respondents/plaintiffs and defendant No.2/petitioner No.2 and husband of defendant No.1/petitioner No.1) vide registered sale deed dated 20.10.1984 in the name of his wife (defendant No.1) out of love and affection but entire sale consideration was paid by late Anokhilal. Thus, the respondents/plaintiffs have claimed the right over the said property. Since the suit has been filed in respect of benami transaction, the same is admittedly barred by section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short 'Act'); therefore, the petitioners/defendants filed an application under Order 3 VII rule 11 of CPC seeking dismissal of the suit as barred by section 4 of the Act. Respondents/plaintiffs filed the reply and opposed the prayer. However, the trial Court vide order dated 4.10.2017 rejected the application holding that the suit is saved by section 3(2) of the Act. Being aggrieved, the petitioners/defendants have challenged the order inter alia on various grounds.

4. Shri Avinash Zargar, learned counsel for the petitioners submitted that the suit filed by the respondents/plaintiffs was not maintainable and the plaint was liable to be rejected as the same is barred under the provisions of the Act. He further contended that on bare perusal of provisions of section 4 of the Act makes it clear that the suit filed by the respondents/plaintiffs was prohibited under section 4 of the Act. It was also contended that the suit was hit by Sub-section (1) of section 4 of the Act and the same was not maintainable, therefore, the plaint was liable to be rejected. The application filed by the petitioners/defendants under Order VII rule 11 of CPC has been wrongly rejected by the trial Court, therefore, the impugned order deserves to be set aside and the application needs to be allowed.

5. No one appeared for the respondents. However, in the reply to the application the respondents/plaintiffs have stated that they have got right over the property since the amount of sale consideration was paid by their father Anokhilal and if the property is purchased in the name of his wife/petitioner No.1, then the provisions of the Act would not be maintainable; therefore, the trial Court has rightly rejected the application and the revision deserves to be dismissed.

6. Heard the learned counsel for the petitioners and perused the record.

7. Undisputedly, the Act was enacted in the year 1988 but the bar was created under Sub-section (1) of section 4 of the Act that no claim would be made on the basis of any benami transaction. The bar is to file a suit or to make claim and not that a particular transaction is benami or not. If a suit is filed after coming into force of the Act, claiming any right, title or interest on the basis of any benami transaction, whether it was done prior to coming into force of the Act or after coming into force of the Act, would be barred under Sub-section (1) of section 4 of the Act. With a view to make proper appreciation, Sub-section (1) of section 4 of the Act is reproduced :--

"(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 t