SANKARI MAITY Vs. BIRENDRA NATH MAITY

JUDGEMENT

(1.) The instant revisional application is directed against an order No. 96 dated 5th August, 1991 passed by the 3rd Munsif, Howrah in T.S. 55 of 1971 allowing the application filed by the opposite party under section 4 of the Benami Transaction (Prohibition) Act, 1988 and consequently dismissed the plaintiff's suit. The petitioner who was eventually the plaintiff in the Title Suit 55 of 1971 had filed the suit for partition and for account. The suit was preliminary decreed and thereafter the opposite party had preferred an appeal before the appellate court in title appeal 126 of 1972. The said title appeal was transferred to the learned Second Additional District Judge at Howrah who dismissed the appeal, inter alia, holding that the plaintiff and the defendants are the co-sharers. After the dismissal of the appeal the defendant chose not to file any second appeal before this court and allowed the judgment and decree passed by the trial court as well as the first appellate court as conclusive. The plaintiff filed an application to pass final decree in terms of the direction given in the preliminary decree. At that stage the defendant had filed an application on 17.6.89, inter alia, alleging that the plaintiff's suit is not maintainable in the civil court inasmuch as it is barred by virtue of provision of section 4 of the Benami Transaction (Prohibition) Act, 1988. While deciding the application the learned trial Judge has taken again the pleadings of the plaint into consideration and held the suit was not maintainable under section 4 of the Benami Transaction (Prohibition) Act, 1988. Thus, the plaintiff has filed this revisional application being aggrieved by and affected with the order passed by the learned trial Judge dismissing his suit.

(2.) Mr. Banerjee, the learned counsel appearing for the petitioner has urged that the learned trial Judge had erroneously dismissed the plaintiffs' suit holding that the provisions of section 4 of the Act is attracted to this case. It was further urged that after the passing of the preliminary decree it was not open to the learned Munsif to reopen the case of the parties and then hold that the suit was not maintainable in law. From the further contention of Mr. Banerjee it appears that once the preliminary decree has been passed determining the rights of the parties the court has to act pursuant to such direction in the preliminary decree and ought not again to allow the parties to argue afresh. The learned trial court has also erred in passing an order of abatement of the suit by virtue of section 4 of the Act inasmuch as the provision has no retrospective operation.

(3.) Mr. Dutt, learned counsel appearing for the opposite party has argued in support of the order that the learned trial court has correctly invoked the provision of section 4 of the Act to this case since the plaintiff in the pleadings had taken a stand that the property was taken on lease from one Surendra Banerjee in the name of the defendant who is the plaintiff's elder brother in good faith. Therefore, in this background once the plaintiff has taken a plea of benami, such plea is obviously untenable in law immediately after passing of the Benami Transaction (Prohibition) Act. Mr. Dutta's second limb of argument is that even assuming the provision of section 4 is prospective in operation, the plaintiff should have challenged the said order by filing a regular appeal before the learned District Judge and he without doing so could not have assailed it by filing a revision. While resolving the controversy between the parties it is necessary to quote the provisions of section 4 of Benami Transaction (Prohibition) Act: