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2011 DIGILAW 2167 (PAT)

Nutan Mishra v. Geeta Devi

2011-10-18

S.K.KATRIAR

body2011
ORDER Heard Mr. Ranjan Kumar Dubey for the petitioner, and Dr. Manoj Kumar for respondent no.1. Defendant no.8 of Title Suit No. 175 of 1988 has preferred this civil revision application under the provisions of Section 115 of the Civil Procedure Code, and challenges the order dated 16.8.2007, passed by the learned IInd Munsif, Bhagalpur, whereby he has rejected the application filed by the present petitioner under the provisions of Order 14, Rule 2, read with Order 7 Rule 11(d), of the Civil Procedure Code, whereby he had made the prayer that the question of maintainability of the suit may be decided as a preliminary issue. 2. While assailing the validity of the impugned order, learned counsel for the petitioner submits that, on the own showing of the plaintiff, it is evident that he is seeking enforcement of a benami transaction which is prohibited by Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as ‘the Act’). In his submission, therefore, the present suit is not maintainable in view of section 4 of the Act. The contention is stated only to be rejected. Section 4 of the Act prohibits a benami transaction, it does not bar a suit with respect to a benamini transaction, whether or not a transaction is a benami transaction, or the rights of the benamidar, can be adjudicated by the civil court of competent jurisdiction. It is open to the civil court to declare that the transaction in question is a benami transaction, can not be enforced in favour of the real owner, and the title now vests in the ostensible owner. In other words, a benami transaction is prohibited and unenforceable in view of section 4 of the Act, not a suit with respect to such a transaction. Law is well settled that the suit is the basic remedy for the citizen of this country for adjudication of civil rights and liabilities. The Act does not create any specialized forum for adjudication of a suit under the Act. The civil court is the only forum to decide matters relating to alleged benami transactions. We entirely agree with the order of the learned court below. 3. The civil revision application is dismissed. ?