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2008 DIGILAW 51 (RAJ)

Hawaldar Birda Ram Burdak v. Mohan Lal

2008-01-08

H.R.PANWAR

body2008
JUDGMENT 1. - This civil revision petition under Section 115 of the Code of Civil Procedure , 1908 (for short 'CPC') is directed against the order dated 07.12.2007 passed by the Additional District Judge No.7, Jaipur City, Jaipur (for short 'the trial Court') in Civil Suit No. 136/2006, whereby the application filed by the defendant-petitioner under Order 7 Rule 11 CPC was dismissed. 2. I have heard learned counsel for the petitioner and carefully gone through the order impugned as also the plaint filed by the plaintiff-nonpetitioner for specific performance of the contract and permanent injunction. 3. I have also gone through the alleged agreement dated 04.04.2005 sought to be performed by the suit in question. 4. It is contended by the learned counsel for the petitioner that the suit is barred by law as it is hit by the provisions of Benami Transaction Prohibition Act, 1988. 5. Upon careful perusal of the order impugned and the plaint as also the agreement dated 04.04.2005, in my view, such a question cannot be decided without affording the parties to lead the evidence as it is mixed question of fact and law. 6. In the circumstances, therefore, in my view the trial Court was justified in dismissing the application filed by the defendant-petitioner under Order 7 Rule 11 CPC. However, learned counsel submits that the defendant-petitioner would move before the trial Court for framing of the issues as to whether the transaction in question is Benami and the transaction is hit by the provisions of Benami Transaction Prohibition Act, 1988 and if such an application is moved, the trial Court may be directed to frame the issues and decide the same as preliminary issues. 7. In this view of the matter, the revision petition is dismissed. However, it is open for the petitioner to move before the trial Court for framing of issues to the extent that the transaction in question is Benami and the transaction is hit by the provisions of Benami Transaction Prohibition Act, 1988 and if such issue is framed, the trial Court may decide the issue as preliminary issue.Appeal dismissed. *******