Har Narain vs Dharam Singh and ors.

J.V. Gupta, J.

This revision petition is directed against the order of the trial Court dated May 23, 1989, whereby the application under Order 1 Rule 10, Code of Civil Procedure (hereinafter called the Code) on behalf of Har Narain, who claimed himself to be the real owner and purchaser of the land, in dispute, in a preemption suit was dismissed.

The said application was opposed by the plaintiff on the ground that the applicant had no locus standi to file the present application and to be impleaded as a party in the presence of the vendeesdefendants in whose favour the sale was made."The learned trial Court dismissed the said application in views of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter called the Act), Which reads as under :

"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 be name whether against the person against 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) Nothing in this section shall apply

(a) where the person in whose name the property is held is a copacrener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacaty."

The learned counsel for the petitioner submitted that at this stage, this question could not be gone into because the defendants themselves admitted that the real owner was their father Har Narain and, therefore, the question could only be gone into if Har Narain is allowed to be made a party under Order 1 Rule 10 of the Code. The learned counsel further submitted that the said provisions do not bar the taking of such a plea when the person in whose favour the property was purchased does not contest the same. The learned counsel also referred to a Division Bench judgment of this Court in Dina Ram v. Rama Nand, 1979 Punjab Law Journal 26 wherein the scope of section 281A of the Income Tax Act, was considered, and the application under Order 1 Rule 10 of the Code in a preemption suit was allowed.

After hearing the learned counsel for the parties, in view of the provisions of section 4 of the Act, reproduced above, the applicant Har Narain, could not be allowed to be impleaded as a party under Order 1 Rule 10 of the Code. Such a plea of benami transaction was not available to him. Such matter came up for consideration before this Court in Narinder Kumar v. Munisubrat Dass Jain, 1989 Simla Law Journal 274, wherein it was held that the said Act was retrospective and was applicable to pending suits and appeals. The judgment of this Court in Dina Ram''s Case (supra), relied upon by the learned counsel for the petitioner has no relevancy as regards the facts of the present case; particularly in view of the latest statutory provision. In these circumstances, I do not find any illegality in the impugned order as to be interfered with in the revisional jurisdiction. Consequently, the revision petition fails and is dismissed with no order as to costs.

Since further proceedings were stayed at the time of motion hearing the parties are directed to appear in the trial Court on December 12, 1989.