ivil Appeal No 3552 of 1989
From the Judgment and order dated 241187 of the Allahabad High Court in Second Appeal No 2719 of 1987
JP Goyal RC Verma MR Bidsar and KK Gupta NP for the Appellants
OP Rana and Girish Chandra for the Respondent
The Judgment of the Court was delivered by KASLIWAL J
This appeal by special leave is directed against the Judgment of Allahabad High Court dated 24111987
The plaintiff respondent filed a suit on the ground that the land purchased through 4 sale deeds dated 1061968 2161968 1711976 and 2361977 were purchased by him alone and he was the real owner of said land
The name of the defendantsappellants were included in the said sale deeds only as benamidar
The defendants appellants took the plea that they had paid their part of the sale consideration and the land was jointly purchased in the name of both the parties
It may be noted that the defendant appellant Om Prakash and plaintiff respondent Jai Prakash are brothers and defendant appellant NO
2 Smt
Satyawati is the wife of appellant Om Prakash
It has come on record that the appellant NO 1 Om Prakash was in Government service ever since 1953 and the plaintiff respondent was looking after the entire agricultural property in the village
Consolidation proceedings also took place in the village and during the consolidation operation partition had been effected in the revenue records and chaks had been carved out in accordance with the share of the parties
At that time no dispute was raised by the plaintiff respondent that he was owner of the entire property and the names of defendants appellants were wrongly mentioned as benami
The learned trial court arrived at the conclusion that the names of the defendants appellants in the sale deeds were not mentioned as benamidars and further held that the claim of the plaintiff respondent could not be accepted as no objection had been taken by him even during the consolidation proceedings
The suit as such was dismissed by the trial court by Judgment dated 2411987
The plaintiff aggrieved against the judgment of 19 the trial court filed an appeal
The first appellate court reversed the Judgment and decree of the trial court and decreed the suit in favour of the plaintiff
The second appeal filed by the defendants was dismissed by the High Court
The defendants aggrieved against the Judgment and decree of the High Court filed special leave petition before this Court on 15th March 1988
During the pendency of the special leave petition the Benami Transactions Prohibition of the right to recover property Ordinance 1988 was promulgated by the President of India on 1951988
The said ordinance was replaced by the Benami Transactions Prohibition ACt 1988 Hereinafter called the Benami Act 
The Act received the assent of the President of India on 591988
The defendants filed an application on 151989 for allowing them to take additional grounds made available on the basis of the aforesaid Benami Act 
Thereafter special leave was granted by this court by order dated 2181989 and it was directed that printing of record is dispensed with and appeal will be heard on the special leave petition paper books
The parties were given liberty to file additional documents if any within four weeks and the appeal was directed to be listed on 13121989 for hearing
Pending disposal of the appeal the parties were directed to maintain status quo as existing on that day
In the above circumstances the matter came up for hearing before us
Though there is no specific order of this Court allowing the application dated 151989 filed by the appellants for raising additional grounds the same shall be deemed to have been allowed as the special leave petition was granted subsequently on 2181989 after hearing both the parties
In any case we further make it clear that we had permitted the defendantsappellants to argue additional grounds made available to them under the Benami Act  which admittedly came into force after the filing of the special leave petition in this Court
Learned counsel appearing on behalf of the defendants appellants had contended that the suit filed by the plaintiff respondent was not maintainable and barred under Section 49 of the UP Consolidation of Holdings Act 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed to be recorded in the name of the defendants appellants
So far as this objection under Section 49 of the UP Consolidation of Holdings Act is concerned no foundations were laid in the written statement nor any issue was raised
The High Court was thus right in holding that in the facts of this case no foundation had been laid for the applicability of Section 49 of UP Consolidation of Holdings Act
We see no error in the order of the High Court in taking the aforesaid view and we also hold that the defendants 20 appellants cannot be allowed to take such plea for which no foundation was laid in the pleadings
The next important and formidable question which arises for consideration is whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act
This Court in Mithilesh Kumari and Anr
vs Prem Behari Khare JT  has already held that the expression shall lie in Section 4 1 and shall allow in Section 4 2 of the Benami Act are prospective and shall apply to present future stages and future suits claims or actions only
The expression any property held benami is not limited to any particular time date or duration
In a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4 the appellate court can take into account the subsequent legislative changes
Section 4 of the Benami Act reads as under 1 No suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property
2 No defence based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person shall be allowed in any suit claim or action by or on behalf of a person claiming to be the real owner of such property
 In the case of Mithilesh Kumar this Court considered the 130th report of the Law Commission submitted to the Government on August 14 1988
Benami Transaction Prohibition Bill 1988 was drafted after getting the report and the Bill was introduced in the Rajya Sabha on 31st August 1988 and then the Bill was passed
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retrospective in operation and that no locus penitentia need be given to the persons who had entered in the benami transaction in the past
