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2009 DIGILAW 680 (MAD)

Kothandarama Naidu & Another v. Vasantha & Others

2009-03-05

G.RAJASURIA

body2009
Judgment :- Inveighing and impugning the order dated 012. 2007 passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.No.16301 of 2007 in O.S.No.5518 of 2005, this civil revision petition is focussed. 2. A resume and epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The respondents/plaintiffs herein filed the suit O.S.No.5518 of 2005 seeking the following reliefs: to declare that the plaintiffs are class II legal heirs of the deceased Late Padmavathy to declare that the release deed 22.02.63 Document No.491/63 executed by the late Padmavathy in favour of the first defendant is null and void. to declare that the Settlement Deed executed by the first defendant in favour of the second defendant vide Document No.1777/04 dated 20.07.2004 is null and void. to declare that the Settlement Deed dated 9. 2003 Doct.No.1991/03 in favour of the second defendant is null and void. to declare that the sale deed dated 12. 63 Doct.No.400/63 in favour of the first defendant is null and void as Benami Transaction. consequently an order of injunction restraining the defendants or their men, agents or servants from alienating in any manner the suit schedule mentioned property. While so, the defendants entered appearance and filed their written statement. Thereafter, it appears the matter was posted for trial and PW1 was examined and documents were marked and at that stage, the defendants filed I.A.No.16301 of 2007 under Order VII Rule 11 of the Code of Civil Procedure for rejecting the plaint on the main ground that the bedrock of the plaint is based on Benami Transaction and the suit itself was also barred by limitation. After hearing both the sides, the lower court dismissed the said I.A. Being disconcerted by and dissatisfied with the order of the lower court, this revision has been focussed on various grounds, inter alia thus: The order of the lower court is against law and weight of evidence as the delay aspect alone was considered by the lower Court without considering the applicability of The Benami Transactions (Prohibition) Act, 1988, and without application of mind, the order was passed. The lower court failed to consider the decision of the Honble Apex Court reported in (2003)1 CTC 557). 3. Despite printing the names concerned, none appeared and there is no representation on their behalf. 4. The lower court failed to consider the decision of the Honble Apex Court reported in (2003)1 CTC 557). 3. Despite printing the names concerned, none appeared and there is no representation on their behalf. 4. A plain perusal and poring over of the typed set of papers including the copy of the order of the lower Court would exemplify and expatiate, display and demonstrate that the lower court in its order evinced that the points raised by the defendants could be considered while deciding the suit and not in the application under Order 7 Rule 11 of the Code of Civil Procedure. 5. At this juncture, I would like to recollect and call up, the scope of Order 7 Rule 11 of the Code of Civil Procedure. The rejection of the plaint under the said provision would arise, if at all ex facie and prima facie from the averments in the plaint itself, the plaint could be rejected. If the circumstances are such that after entertaining evidence on both sides only on merits, the matter has to be decided then, the question of invoking Order 7 Rule 11 of the Code of Civil Procedure would not arise. The following decisions of the Honble Apex Court could rightly be cited fruitfully. 1. AIR 1996 SC 2140 (State of Orissa vs. Klockner & Company and others) 2. AIR 1999 SC 2044 (V.S.Achuthanandan vs. P.J.Francis and another) 3. AIR 1982 SC 1559 (Roop Lal Sathi vs. Nachhattar Singh) A plain perusal of those decisions would amply make the point clear that the facts and circumstances involved in this case would not attract Order 7 Rule 11 of the Code of Civil procedure. 6. Certain excerpts from the plaint would run thus: "10. The plaintiff submits that the late Padmavathy purchased vacant land from her own funds in the year 1959 from one Thiagarajan and Swarnamani; the suit scheduled mentioned property measuring about 859 sq.ft.Door No.44 and 45 Demellow Road, Pattalam, Chennai-12 by a registered sale deed dated 30.4.59 vide Document No.1044/59. The said late Padmavathy also purchased the adjacent vacant site in the name of R.K.Raman alias Kothandaraman (1st defendant) measuring 1113 sq.ft.vide Doct.No.400/63 dated 12. 