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TMI Blog2015 (2) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... s a cause of action or whether the suit is barred under any law. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the Plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application Under Order VII Rule 11 the stand of the Defendants in the written statement would be altogether irrelevant. The order of the High Court dated 26th June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiffs, they had made funds available to the Defendants Nos. 1 and 2 for the said purpose and had entirely relied on them. 3. The specific case of the Plaintiffs in Original Suit No. 71 of 2002 is to the effect that the property belonging to one Professor N.S. Iyengar was identified for purchase and an agreement was drawn up with the said person. According to the Plaintiffs, they were informed by the Defendants that Professor Iyengar has resiled from the agreement which required filing a suit for specific performance. According to the Plaintiffs when they visited Hyderabad in November/December 1999, they could notice some construction activity in the plot belonging to Professor Iyengar. It is at that point of time that they had m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a cause of action or whether the suit is barred under any law. At the stage of exercise of power Under Order VII Rule 11, the stand of the Defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. 6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roornagar regarding the schedule property. c) For permanent injunction restraining the Defendants, their men and Ors. on their behalf from further alienating the schedule property in favour of any other person. d) For costs. 8. Similarly in Original Suit No. 72 of 2002, according to the Plaintiffs, they could come to know of the sale deed dated 31.8.1979 executed in favour of the Plaintiff No. 2 and the Defendant No. 3 only in the year 1999 immediately whereafter they had issued the legal notice dated 20.12.1999. According to the Plaintiffs it is only subsequently that they came to know of sale of half of the scheduled property in favour of the Defendant No. 5. Accordingly they had filed the Original Suit No. 72 of 2002 claiming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint, are hit by the provisions of the Benami Transactions (Prohibition) Act, 1983? 11. While in Civil Revision Petition No. 1398 of 2003 the said issue was decided in favour of the Plaintiffs, in Civil Revision Petition No. 1399 of 2003 the same was decided against the Plaintiffs. The finding of the High Court in this regard proceeds on the basis that the Plaintiffs had admitted in the plaint that the property purchased in the name of the Defendant No. 3 belonged to the Plaintiffs. Therefore the provisions of Benami Transactions (Prohibition) Act, 1988 would apply. We fail to see how the aforesaid view of the High Court can be sustained. The suits in question were not filed for recovery of any property held in benami by the Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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