KRISHAN KUMAR Vs. HARNAM DASS DECD

JUDGEMENT

(1.) This order will dispose off I.A. No. 1810/89 and I.A. No. 7587/89. IA No. 1810/89 is filed by the plaintiff under Order 14 Rule 5 read with Section 151 of the Code of Civil Procedure (hereinafter called the 'Code'). It is alleged that the principal defence raised by the defendants is that the real owner of the property was late Sh. Harnam Dass and that the plaintiff is only a Benamidar. Most of the issues framed on 26-11-1982 showed that they arose out of pleadings by the dependants that plaintiff is not the real owner of the property in suit. During the pendency of the suit, the Benami Transactions (Prohibition) Act of 1988 (hereinafter called the 'Act') was enacted by the Parliament with the object of prohibiting Benami transactions and the right to recover property held Benami and for matters enacted therewith or incidental thereto. Section 4(2) of the Act it is alleged, squarely applies to the present case because, it provides that 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 the person claiming to be the real owner of such property. Therefore, by virtue of that provision the defendants cannot be allowed in this case to fake any plea or defence based on any right in respect of the property in suit alleged to be held Benami by the plaintiff. Therefore, issues No. 1,2,5,6,7 and 9 as framed on 26-11-1982 have become redundant and are liable to be struck off. Since such a defence is not permitted to be taken now, it is further alleged, no evidence on such pleas can be deemed relevant in the suit, and so defendants cannot be allowed to lead such evidence at the trial of suit. Thus the prayer is for striking off such issues and a direction to the defendants not to lead any evidence on the plea that the plaintiff is only a Benamidar.

(2.) In reply the above averments were controverted mainly on the ground thet in view of the plea already taken in the written statement, this application could not be allowed. Moreover, the defendants were moving an application for amendment of the written statement by which, besides other things, the legality and constitutional validity of the Act is being challenged and the contents of the amended written statement would also faise issues which would require adjudication by this Court, It was also denied that most of the issues in this case arise only out of the plea raised by the defendants that the plaintiff is not a real owner of the property. It was also denied that issues 1, 2, 5, 6, 7 and 9 fell in this category. Then most of the pleas taken up in the application for amendment by the defendant are mrrated in this reply. At the most, it is further alleged, the Act prevents the defendants from taking advantage of the plea of the Benami but still it was duty of the Court to determine whether the property, in fact is held Benami or not. It is also denied that plea of Benami is irrelevant and the evidence in that respect cannot be led in view of Section 4(2) of the Act. It is further submitted in this reply that even when the plea of Benami ownership of the property is raised, the court is obligated to record the findings so that the same may be accuired of deemed necessary, by the Government under Section 5 of the Act. Since the defendants are also challenging the constitutional validity of the Act and in case the Act is so held, this Court will have to try the issues regarding Benami ownership of the plot. Then issues regarding ownership and the source of funds for the construction of the building and super structure as well as the validity and effect of the agreement dated 16-5-75 have to be gone into by this Court and for all such purposes evi dence has to be led. In short, it is alleged that the decision on all the issues already framed by this Court is relevant and necessary.

(3.) The second application is filed on behalf of defendants 2 to 5 under Order 6 Rule 17 read with Section 151 of the Code for amendment of their written staement filed on or abou 24th October, 1980. It is alleged that during the pendency of the suit the Act came into force, on 5-9-1988. It prohibited the Benami transactions. Based on that plaintiff moved IA 1810/89 under Order 14 Rule 5 read with Section 151 of the Code by winch the sought the striking out of certain issues. It is further stated in IA 1810/89 that no evidence need be recorded on certain issues in view of the Act. It is then alleged that the reliance of the plaintiff on the said Act and by the application moved thereunder the plaintiff virtually seeks a decree without trial and this fact. therefore; has necessitated the amendment to the written statement. The amendments sought for are as follow :