Pritam Singh vs Smt. Narinder Kaur
1985 Latest Caselaw 96 Del

JUDGMENT

S.B. Wad, J.

1. This civil revision is directed against the order of Sub-Judge (C. K. Chaturvedi) dated May 11, 1983, in Suit No. 336 of 1976. The suit filed by the petitioner was dismissed on the preliminary ground by the learned Sub-Judge. The plaintiff had filed the suit against his wife for a permanent injunction and for restraining the wife from interfering with the petitioner's possession of house No. 71/71, Prem Nagar, New Delhi. In that suit, he had raised the plea that the wife was only a benami owner and that he was the real owner of the property. Section 281A(1)(c) of the Income-tax Act requires that the person claiming to be the real owner should obtain a certificate from the income-tax authorities before the suit is filed. In other words, while filing the suit, the alleged real owner should file such a certificate in the court. As the petitioner failed to produce such a certificate, the learned Sub-Judge held that the suit was not maintainable and he dismissed the suit without going into the merits. The petitioner had contended before the learned Sub-Judge that failure to produce such a certificate was only an irregularity and not an illegality but the learned Sub-Judge held that production of certificate is a mandatory requirement of law and not a mere irregularity.

2. The submission of the petitioner is that he has now obtained such a certificate from the income-tax authorities. Section 281A(1)(c), as it then stood, did not prescribe any limitation within which an application for a certificate should be made by a person claiming to be the real owner. The alleged purchase of the property was made on December 6, 1961. The said section 281A was subsequently amended and it is now provided that an application for a certificate should be made by the alleged owner within one year from the transaction. In 1961, when the sale was made, there was no such requirement. Even when the suit was filed in 1976, no period of limitation was prescribed. It may also be noted that the petitioner was working as a clerk in the Northern Railway at the relevant time and was not required to pay any income-tax. In the revision application, the petitioner has submitted that if the said certificate was a mandatory requirement, he should have been allowed to withdraw the suit with permission to file the same after obtaining the certificate. But, on the facts of the case, I find that the better course is to remit the suit to the learned Sub-Judge for decision on merits as the requirement of section 281A(1)(c) is now complied with by the petitioner. The suit is remanded to the Sub-Judge for rendering a decision on merits.

3. For the reasons stated above, the civil revision is allowed. However, there will be no order as to costs.