* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Civil Revision Petition No.2911 of 2009 % 30-11-2009 Between: # Agina Chandramouli …Petitioner VS. $ Rajoori Ramalingam ..Respondent ! COUNSEL FOR PETITIONER: MR.S.SUDEEP REDDY ^COUNSEL FOR RESPONDENT: MR. V.V.RAMANA RAO < Gist: > Head Note: ? CITATIONS: 1) (1998) 2 SCC 70 2) 1989 (1) ALT 190 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2911 of 2009 Dated:30-11-2009 Between: Agina Chandramouli …. Petitioner and Rajoori Ramalingam …Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2911 of 2009 ORDER: This Civil Revision Petition is directed against the order dated 16.06.2009 passed in I.A.No.53 of 2009 in O.S.No.10 of 2005 on the file of the Junior Civil Judge at Sircilla, Karimnagar District, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the defendant under Order 7, Rule 11 (a) & (d) r/w. Sec.151 CPC. 2. a) The petitioner is the defendant and the respondent is the plaintiff in O.S.No.10 of 2005. The plaintiff filed the suit for partition and separate possession of his half share in the suit schedule property. The plaint averments in brief are: The plaintiff and the defendant are the joint owners and possessors of the suit schedule property admeasuring 129 sq. yards bearing Municipal Door No.4-1-30 (old No.10-3-95/1), situated at Indiranagar Sub-Road, Sircilla. Plaintiff’s sister Varamma is the mother of the defendant. Thus, the plaintiff is the maternal uncle of the defendant. They jointly purchased the suit schedule property from Pampati Srinivas S/o.Nagabhushanam for a consideration of Rs.32,800/- by contributing the sale consideration in equal ratio. However, sale-deed was obtained in the name of the defendant as the plaintiff was taking treatment for his chronic ailment by visiting various hospitals at different places. The original registered sale deed has been in the custody of the plaintiff. According to the plaintiff, the stamp duty and registration fee have been incurred by them in equal ratio. They have been paying the taxes to the municipality in respect of the suit schedule property in equal ratio. However, receipts are issued in the name of the defendant. An agreement came to be executed between the parties on 18.06.2003 confirming that the suit schedule property was purchased jointly and the sale consideration was paid to the vendor in equal proportions. Disputes arose between the parties and thereupon, the plaintiff issued a notice dated 02.02.2005 calling upon him for division of the suit schedule property by metes and bounds in two equal halves and allotment of one such half to his share. There being no co- operation of the defendant for division of the property by metes and bounds, the plaintiff filed the suit for partition and separate possession of his half share in the suit schedule property. b) The defendant filed written statement resisting the claim of the plaintiff. He disputed the agreement dated 18.06.2003 pressed into service by the plaintiff. He asserted that the suit schedule property has been purchased by him out of his own funds and no part of the sale consideration has been flown from the plaintiff. But, the relationship between the parties has not been disputed. For better appreciation, I may refer relevant portion of the written statement, which reads as hereunder: “The plaintiff is the maternal uncle of the defendant. That the plaintiff and defendant and family members have been very much cordial with each other and the plaintiff was having love and affection towards the defendant as the plaintiff has no issues of any kind. That on the proposal of the plaintiff only the defendant has purchased the land. That on his inspiration only wife of the defendant by name Chandrakala also purchased the open land to an extent of 129 sq. yards of the premises bearing No.4-1-30 old No.10-3-95/1. That the plaintiff have looked after the all affairs of the said purchased premises under his supervision only the construction work has been made by obtaining permission from the Municipal Council, Sircilla with respect to property of the wife of defendant. All the original documents have been kept with the plaintiff. That the defendant and family members completely trusted the plaintiff but utter surprise to the defendant the plaintiff as the defendants and his family members are residing at Vemulawada proper and Mandal have developed evil thought to grab the suit land when the defendant learnt the defendant demanded the plaintiff for return of the original documents and bills receipts pertaining to the suit premises, he himself has become hostile to the defendant and started filing of false case against the defendant and his wife and his family members on creating false stories with false and frivolous allegations. Therefore, the suit is liable to be dismissed in limini.” c) The trial Court settled the issues for trial. Before commencement of trial, the defendant filed I.A.No.53 of 2009 under Order 7, Rule 11 (a) & (d) r/w. Sec.151 CPC seeking rejection of the plaint on the ground that the plaint