63 in R.S.No.1725, 1717 and 1718. O.S.No.349. R.S.No.1723, C.C.No.1099. Land No.38/L Door 1/34 in the northern side of Demollows Road, for her own funds and purchased in the name of 1st defendant as Benami transactions. The said late Padmavathy also purchased the adjacent vacant site in the name of R.K.Raman alias Kothandaraman (1st defendant) measuring 1113 sq.ft.vide Doct.No.400/63 dated 12. 63 in R.S.No.1725, 1717 and 1718. O.S.No.349. R.S.No.1723, C.C.No.1099. Land No.38/L Door 1/34 in the northern side of Demollows Road, for her own funds and purchased in the name of 1st defendant as Benami transactions. The defendant had no source of income. At the time of sale deed the said Kothandaraman aged only 19 years. .................. 11. The plaintiffs submit that the Padmavathi considering the age of the first defendant, who has not even attained his majority and with a view to settle him in life allowed the first defendant to run a fire wood shop in the portion of the schedule mentioned property purchased by her. The balance portion was occupied on rental basis. 12. ....................................................................... The plaintiffs submit that the said Padmavathi had no iota of doubt in the assurances made by the first defendant or her other brother Ramachandra Niadu that they will take care of her aged mother and her other sisters. The plaintiffs submit that, during 1963, the first defendant taking undue advantage of his sisters good intention and faith she had on him, got the property purchased by the said Padmavathi transferred in his name, on the guises that the property was purchased by the first defendant himself from his source of income in the name of his sister as a benami. It is pertinent to note here that, at the time of purchase of the said portion of the property by Padmavathi in the year 1959, the first defendant would have been either a minor or that he would have just attained majority, with no sufficient source of income to buy the property. Further, there was no necessity either for the first defendant to purchase the same in her sisters name as a benami. The plaintiffs submits that they are in joint possession of the suit property." (emphasis supplied) A bare perusal of those excerpts in addition to the other portions of the plaint would display it is clear that the plaintiffs approached the Court stating that the B Scheduled property was purchased Benami in the name of D1 by Padmavathi but not the A Scheduled property. However, it appears that the settlement deed was executed by Padmavathy in favour of D1 for some reasons. However, it appears that the settlement deed was executed by Padmavathy in favour of D1 for some reasons. The plaintiffs impute as though the first defendant pleaded benami and got the A Scheduled property also in his favour even though it was not covered by any benami transaction. 7. It is the contention of the plaintiffs that D1 obtained the property with some assurance that he would maintain the family of Padmavathy, etc. Hence these are all complicate pleas, which could be gone into only at the time of trial. Even though the lower court has not elaborately dealt with the points, nonetheless, the analysis of facts would indicate that these complicate facts cannot be decided under Order 7 Rule 11 of the Code of Civil Procedure for simply rejecting the plaint. The decision relied on by the revision petitioners/defendants reported in (2003) 1 SCC 557 (Saleem Bhai and others vs. State of Maharashtra and others), no doubt would highlight the point that at any stage of the suit, Order 7 Rule 11 of the Code of Civil Procedure could be invoked. 8. Here my discussion supra would reveal and evince that the facts involved and pleaded are not so simple as the revision petitioners/defendants try to project so as to bring it under Order 7 and Rule 11 of the Code of Civil Procedure. One of the three decisions already referred to by me reported in AIR 1982 SC 1559 (Roop Lal Sathi vs. Nachhattar Singh) would highlight that there cannot be any piecemeal rejection of the plaint also. Hence for all these reasons, I could see no merit in this revision. 9. Accordingly, the revision fails and the same is dismissed confirming the order passed by the lower court in I.A.No.16301 of 2007. No costs. Consequently, the connected miscellaneous petition is closed.