Allahabad High Court
Laxmi Narain vs Smt. Kusum Lata And Another on 1 May, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:80187
Court No. - 7
Case :- SECOND APPEAL No. - 1017 of 2019
Appellant :- Laxmi Narain
Respondent :- Smt. Kusum Lata And Another
Counsel for Appellant :- Rahul Sahai
Counsel for Respondent :- Dinesh Kumar, ,B.D. Pandey,Jitendra Singh,Mata Pher Tiwari,Sukesh Kumar,Sundeep Agarwal,Sushil Kumar Tewari,Vinay Kumar Pandey
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant and learned counsel for the respondents.
2. The present appeal has been preferred by the plaintiff/appellant challenging the judgment and decree dated 31.07.2019 passed by the Additional District Judge, Court No.11, Mathura in Civil Appeal No.130 of 2018 arising out of the judgment and decree dated 09.08.2018 passed by the Additional Civil Judge (Senior Division), Court No.2, Mathura in O.S. No.367 of 2016.
3. The suit has been instituted for the following relief:
"(1) ?? ?? ???????? ?? ????????? ???????? ???? ?? ???? ?? ??? ??????????? ?? ??????? ????? ?? ???? ????? ???? ???? ?? ???? ??????? ?? ???? ?? ?????? ???? ??? ??????? ????? ??????? ??? ??, ??????????? ?? ???? ???? ?? ??????? ??? ??? ?????? ??????? ???? ???
(2) ?? ?? ???????? ?? ?????? ?????????? ?? ???????? ???? ?? ???? ??? ??? ??????????? ?? ??????? ?? ??? ?? ????? ?? ???? ?? ???????????, ???? ?? ???????? ??????? ???? ????, ????? ????? ????? ??????? ?? ??? ?? ???? ??? ??, ??? ???? ?? ?????????? ??????? ??? ??? ????????? ???? ?? ????? ????, ????? ????? ????, ????? ?? ?????? ?? ????? ????, ?????? ??? ???-??? ????, ????????? ????, ????? ?????? ????????? ???? ???? ???? ???? ?????? ?? ???? ?? ????? ?? ?????? ???????? ?? ?????? ????
(3) ?? ?? ??? ?? ???? ???? ?? ??????????? ?? ?????? ?????
(4) ?? ?? ???? ??? ??????, ?? ???????? ???? ?????, ???? ?? ??????????? ?? ??????? ?????? ?? ?????"
4. In the aforesaid suit, application under Order 7 Rule 11 CPC was filed by the defendants/respondents alleging that the suit is barred by Section 4 of the Prohibition of Benami Property Transactions Act, 1988. The trial court found substance in the submission of defendants/respondents, consequently, it allowed the application under Order 7 Rule 11 CPC and rejected the plaint being barred by Section 4 of the Prohibition of Benami Property Transactions Act, 1988. The first appeal preferred by the plaintiff/appellant has also been rejected by the first appellate court vide judgment and decree dated 31.07.2019.
5. The second appeal was admitted by this Court on 23.10.2019 by passing the following order:
"The plaintiff-appellant filed a suit for declaration for declaring him to be the owner in possession of the house in dispute as well as injunction restraining the defendants from interfering in the peaceful possession of the property in dispute. The plaint was rejected under Order 7 Rule 11 of C.P.C. on the ground of Section 4 of the Prohibition of Benami Property Transactions Act, 1988.
The contention of the learned counsel for the appellant is that the plaint itself reveals that the property in dispute was purchased by the plaintiff in the name of defendant no. 1 and she stood in fiduciary capacity for the benefit of the plaintiff. Learned counsel has relied upon the judgements of the Supreme Court in the matter of Marcel Martins Vs. M. Printer and Others reported in AIR 2012 SC 1987 and P. Leelawathi (D) by L.Rs. Vs. V. Shankarnarayan Rao (D) by L.Rs. reported in AIR 2019 SC 1938.
Shri B.D. Pandey, learned counsel appears for the respondent no. 1.
The contention of the learned counsel for the respondent is that plaint averments themselves are to be seen for the purpose of consideration of an application under Order 7 Rule 11 of C.P.C.
The issue raised by the learned counsel for the appellant is debatable.
Admit.
Issue notice to the respondent no. 2 by registered post as well as by ordinary process.
Steps to be taken within 10 days, failing which the matter shall be listed forthwith under Chapter 12 Rule 4 of the Allahabad High Court Rules.
If steps are taken within stipulated period, list the case on the date mentioned in the notice.
The substantial questions of law are as follows:
"1. Whether the courts below have erred in rejecting the plaint under Order 7 Rule 11 C.P.C. holding the suit to be barred by virtue of Section 4 of the Prohibition of Benami Transactions Act, 1988?
2. Whether the plaintiff and the defendant no. 1 being siblings had fiduciary relationship that would entitle the plaintiff-appellant to the benefit of Section 4 (3)(b) of the Prohibition of Benami Transactions Act, 1988?
3. Whether in the facts and circumstances of the case the plaint could have been rejected under Order 7 Rule 11 C.P.C. without issues being framed and evidence adduced?
4. Whether the lower Appellate Court was justified in rejecting the plaint without considering whether the suit could be maintained for the other relief of permanent injunction sought by the plaintiff-appellant?"
6. Learned counsel for the respondents fairly submits that the present appeal may be allowed as both the court below have ignored Section 4(3)(b) of the Prohibition of Benami Property Transactions Act, 1988. In view of the statement given by learned counsel for the respondents, the judgment and decree passed by both the court below are set aside. The matter is remanded to the trial court to decide the suit.
7. The suit is of the year 2016, therefore, it is expected of the trial court to decide the suit expeditiously, preferably within a period of two years from the date of production of certified copy of this order without granting any unnecessary adjournment to either of the parties.
8. For the reasons given above, the appeal is allowed.
Order Date :- 1.5.2024
R.S. Tiwari
