NAMDEO DEVANGAN Vs. SEETARAM

JUDGEMENT

(1.) Plaintiffs filed the suit on 6-1-1985 for declaration that they are the real owners of suit land and house and defendant No. 6 Rajaram (now deceased) is their Benamidar. Defendants raised an objection that the suit is hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988. Civil Judge, Khairagarh by his order dated 2-7-1992 passed in Civil Suit No. 241-A/1984 rejected the said application. Defendants aggrieved by the same filed Civil Revision No. 6 of 1992 under Section 15 of the Code of Civil Procedure and Addl. District Judge, Khairagarh by judgment and decree dated 30-1-1993 held that the suit is hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the 'Act') and consequently the plaint is fit to be rejected. He further directed for drawal of the decree on the ground that rejection of a plaint under Order 7, Rule 11 C.P.C. is a decree, Plaintiffs aggrieved by the same have preferred this appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as the 'Code'). By order dated 12-8-1993 this Court directed that the question of maintainability of the appeal shall be considered at the time of admission. Ultimately by order dated 4-11-1996 the appeal was admitted for final hearing.

(2.) Shri Ashok Chakravarty, appearing on behalf of respondents 1 to 6 raises a preliminary objection that under Section 96 of the Code, appeal lies from a decree passed by a Court exercised original jurisdiction and in the present case, the decree against which appeal has been preferred, being passed by the revisional Court exercising the power under Section 115 of the Code, no appeal lies. He submits that against the order passed by the revisional Court remedy is to file writ petition under Article 227 of the Constitution of India. In support of the aforesaid submission learned counsel has placed reliance on a judgment of the Supreme Court in the case of Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 892 and my attention has been drawn to the following paragraph of the said judgment :

(3.) Coming to the merits of the case it is relevant here to state that the plaint has been rejected on the ground that suit is hit by Section 4 of the Act and for taking the said view learned Judge took into consideration the judgment of the Supreme Court in the case of In the present case the suit has been filed on 7-1-1984 whereas Section 4 of the Act came into force on 19-5-1988. Supreme Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630 : (AIR 1996 SC 238) has overruled its earlier judgment in Mithilesh Kumari's case (supra) and held that the suit filed before coming into force of the Benami Transactions (Prohibition) Act shall not be hit by Section 4 of the Act. Thus the view taken by the learned Judge that the suit is hit by Section 4 of the Act is not correct.