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Madhya Pradesh High Court · body

2016 DIGILAW 112 (MP)

Sukumar Bhatnagar v. Mohita Vishwas

2016-02-11

R.S.JHA

body2016
ORDER 1. This petition has been filed by the petitioner being aggrieved by the order dated 24.7.2015 by which the application filed by the petitioner under Order 7 Rule 11 CPC seeking dismissal of the plaint has been rejected and it has been held that the issue raised by the petitioner is a mixed question of law and facts which can be decided only after the entire evidence of the parties has been adduced. 2. Learned counsel for the petitioner submits that it is settled law that an application under Order 7 rule 11 CPC can be decided only on the basis of averments of the plaint and no orders in respect of merits of issue raised therein or on the basis of any other evidence, can be passed by the Court below. It is submitted that the Court below while deciding the application has taken into consideration several factors and issues which were not part of the plaint and while doing so has totally ignored the specific avements of the plaintiff in the plaint that the property was purchased benami. It is submitted that in view of the aforesaid averment of the respondent in the plaint itself, the bar contained under the Benami Transaction (Prohibition) Act, 1988 (for brevity the 'Act') is attracted to the suit filed by the respondent-plaintiff. 3. Learned counsel for the respondent per contra submits that the suit as filed by the respondent-plaintiff is in fact not barred by the provisions of the Act specifically in view of section 4(3) (a) of the Act. It is stated that quite apart from the above, the land in question was purchased by the father of the petitioner in the year 1968 – 1969, when the Act was not in existence and, therefore, the provisions of the Act cannot be applied to such an old transaction. It is further stated that in view of the averments of the plaint itself, it is apparent that the prohibition which is sought to the invoked by the petitioner is not applicable in the present case and, therefore, the Court below has rightly rejected the application, more so as the issue as to whether the suit is barred or not is a mixed question of law and facts and could not have been decided in an application under Order 7 rule 11 CPC. 4. 4. Having heard learned counsel for the parties, in the considered opinion of this Court, the Court below is required to consider the application under Order 7 rule 11 CPC in terms of the provisions of Order 7 rule 11 CPC alone but the Court below while deciding the application has taken into consideration several facts even though they were not mentioned in the plaint. 5. In the circumstances, the order passed by the Court below is set aside. The matter is remitted back to the Court below for reconsideration and re-decision on the application filed by the petitioner under Order 7 rule 11 CPC. 6. It is however made clear that this Court has not expressed any opinion on the merits of the case and, therefore, the Court below would be at liberty to examine the rival contentions of the parties including the provisions of the Act and, thereafter, if it still feels that the application under Order 7 rule 11 CPC deserves to be rejected or the issue raised requires adjudication only after adducing evidence at the time of hearing, it would be at liberty to take such a decision. 7. With the aforesaid observation, the petition stands disposed of.