9911796707
TMI Blog2021 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... PC. It is clear from order sheets that appellants/defendants did not file written statement and they had only filed an application under Order 7 Rule 11 of CPC. Hon'ble the Supreme Court has already held in Pawan Kumar [ 2019 (4) TMI 232 - SUPREME COURT ] that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintif in the plaint, without any doubt or dispute shows that the suit is barred by any law in force. Lower appellate Court has rightly observed that the order of learned trail Court being not sustainable in the eye of law set-aside and remitted back the case to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and application under Section 151 of the Code of Civil Procedure (for short 'the CPC') was also filed along with Batwaranama, which was replied by the appellants/defendants of the suit on 12.07.2019. The Civil Judge Class-II, Simga, passed an order dated 22.07.2019 allowing the application under Section 4(1) of Benami Transaction Prohibition Act, 1988 (for short 'the Act') and also under Order 7 Rule 11 (d) of the Code and rejected the plaintif's suit. Against this order, respondent No.1 filed an appeal before the Additional District Judge, Bhatapara, along with an application under Section 39 Rule 1 2 and under Section 151 of the Code. The learned Additional District Judge, vide order dated 20.01.2020, allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of evidence and cannot be decided at the stage of consideration of application under Order 7 Rule 11 (d) of the CPC. 6. I have heard learned counsel for the parties and perused the material available on record. 7. A bare perusal of the order sheets of trial Court filed by the appellants/defendants would show that on 19.06.2019, plaintif/respondent No.1-Yakub Mohammad had filed civil suit before the Civil Judge Class-II. Defendants/appellants herein did not file their written statement and an application under Order 7 Rule 11 of CPC was filed. On 22.07.2019, the learned trial Court allowing the application of the appellants/defendants rejected the suit on the ground of being not maintainable under Order 4 (1) of the Act. Section 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons standing in a fiduciary capacity and those towards whom he stands in such capacity. 9. Hon'ble the Supreme Court in the matter of Pawan (supra) has held in para 13, which reads thus:- 13. In the present case, the controversy has arisen in an application under Order 7 Rule 11 CPC. Whether the matter comes within the purview of Section 4(3) of the Act is an aspect which must be gone into on the strength of the evidence on record. Going by the averments in the plaint, the question whether the plea raised by the appellant is barred under Section 4 of the Act or not could not have been the subject-matter of assessment at the stage when application under Order 7 Rule 11 CPC was taken up for consideration. The matter required fuller ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
