1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7728 OF 2008 Yusuf Sayyed Saheb Sayyed ...Petitioner Versus Sheikh Nizampasha Mohamad Sheikh and others ...Respondents ..... Mr. A.S. Deshpande, advocate for the petitioner Mr. C.R. Deshpande, advocate for respondent No. 1 ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 21.08.2009 OF ORDER DATE OF PRONOUCNEMENT : 05.09.2009 OF ORDER PER COURT:- 1 This writ petition is filed challenging the judgment and order dated 4.11.2008 passed by the learned C.J.J.D. Latur below Exh.18 in R.C.S. No. 27 of 2008. 2 By way of aforesaid order, the learned Judge has allowed the application filed by the respondent No.1 herein below Exh.18 under Order VI Rule16 and Order XIV Rule 5 of Code of Civil Procedure. 2 3 Learned counsel appearing for the petitioner submits that the lower court has struck down the substantial defence of the petitioner and if the impugned order remain as it is, then the claim of the petitioner will not survive. The court has not considered the provisions of Order VI Rule 16 and Order XIV Rule 15 of C.P.C. Learned counsel further submitted that though the petitioner lost in R.C.S. No. 236 of 2005 upto the Hon’ble High Court, the same was filed for prohibitory injunction and this court held that the pleading of the petitioner in the plaint in R.C.S. No. 236 of 2005 was barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. Learned counsel further submitted that the petitioner has filed S.L.P. Before the Hon'ble Apex Court and the same is issue is pending before the Hon’ble Apex Court, therefore, the trial court ought not to have passed the impugned order. Learned counsel invited my attention to the pleading and grounds mentioned in the writ petition and submitted that the impugned order deserves to be set aside. 4 Learned counsel for the respondent relying on the affidavit in reply has submitted that suit filed by the present petitioner bearing R.C.S. No. 236 of 2005 for perpetual injunction against the present respondent has been disposed of as the plaint was rejected as barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, now it is not open to the petitioner to rely upon the same issue by way 3 of defence in R.C.S. No. 27 of 2008 filed by the plaintiff, who was defendant in R.C.S. No. 236 of 2005. Learned counsel invited my attention to the submissions in the affidavit in reply more particularly para 8 and 9 and submitted that the petition is devoid of any merits and the same deserves to be dismissed. 5 After hearing the counsel for the petitioner and the respondent concern, I am of the considered view that impugned order does to call for any interference in writ jurisdiction. The IIIrd Joint C.J.J.D. Latur in para 8 of the impugned order, has observed thus:- “ The present plaintiff has produced the certified copy of the plaint in RCS No.236 of 2005 alongwith list at Exh.04. From this plaint, it is clear that the present defendant No.1 had put forth the same case in respect of Benami Transaction in RCS No. 236 of 2005. In this suit the present plaintiff had filed a application at Exh.27 and prayed for rejection of the plaint U/O VII Rule 11 of C.P.C. The said application was rejected and the present plaintiff had preferred the Civil Revision Application No. 157 of 2005 in the Hon’ble High Court at Bombay Bench at Aurangabad. The present plaintiff has produced the copy of the order dated 23rd January, 2007 in Civil Revision Application No. 157 of 2007 alongwith the list at Exh.04. From this order of Hon’ble High Court it is clear that the Hon’ble High Court had held that the case put forth by the present defendant No.1 is barred by Section 4(ii) of Benami Transaction (Prohibition) Act, 1988 and therefore, allowed the revision. It is clear that on the basis of this order of Hon’ble High Court the plaint in RCS No. 4 236 of 2005 was rejected.” 6 The court below has scrutinized the pleading of the original defendants at para a to d and then pleadings at para a, c and d, and found that all these pleadings are pertaining to the Benami Transactions. Therefore, as per Section 4(2) of the Benami Transactions (Prohibition) Act, 1988, the Court observed that the original defendants cannot take such defence. The defendant case also does not come within the ambit of explanation given in Section 4(iii) of the Benami Transactions (prohibition) Act, 1988 and the court has also referred to the other aspects of the matter and in para 11, it is observed that in para b of the pleadings in first six lines, the defendants have put up a case of the sale transactions, which is in respect of Benami transactions and therefore, these six lines from para b of the pleading required to be struck down. On careful perusal of the judgment and order impugned in this petition it appears that the court below has properly interpreted Section 4(2) and (3) of the Benami Transactions (Prohibition) Act, 1988. The provisions of Section 4(2) of the said Act are reproduced herein below:- “(2) No defence based on any right in respect of any 5 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.” This court had occasion to deal with Section 4(2) of the Benami Transaction (Prohibition) Act, 1988 in the case of Shri Bhaurao Laxman Honde Vs. Namdeo Laxman Honde, reported in 2002 (1) All M.R. 779 and this Court held that defence based on any right in respect of any property held Benami is permissible against the person in whose name the property is held or against any person. Therefore, in my considered view, the trial court has taken plausible and reasonable view. The findings recorded by the court below are not perverse in any manner. Writ petition is dismissed. *****