SA/9/2011 of MRS SIMRAN KAUR @ SIMRANJEET KAUR and OTHERS Vs LT. COL. RETD MAHENDER SINGH BEDWAN and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALSecond Appeal No.09 of 2011

Mrs. Simran Kaur alias Simranjeet Kaur & others

……..Plaintiffs/Appellants

Versus

Lt. Col. (Retd.) Mahender Singh Bedwan and another

…….Defendants/Respondents

Shri Dharmendra Barthwal, learned counsel for the appellants. Shri Arvind Vashisth and Shri Pawan Mishra, learned counsel for the respondents.

Hon’ble V.K. Bist, J.

Dated: 10[th ]October, 2011

Present Second Appeal has been filed by the plaintiffs/appellants for setting aside the judgment and decree dated 08.10.2010 passed by 3[rd] Additional District Judge, Dehradun in Civil Appeal No.56 of 2010 as well as judgment and decree dated 04.09.2010 passed by Civil Judge (Sr. Div.), Dehradun in Original Suit No.396 of 2009.

2. Civil suit No. 396 of 2009, Mrs. Simran Kaur and others v. Lt. Col. (Retd.) M.S. Bedwan another was instituted by the plaintiffs/appellants for declaring the decree passed in O.S. No. 161 of 1994, Lt. Col. (Retd.) M.S. Bedwan Vs. Dilbhajan Singh as null and void. Further relief was sought for declaring plaintiff nos. 1 and 3 as owner in possession of the suit property. It was also prayed that defendants be restrained from

interfering in the peaceful ownership and possession of plaintiff nos. 1 and 3 over the property in question.

3. It is stated in the plaint that plaintiff No. 1 is the wife of plaintiff no.2 and plaintiff no. 3 is the son of plaintiff nos. 1 and 2. It is also stated in the plaint that the plaintiff no. 1 was earlier married with Mr. Ram Dayal Sharma and was blessed with three sons and two daughters. The sons were residing with the elder brother of Mr. Ram Dayal Sharma. The plaintiff no.1, because of love with plaintiff no.2, had to leave her husband Mr. Ram Dayal Sharma. Accordingly, the plaintiff no.1 and Mr. Ram Dayal Sharma divorced each other in 1984 by mutual consent. After the said mutual divorce, the plaintiff no.2 and plaintiff no.1 married on 11.06.1985 at Laxman Sidh and started living with each other as husband and wife. Later on legal divorce was sought and was granted by the Court on 24.2.1994. Plaintiff no. 1 had plenty of money from her previous husband. She purchased the property described in the schedule of the plaint from her own money but due to respect, same was purchased in the name of her husband. Plaintiff no. 2 became dishonest and started living with another woman. Thereafter, the plaintiff nos. 1 and 2 agreed that plaintiff no. 2 shall acknowledge the title of the plaintiff no. l over the property in suit and other properties. It was also agreed that in case plaintiff no. 2 is said to be the owner of the properties, then he will assign same in favour of plaintiff no. 1 in lieu of maintenance of the plaintiff no. 1 and her son i.e. plaintiff no. 3.

Accordingly, power of attorney dated 29.9.1995 was also executed in favour of plaintiff no. 1. Plaintiffs came to know on 12.8.200l/13.8.2001 that the defendant no. 1 has filed suit O.S. No.151 of 1994 and it also came to the knowledge of the plaintiff no. 1 that the defendant no. 1 had filed collusive suit no. 161 of 1994 Lt. Col. (Retd.) M.S. Bedwan Vs. Dilbhajan Singh and obtained an exparte decree by fraud on 29.10.1996. It also came to her knowledge that Mr. Dilbhajan Singh (plaintiff no. 2) also filed an application for setting aside the exparte decree and he got the same dismissed. Thereafter, the plaintiff no. 1 for herself and for plaintiff no. 2 filed Misc. Case No. 94 of 2001 Smt. Simran Kaur Vs. Lt. Col. (Retd.) M.S. Bedwan, but the Court of Civil Judge (S.D.)/FTC No.8, Dehradun dismissed the application of plaintiff no. 1 on 28.02.2006 on the ground that she was not party in the suit and Dilbhajan Singh i.e. plaintiff no. 2 has stated to have filed restoration application. The plaintiff no. 3 became major on 13.6.2009 and to save his property, he is exercising his option after becoming major to protect his right on the property. Therefore, suit was instituted.4. Defendants/respondents filed their written statement in the said suit and an application U/O 7 Rule 11 C.P.C. was also filed. Certain averments were raised regarding the maintainability of the suit on the ground of Order 7 Rule 11 C.P.C. in the written statement itself and thereafter the learned Court below framed an issue No.1 to this effect that whether the

suit is barred by the provisions of Order 7 Rule 11 C.P.C. Application filed U/O 7 Rule 11 C.P.C. was numbered as application no. 12C. Learned Court below after hearing the parties on issue no. 1 and an application 12C, passed an order thereby rejecting the plaint U/O 7 Rule 11 C.P.C. Feeling aggrieved from the order, plaintiffs/ appellants filed an appeal, which was dismissed on 08.10.2010.

5. Learned lower appellate court in its order observed that power of attorney given to plaintiff no.1, nowhere authorizes plaintiff no.1 to file any civil suit in any court on behalf of plaintiff no.2, therefore, the plaintiff no.1 does not possess any right to file any suit with regard to disputed properties on behalf of plaintiff no.2, in whose name the properties were actually purchased and particularly when plaintiff no.2 had already defended suit in this regard, which was decided by the Court and the legal remedy against that exparte judgment and decree was also exhausted. The courts below held that suit of plaintiff no.2 is barred by the principle of res-judicata. It was also held that suit filed by the plaintiff no.2 is also barred by law and without any cause of action.