averments do not disclose any cause much less cause which is actionable at law and the cause as disclosed in the plaint is barred by law. It is stated in the affidavit filed in support of the petition that the suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. It is further stated in the affidavit that the plaintiff under the guise of partition is trying to seek declaration without paying the proper court fee. d) The plaintiff filed counter resisting the application. It is stated in the counter that the defendant did not plead in his written statement with regard to non-maintainability of the suit under the provisions of the Benami Transactions (Prohibition) Act, 1988. The application filed by the petitioner/defendant is a belated one and therefore, it is liable to be dismissed in limini. e) The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application, by order dated 16.06.2009. The said order is assailed in this revision by the petitioner/defendant. 3. The C.R.P. came to be admitted on 17.07.2009. An interim stay of all further proceedings in O.S.No.10 of 2005 on the file of the Junior Civil Judge, Sircilla, Karimnagar District, has been granted on the even date vide CRPMP No.4030 of 2009. The respondent/plaintiff entered appearance through a counsel and filed counter-affidavit in the stay application. 4. When CRPMP No.4030 of 2009 came up for consideration, with the consent of the learned counsel appearing for the parties, the CRP itself is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner/defendant and learned counsel appearing for the respondent/plaintiff. 6. Learned counsel appearing for the petitioner/defendant submits that the plaint averments do not disclose the cause of action and the plea advanced by the plaintiff that he purchased the property along with the defendant by contributing the sale consideration in equal shares is impermissible in view of the provisions of the Benami Transactions (Prohibition) Act, 1988. When once the plaintiff failed to make out cause of action for filing the suit and the plea advanced by the plaintiff is barred by law, the plaint is liable to be rejected as provided under Order 7, Rule 11 (a) & (d) of CPC. He would also contend that the power to reject the plaint can be exercised by the Court even after framing of the issues and when the matter is posted for evidence and therefore, application filed by the petitioner/defendant seeking rejection of the plaint after framing of the issues cannot be dismissed on the ground of filing it at a belated stage. The learned counsel took me to the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988, which reads as hereunder: “4. Prohibition of the right to recover property held benami.—(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 be 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. (3) Nothing in this section shall apply, -- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” By referring the above said provision, the learned counsel appearing for the petitioner contended that the suit filed by the plaintiff is clearly barred by law and in which case the plaint is liable to be rejected under Order 7, Rule 11 (a) & (d) CPC. In support of his contentions, reliance has been placed on the decision of the Supreme Court in I.T.C. Ltd. v. Debts Recovery Appellate Tribunal[1], wherein it has been held that the power to reject the plaint under Order 7, Rule 11 CPC can be exercised even after framing of the issues and when the matter is posted for evidence. The learned counsel by referring Sections 81 and 82 of the Benami Transactions (Prohibition) Act, 1988, contends that the above provisions have been repealed by Section 7 of the Benami Transactions (Prohibition) Act, 1988, and in which case it is impermissible for the plaintiff to contend that the defendant is holding the property for his interest also. 7. Per contra, learned counsel appearing for the respondent/plaintiff submits that the question whether the suit is bared by the provisions of the Benami Transactions (Prohibition) Act, 1988, is required to be decided only at the time of trial and it cannot be gone into while deciding the application for rejection of the plaint. He would also submit that under Order 7, Rule 11 (d) CPC, the plaint is liable to be rejected only if the averments termed therein explicitly disclose that the suit is barred by the provisions of any law, but not otherwise. The Court has no power to throw out the suit by rejecting the plaint at the threshold stage by examining and interpreting the provisions of law on which the suit is found. Neither the express language of clause (d) of Rule 11 nor its intendment clothe the court with such a power. The words “where the suit appears to be barred by any law” are qualified by “the statement in the plaint”. What is explicitly mentioned in the plaint, therefore, must alone be the basis for the exercise of power under Order VII Rule 11 (d), but not the conclusions that may be interpretatively drawn on an examination of the statutory provisions alluded to in the plaint. Where there is no such explicit statement in the plaint the question whether there is any legal barricade to the suit must be tried as an issue at the appropriate stage. In support of his submissions, reliance has been placed on the decision of this Court in United India Insurance Co. v. C.R.Ramanatham[2]. 