Rabindra Kumar vs Raj Nandan Sharma and Others

P.K. Balasubramanyan, C.J.—Heard.

This revision by the first defendant challenges the order of the Trial Court rejecting the application filed by him praying that the plaint be rejected under Order VII, Rule 11 of the CPC in view of the fact that the suit was barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The suit was by a father against his sons and the widow of his predeceased son. The suit properties were purchased in the respective names of the sons and the daughter-in-law. The case of the plaintiff was that the purchase was made by him in their names. The prayer in the plaint was for a declaration that the plaintiff was the exclusive owner of the suit properties. The plaintiff also indicated in the plaint that though there was a joint family consisting of himself and his brothers, that joint family had nothing to do with the plaint schedule properties.

The defendants did not file a written statement. But even before that, the first defendant made the present application. On behalf of the plaintiff, it was sought to be argued that defendant No. 1 was a coparcener in a joint Hindu family consisting of the plaintiff and his sons and hence this was a case to which Sub-section (3) of Section 4 of the Act was attracted and Section 4(1) would not hit the present suit. The Trial Court accepted that submission and dismissed the application filed by the first defendant seeking the rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure.

Learned counsel for the first defendant pointed out that the plaintiff did not plead that the property involved belonged to any joint Hindu family and in that situation, the Trial Court was in error in dismissing the application. Learned counsel for the plaintiff-respondent submitted that the plaintiff-respondent may be permitted to withdraw the plaint in the circumstances, with a view to enable him to file a proper plaint in respect of his claim over the properties. Of course, learned counsel for the first defendant submitted that this Court may not permit the withdrawal of the plaint at this stage. But having considered the circumstances as a whole, in the light of the arguments placed before me, I am satisfied that this is a fit case in which the plaintiff should be permitted to withdrawal the plaint, in terms of Order XXIII, Rule 1 of the CPC with liberty to file another suit.

I, therefore, allow this revision and dispose of the suit by permitting the plaintiff to withdraw the plaint with liberty to file a proper plaint, if so advised.