JUDGMENT Brijesh Kumar, J. - This is a plaintiff's first appeal against the judgment and decree dated 9.7.1987 passed by the Civil Judge, Unnao dismissing Regular Suit No. 55 of 1982. 2. The plaintiff had prayed for a declaratory decree in respect of property in suit and for permanent injunction against the defendant respondent. In brief, the plaint case is that the plaintiff is son of Sri Nihal Singh alias, Ram Das Murtikar with his first wife. The first wife of said Sri Nihal Singh, namely, the mother of the plaintiff appellant had died while he was quite young. Nihal Singh is said to have married again and the respondent is the second wife of Nihal Singh. According to the plaint allegations, the respondent had brought up the appellant like her own son. The plaintiff's case further is that his father owned a house at Lucknow but had to sell it as he was indebted. After sale of the house, his father and the respondent started living in a rented house. The appellant then purchased land in the name of respondent as she had all affection for him and later on constructed a house with his own earnings. He called his father and the respondent who started living with him in the house in question. Some persons misguided the respondent, as a result of which she started declaring that she would sell the house, therefore, the present suit was filed. 3. The defendant respondent denied the case of the plaintiff. It was denied that the plaintiff was the son of Nihal Singh with his first wife. Purchase of property in suit by the plaintiff in the name of respondent by way of Benami transaction was also denied. The trial court while dismissing the suit recorded a finding against the plaintiff on his pleading that he was son of Nihal Singh. The case of the plaintiff that he had purchased the property by way of Benami transaction in the name of respondent was also rejected. 4. During pendency of the appeal, Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as, the Act) came into force. An application was moved on behalf of the respondent for dismissal of appeal in view of the provisions contained under Section 4(1) of Act. 4. During pendency of the appeal, Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as, the Act) came into force. An application was moved on behalf of the respondent for dismissal of appeal in view of the provisions contained under Section 4(1) of Act. Reliance has been placed upon a case decided by Hon'ble Supreme Court reported in AIR 1989 SC 1247 , Mithilesh Kumari and another Vs. Prem Behari Khare. It appears that on 26.9.1989 learned counsel for the appellant took time to move an application for permission to withdraw the suit in view of Section 4(1) of the Act. An application has been moved with a prayer to withdraw the appeal and the Suit with liberty to file a fresh suit in respect of the same subjectmatter. 5. Learned counsel for the respondent has opposed the prayer made by the appellant in regard to permission to file a fresh suit. He has submitted that the case is fully covered by Section 4 of the Act and the decision of Hon'ble Supreme Court aforesaid. It has further been submitted that permission to withdraw the suit with liberty to file a fresh suit would prejudice the defendantrespondent as she would be deprived of the findings recorded by the trial court on the basis of evidence adduced in the case. The submission is that it is not always necessary as a matter of course that the plaintiff may be allowed to withdraw the suit. In cases where such withdrawal causes prejudice to the defendant, withdrawal will not be allowed : 6. We may first see the application which has been moved by the plaintiff appellant for withdrawal of the suit and the appeal. It is accompanied by an affidavit. Three paragraphs of the affidavit, two numbered as paragraphs 4 and the next as paragraph 5, read as follows : 4. That in view of the subsequent legislation i. e. Act No. 45 of 1988 (The Benami Transactions) (Prohibition of the Right to Recover Property) the appeal and the suit of the plaintiff has become infructuous. 4. That the present appeal suffers with formal defect i.e. violation of Section 4 of the Act. 5 That in these circumstances the present appeal be allowed to withdraw with liberty to file a fresh suit. 7. 4. That the present appeal suffers with formal defect i.e. violation of Section 4 of the Act. 5 That in these circumstances the present appeal be allowed to withdraw with liberty to file a fresh suit. 7. As is evident from a perusal of the affidavit as quoted above as well as the submission made, the contention of the appellant is that because of the formal defect, the plaintiff may be allowed to withdraw the suit with permission to file a fresh suit. The formal defect is submitted to have crept in view of Section 4(1) of the Act. The application moved by the appellant does not bear any provision under which it has been made. However, obviously it is referable to order XXIII Rule 1(3)(a) of the CPC. Subrule (3) of Rule 1 of Order XXIII CPC reads as follows: (3) Where the court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subjectmatter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim. 8. The question for consideration would be as to whether Section 4 of the Act constitutes a formal defect in the suit filed by the plaintiff. Section 4 of the Act reads as follows : 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 lie 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) . 9. (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) . 9. A bare reading of the above provision clearly indicates that no one can enforce any right in respect of any property held benami, claiming to be the real owner of such property. No suit, claim or action is maintainable for enforcing such right. Subsection (1) of Section 4 of the Act has taken away the right to prefer a claim or to enforce one's right as real owner in respect of any property held benami by some other person. Such a provision as above, providing for disability to bring any action in law cannot be said to be a 'defect' of formal nature. It is quite plain that a formal defect is one which is curable. A person claiming right in property standing in the name of another person on the ground that he is the real owner of such a property, would suffer from a disability to enforce such right in an action or claim in view of Section 4(1) of the Act. This is an inherent disability caused by Section 4(1) of the Act which is not curable. Curable defect is one where after curing the defect a suit may be filed removing the impediment which comes in the way of plaintiff to maintain the suit, but as noted above, on such action can be brought in a matter pertaining to benami transactions. 10. In view of the discussion held above, I am not inclined to accept the contention raised on behalf of the appellant that suit and appeal suffer from a 'formal defect' and the appellant may, therefore, be allowed to withdraw the suit and the appeal with permission to file a fresh suit. 11. Learned counsel for the appellant has then submitted that in such circumstances, that plaint should be rejected under Order VII Rule 11 CPC, which reads as follows : II. Rejection of plaint : The plaint shall be rejected in the following cases : (a) .. (b) ............... (c) ..................... 11. Learned counsel for the appellant has then submitted that in such circumstances, that plaint should be rejected under Order VII Rule 11 CPC, which reads as follows : II. Rejection of plaint : The plaint shall be rejected in the following cases : (a) .. (b) ............... (c) ..................... (d) where the suit appears from the statement in the plaint to be barred by any law. It has been submitted that on rejection of plaint, the plaintiff would still be entitled to file a fresh plaint in view of the provisions contained under Rule 13 of Order VII CPC which reads as follows. 13. Where rejection of plaint dose not preclude presentation of fresh plaint: The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 12 It is true, a plaint rejected by reason of fact that the suit is barred by law, may by itself or on its own force shall not preclude the plaintiff from presenting a fresh suit in respect of the same cause of action, but filing of the suit may still be barred in the set of facts and circumstances of present case. There is an absolute prohibition from raising a claim in respect of a benami property as provided under Section 4 (1) of Act. The plaintiff, therefore, cannot raise any claim or prefer any action on the same cause of action as indicated in the plaint of the suit already filed by him. Therefore, this argument advanced on behalf of the Plaintiff appellant will also not be of any avail to him. 13. In view of the decision of Hon'ble Supreme Court reported in AIR 1989 SC 1247 , Mithilesh Kumari and another Vs. Prem Behari Khare, the provision of the Act including Section 4(I) is applicable even to pending suits and appeals. Admittedly Section 4(1) of the Act comes in the way of plaintiff. I, therefore, come to the conclusion that the application moved on behalf of the plaintiff appellant for withdrawal of suit and appeal with permission to file a fresh suit is not sustainable. The application is, therefore, rejected and the appeal is dismissed as no such suit is maintainable in view of Section4 (1) of the Benami Transactions (Prohibition) Act, 1988.