8. The issue that calls for adjudication in this revision is, whether the petitioner/defendant made out valid grounds for rejection of the plaint under Order 7, Rule 11 (a) & (d) r/w. S.151 CPC? 9. Order 7, Rule 11 C. P. C. reads as under: "11. Rejection of plaint.-- The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause great injustice to the plaintiff." 10. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 11. The petitioner/defendant put forward two pleas for rejection of the plaint. Firstly, there is no cause of action; Secondly, the suit is barred by the provisions of the Benami Transactions (Prohibition) Act, 1988. The respondent/plaintiff pleaded in para.VIII of the plaint as follows: “VIII. So, in the above said manner, the relationship of the plaintiff with the defendant and his family members became strained and the latter are trying to oust the plaintiff from suit land by applying physical force and threat and are bent upon getting the original registered sale deed pertaining to the suit land from the plaintiff by unlawful means. Their said acts continue and therefore, in the circumstances the plaintiff’s undivided rights and interests in suit land are in jeopardy. Finding that it is not at all safe and conducive for him to continue in joint ownership and possession of the suit land along with defendant any longer on dt:2-2-2005 the plaintiff finally demanded the defendant for effecting partition of suit premises by metes and bounds and to allot his half divided share in severalty, but the defendant flatly declined. So, these are the facts giving rise to cause of action that arose finally on 2-2-2005 at Sircilla proper and Mandal, in the manner submitted supra.” A plain reading of the above referred para. indicates that the cause of action for filing the suit arose on 02.02.2005, the date on which the respondent/plaintiff finally demanded the defendant for effecting partition of the suit schedule premises. Therefore, the contention of the petitioner/defendant that there is no cause of action for filing the suit has no substance. Much emphasis has been laid by the learned counsel appearing for the petitioner/defendant that suit filed by the respondent/plaintiff is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. Learned counsel refers Section 4 of the Benami Transactions (Prohibition) Act, 1988, copiously to buttress his submissions. 12. At this juncture, it is trite to note the definition of ‘Benami transaction’ as defined in Section 2(a) of the Benami Transactions (Prohibition) Act, 1988, which reads as hereunder: “2.(a) “Benami transaction” means any transaction in which property is transferred to one person for a consideration paid or provided by another person; The first and foremost requirement is that a property should have been transferred in the name of a person for consideration paid or provided by another person. In other words, the consideration for the transaction should not have flown from the person in whose name the property is purchased. If the person in whose name the property is purchased also has contributed consideration for purchase of the property in his name alongwith others whose name is not reflected in the sale deed, it would not amount to a benami transaction as defined under the Act. The respondent/plaintiff pleaded in the plaint that half of the sale consideration has flown from the petitioner/defendant and other half has been contributed by him. He also pleaded that as a proof of his contributing half of the sale consideration, original sale deed has been retained by him, apart from obtaining an agreement dated 18.06.2003. The possession of the original sale deed in respect of the suit schedule property and the contents of the agreement dated 18.06.2003, which have been referred in para.6 of the plaint, lend support prima facie to the plea advanced by him with regard to his contributing half of the sale consideration. These are the disputed questions, which are required to be adjudicated on full-fledged trial. Therefore, I find that the petitioner/defendant failed to make out valid grounds for rejection of the plaint at the threshold. The trial Court considered the material brought on record in right perspective and proceeded to dismiss the application filed by the petitioner/defendant under Order 7 Rule 11 (1)&)(d) r/w. Sec.151 CPC. I do not see any flaw in the order impugned in the revision. 13. Accordingly, the Civil Revision Petition fails and it is hereby dismissed with costs. _______________________ B.SESHASAYANA REDDY, J. Date:30-11-2009. Note: L.R. copy to be marked. B/O cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2911 of 2009 Dated:30-11-2009 [1] (1998) 2 SCC 70 [2] 1989 (1) ALT 190