PAWAN KUMAR versus BABULAL SINCE DECEASED THROUGH LRS. AND ORS.

Citation: [2019] 5 S.C.R. 1141 · Decided: 02-04-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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 PAWAN KUMAR
v.
BABULAL SINCE DECEASED THROUGH
LRS. AND ORS.
(Civil Appeal No. 3367 of  2019)
APRIL 02, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908:
Or. VII r.11 – Application under – In a suit for declaration of
title – Seeking rejection of plaint on the ground that the suit was
barred u/s. 4 of Benami Transaction (Prohibition) Act – Trial Court
allowing the application rejected the plaint – High Court upheld
the order of trial court – On appeal, plea that the case was covered
by s. 4(3) of the Benami Transaction Act – Held: The question
whether the plaint was barred u/s. 4 of the Act or not could not
have been subject matter of assessment at the stage when
application u/Or. VII r.11 was taken up – The matter required fuller
and final consideration after the evidence was led by the parties –
Application u/Or. VII r.11 is dismissed.
Allowing the appeal, the Court
HELD : In the present case, the controversy has arisen in
an application under Order VII Rule 11 CPC.  Whether the
matter comes within the purview of Section 4(3) of the Benanmi
Transaction Act is an aspect which must be gone into on the
strength of the evidence on record.  Going by the averments in
the Plaint, the question whether the plea raised by the appellant
is barred under Section 4 of the Act or not could not have been
the subject matter of assessment at the stage when application
under Order VII Rule 11 CPC was taken up for consideration.
The matter required fuller and final consideration after the
evidence was led by the parties.  It cannot be said that the plea of
the appellant as raised on the face of it, was barred under the
Act.  The approach must be to proceed on a demurrer and see
[2019] 5 S.C.R. 1141
1141
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SUPREME COURT REPORTS
[2019]  5 S.C.R.
whether accepting the averments in the plaint, the suit is barred
by any law or not. [Para 13][1151-F-H; 1152-A]
Popat and Kotecha Property v. State Bank of India Staff
Association (2005) 7 SCC 510 :  [2005] 2  Suppl.  SCR
1030 – relied on.
Om Prakash and Another  v. Jai Prakash (1992) 1 SCC
710 : [1992] 1 SCR  15 – distinguished.
Marcel Martins  v.  M. Printer and Others (2012) 5
SCC 342 : [2012] 5 SCR 480 ; R. Rajgopal Reddy
through 
LRs.v. 
Padmini 
Chandrasekharaiah
through LRs. (1995) 2 SCC 630 : [1995]  1 SCR  715
– referred to.
Case Law Reference
[2012] 5  SCR 480
referred to
Para 8
[1992] 1 SCR 15
distinguished
Para 8
[1995] 1 SCR 715
referred to
Para 12
[2005] 2  Suppl. SCR 1030
relied on
Para 13
CIVIL APPEALLATE JURISDICTION: Civil Appeal No.3367
of 2019
From the Judgment and Order dated 18.08.2017 of the High Court
of Judicature for Rajasthan, Jaipur Bench, Jaipur in SBRFA No.511/
2016.
R.K.  Singh, Ms. Neeraj Singh, Kumar Gaurav, Ms. Ritu Reniwal,
P. Dayal, Rahul Dr. Tripathi, Rameshwar Prasad Goyal, Advs. for the
Appellants.
Sarad Kr. Singhania, Milind Kumar, Ms. Rohini Musa, Advs. for
the Respondents.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.  1. Leave granted.
2. This appeal questions the final judgment and order dated
18.08.2017 passed by the High Court of Judicature for Rajasthan at
Jaipur in SBRFA No.511 of 2016.
3. The appellant filed a suit for declaration of title with respect to
premises in Kasba Fatehpur’s main market which were more particu-
larly described in the plaint and prayed that he be declared owner of the
premises and that the sale deed dated 24.07.2006 executed by the first
defendant in favour of the second defendant be cancelled.  The material
averments in the plaint were:
(a) A shop in said premises was held by the first defendant, namely,
father of the appellant on rent from the erstwhile owner;
(b) The first defendant having become old, it was the appellant
who had been looking after the entire business;
(c) The erstwhile owner had filed suit for possession which mat-
ter came right upto this Court;
(d) There was a compromise between the erstwhile owner and
the first defendant under which the premises where the shop is situate,
were agreed to be sold in favour of first defendant;
(e) The first defendant was not having enough money and as
such it was the appellant who arranged all the money on his own after
borrowing from money lenders on interest;
(f) At the time of preparing the sale deed, the first defendant had
indicated that the premises be taken in his name;
(g) Even after purchase of the premises in the name of the first
defendant, the appella

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