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DR. NISHA RICHHARIYA versus SMT. PRABHA AWASTHI & ANOTHER

High Court of Judicature at Allahabad

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Dr. Nisha Richhariya v. Smt. Prabha Awasthi & Another - CIVIL REVISION DEFECTIVE No. - 103 of 2007 [2007] RD-AH 17332 (2 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.6

Civil Revision No.(103) of 2007

Dr. Nisha Richhariya

Vs.

Smt. Prabha Awasthi & Anr.

~~~~~~

Hon. Dilip Gupta, J.

The defendant of Original Suit No.584 of 2005 has filed this Civil Revision under Section 115 of the Code of Civil Procedure for setting aside the judgment and order dated 23rd October, 2007 passed by the learned Additional Civil Judge (Senior Division), Court No.12, Gautam Buddha Nagar by which the application filed by the defendant under Order VII Rule 11 of the Code of Civil Procedure for rejecting the plaint was rejected.

The Original Suit had been filed for permanent injunction that the defendants may not transfer the property in favour of any other person and for certain other reliefs which were added by amendment. An application under Order VII Rule 11 of the Code of Civil Procedure was filed by the defendants which was registered as Paper No.72-Ka. It was stated that as the plaintiff has filed this suit alleging that there was an agreement to sale dated 15th May, 2005 that had been executed by defendant no.1 in favour of the plaintiff and that the property had been purchased from the funds of the plaintiff, the claim of the plaintiff was based on the alleged Benami transaction in the name of the plaintiff which was barred under The Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the ''Act'). It was, therefore, contended that the plaint was liable to be rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure. It was also stated that the plaintiff had based her claim on the alleged agreement to sale but had not filed the suit for specific performance and hence the suit was barred under Section 41(h) of the Specific Relief Act.

The Trial Court rejected the application filed by defendant no.1 by the order dated 23rd October, 2007.

I have heard Sri Manish Goyal, learned counsel appearing for the revisionist.

Learned counsel urged that the Court below failed to correctly appreciate the provisions of Order VII Rule 11(d) of the Code of Civil Procedure as the suit to claim Benami transactions was clearly barred under Section 4(1) of the Act and the Trial Court misdirected itself in holding that it could be determined only on the basis of evidence as to whether the property was purchased in contravention of the provisions of the Act.

The Trial Court noticed that the suit was based on the agreement to sale dated 18th May, 2005 and even though it may not be a registered document, yet it could be taken into consideration, if it could be proved from the other evidence on record. The Trial Court further observed that the fact whether the property was purchased as Benami or not, was also a matter which could be determined only after the evidence was led by the parties and likewise the plea about the suit being barred under Section 41(h) of the Specific Relief Act was also to be examined after the evidence was led.

In my opinion, the Trial Court has given cogent reasons for rejecting the application under Order VII Rule 11 of the Code of Civil Procedure and it cannot be said that the Trial Court failed to exercise the jurisdiction vested in it or had acted in the exercise of a jurisdiction illegally or with material irregularity. The contention of the learned counsel for the revisionist cannot, therefore, be accepted.

The Revision is, accordingly, dismissed.

Date: 2.11.2007

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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