Learned counsel appearing for the respondent was unable to convince us to take a different view from that already taken by this Court in Mithiledsh kumari s case
It was vehemently contended by the learned counsel for the plaintiff respondent that even if the ratio of Mithilesh Kumari s case is applied it can be made available only in a case where appeal was pending before the higher Court
It was contended that in the present case only special leave petition 21 filed on 15th March 1988 was pending at the time when the Benami Act came into force
It was pointed out that the Ordinance was promulgated on 1951988 and the Benami Act received the assent of the President on 591988
It was thus contended that no appeal was pending on 1951988 or 591988 as the special leave was granted much after on 2181989 and thus no advantage can be taken by the defendants appellants of Section 4 of the Benami Act as no appeal was pending on the date when the benami Act came into force
We find no force in the above contention of the learned counsel for the plaintiff respondent
Special leave petition was filed against the Judgment of the High Court on 1531988 and special leave was granted on 2181989 after hearing both the parties
In the present case the defendants having lost in High Court could have approached this Court only through a special leave petition under article 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard
Though the special leave might have been granted subsequently on 2181989 but it is a fact that the Judgment and decree of the High Court had already been challenged by the defendant appellants and it cannot be said that no appeal was pending before this Court simply on the ground that only special leave petition was pending when the Benami Act came into force
There is a clear prohibition under Section 4 of the benami Act that no suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property
It is well settled that an appeal is a continuation of suit and in the present case the appeal was pending before this Court
There is no manner of dispute that the present suit had been filed by the plaintiff respondent claiming that he was the real owner of the property and the names of the defendants appellants were mentioned in the sale deeds as benami
In our view Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff respondent is not entitled to get any decree in such suit or in appeal
As a result of the above discussion we allow this appeal set aside the Judgment and decree of the High Court and dismiss the suit
In view of the fact that the suit is dismissed on account of legislative change brought about during the pendency of the appeal in this Court there would be no order as to cost
VPR Appeal allowed


Summary:
The Union government sent a requisition to the Union Public Service Commission for selection of a candidate to post of Assistant Director General Prevention of Food Adulterationin the Ministry of Health and Family Welfare which under the extant rules was to be filled in only by direct recruitment
However before the Commission could advertise the postthe Government informed it not to proceed with the process of selection as it was examining to fill up the post by promotion of Assistant Secretary
But inspite of thisthe commission Advertised the post and the appellant was called for an interview where upon Respondent No1 an Assistant Secretary who was expecting her promotion to the post on amendment of the rulesobtained an interim order from Central Administrative Tribunal staying the process of selection initiated by the Commission
The appellant feeling affected by the said order unsuccessfully moved the Tribunal for impleadment
Meanwhile two further layers above that of Assistant Secretary though in higher pay scales but with no separate designations were created by an amendment of rules in pursuance of this Court s direction The Tribunal disposed of the application directing to provide promotional avenues to Respondent No1 who while functioning as Assistant Secretary had also occasionally held the charge of Assistant Director General
Aggrieved the appellant preferred the appeal by special leave to this Court
It was contended by the appellant that once the process for selection had started it was not open to the Government as well as to the Tribunal to freeze the process and the Commission was entitled to complete the selection and that the fact of creation of two layers by the amendment of the rules was wrongly overlooked by the Tribunal
Dismissing the appeal this Court 2 HELD  11 If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to a particular post it can before an advertisement is issued by the Commission and the process of the selection is under way request the Commission to withhold the same till it decides on the question of amending the the rules
p5E F 12 Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the government to decidep6AB 13 Once the decision of the Government to withdraw the repuisition was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement it was not open to the Commission to go ahead with the selection process as the Government could amend the recruitment rules retrospectively if it so desired with a view to providing for appointment by promotion Such an exercise by the Commission would be one in futility waste of public time and money and hardship to candidates who seek appointmentpp5GH6A The action of the Commission was somewhat hasty and unjustifiedp6B 21 If the Commission issues an advertisement at the behest of the Government and pursuant thereto calls a candidate for interview the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question
The right to selection crystalises only after the candidate is called for interview pursuant to the advertisementp5 C D NT Devin Katti  Ors
vs Karnataka Public Service Commission  Ors1990 3 SCC 157 and Jatinder Kumar  Orsv
State of Punjab  Ors
19851 SCR 899 referred to
22 In the instant case the decision of the Government to withdraw the requisition sent to the Commission before the issuance of the advertisement dose not interfere with any vested right of selection because that stage had yet not reachedp5F 23 Before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question
p5G 3 24 The appellant therefore cannot claim any vested right
Nor can the tribunal s omission to notice that two new layers were created have a bearing on the Government s decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post
p6BC