6. Learned lower appellate court also observed that from the plain reading of the plaint, it is clear that the disputed property was purchased in the name of plaintiff no. 2 Sardar Dilbhajan Singh and it is stated in the plaint that the consideration for the same was provided by plaintiff no. 1 Mrs. Simran Kaur out of her

own funds. The lower appellate court came to the conclusions that said averments squarely covers the said transaction under the definition of Benami transaction as contained in section 2(1) of Benami Transactions (Prohibition) Act, 1988. By mere crafty assertions in the plaint, the transaction cannot be distinguished from Benami transaction to transaction entered in the fiduciary capacity or as trust in view of section 2(a) and section 4(3)(b) of the said Act. The lower appellate court also held that the status of plaintiff no. 2 is not of trustee but is of Benami. Therefore, there is no force in the arguments of the learned counsel for the appellants that the said transaction does not fall in the category of benami transaction. In my opinion, learned Court below has given correct findings in this regard and the suit filed on behalf of the plaintiff No. 1 on the basis of cause of action based on these averments is clearly barred under section 4(1) of the Benami Transactions (Prohibition) Act, 1988 and thus, plaint was rightly rejected on this ground.

7. The learned lower appellate court observed that pleading does not disclose any cause of action in favour of plaintiff no.3. The first lower court also observed that there is not whisper of any assignment of disputed property in favour of plaintiff no.3 in the contents of power of attorney. Therefore, plaint filed in the suit does not disclose any cause of action in favour of plaintiff no.3 to institute the suit. The lower appellate court reached to the conclusion that from the entire

reading of the plaint, it does not disclose any cause of action for filling the present suit by plaintiff no.3.

8. Learned counsel for the appellants submitted that the Court, while considering an application for rejection of the plaint, can look into only the averment made in the plaint and the documents filed by the plaintiff. The defence taken by the defendants is not to be considered while examining such an application and validity of the documents filed by the plaintiffs also cannot be examined at this stage. For this purpose, no amount of evidence can be looked into. He also submitted that while deciding application U/O 7 Rule 11, averment in the plaint as whole have to be seen. Learned counsel for the appellants contended that the courts below, by dismissing the suit, have misread and misapplied the provisions of Order 7 Rule 11 C.P.C. In support of his submission, learned counsel for the appellants relied upon the judgments of Delhi High Court in I.A. No. 4016/2011 Adesh Kanwarjit SinghBrar Vs. Babli Kaur & others. He also submitted that disputed question cannot be decided at the time of consideration of Rule 11 of Order VII C.P.C. He argued that learned Courts below erred in holding the land as Benami, which could be said on the basis of pleading in plaint. He relied upon the judgment of Hon’ble Supreme Court, reported in (2005) 7 SCC 510 Popat and Kotecha Property vs. State Bank of India Staff Association.

9. I have heard learned counsel for the parties. Order VII Rule 11 of Code of Civil Procedure reads as under:-

“11. Rejection of plaint.- The plaint shall be rejected in the following cases:-

(a) where it does not disclose cause of action; action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to so correct the valuation within time to be fixed by the Court, fails to do so; and the plaintiff, on being required by the Court to so correct the valuation within time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within time to be fixed by the Court, fails to do so; valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9; the provisions of Rule 9;

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

10. It is true that while considering an application under Order VII Rule 11 of C.P.C., the Court can look into only the averment made in the plaint and the document filed by the plaintiff. It is also true that disputed question of law cannot be decided at the time of considering application under Order VII Rule 11 C.P.C. But in the case in hand, from the plain reading of plaint, it is crystal clear that status of plaintiff no. 2

is of Benami. Thus, the suit filed by the appellants, is barred under the law. Moreover, suit was filed by plaintiff no.1 on behalf of plaintiff no.2 on the basis of power of attorney executed by plaintiff no.2 in favour of plaintiff no.1, which was filed along with the plaint. Paper no.7C/11 is that power of attorney on the basis of which the appellants/plaintiffs have filed the suit before the trial Court. From the perusal of this power of attorney, it is very much clear that it nowhere authorizes plaintiff no.1 to file any civil suit in any Court on behalf of plaintiff no.2 because the power of attorney given to plaintiff no.1 is authorizing him to sell the property described in it and to receive the sale consideration and to do ancillary work with regard to that sale only. Therefore, it is also clear that the plaintiff no.1, does not possess any right to file any suit with regard to disputed properties on behalf of the plaintiff no.2 in whose name the properties were actually purchased and particularly when plaintiff no.2 had already defended suit in this regard, which was decided by the Court and the legal remedy against that ex-parte judgment and decree was also exhausted. The Courts below have also rightly held that the suit filed on behalf of the plaintiff no.2 is also barred by law and without any cause of action. From the reading of plaint itself, it is also very clear that the plaintiff no.1 has already exhausted her legal remedies with regard to O.S. No.161 of 1994 Lt. Col.(Retd.) M.S. Bedwan Vs. Dilbhajan Singh. Judgments cited by the appellants’ counsel are of no help to the appellants.

11. I do not find any illegality in the judgments and orders of the lower court. Judgments are well discussed. No substantial question of law arises in the appeal to be answered by this Court. The Second Appeal is dismissed with cost.

Arpan

(V.K. Bist, J.) 10.10.2011