VITTAL DAULAT LAD Vs. ASHOK GOVIND TAWADE

JUDGEMENT

(1.) HEARD learned Advocates for the parties. Perused the records.

(2.) THIS appeal arises from judgment and decree dated 26th April, 1996 passed in S. C. Suit No. 5555 of 1995 by the City Civil Court, Mumbai. By the impugned judgment and decree the suit filed by the appellant has been dismissed in exercise of powers under Order VIII, Rule 10 of Civil Procedure Code.

(3.) IT is the contention of the appellant that though the impugned judgment and decree is stated to have been passed in exercise of powers under Order VIII, Rule 10 of Civil Procedure Code, the trial Court has rejected the claim of the appellant-plaintiff and has denied the relief prayed for in the suit without even following the procedure know to the law and without giving opportunity to the appellant to lead evidence in support of his contentions in the plaint. According to the learned Advocate the impugned judgment, though passed under Order VIII, Rule 10, does not disclose the application of mind to the matter in question nor it can be said to be a reasoned decision. In that connection attention is drawn to the decision of the Apex Court in the matter of (Balraj Taneja v. Sunil Madan), reported in A. I. R. 1999 S. C. 3381. It is further submitted that it was not the case of the appellant that the property was purchased in the name of the respondent, though the appellant is the real owner but it was the case of the appellant that the suit premises were jointly purchased and both the parties are co-owners of the suit premises having equal share therein and the entire amount of consideration was contributed in equal share by the appellant and the respondent and, therefore, the provisions of Benami Transactions (Prohibition) Act, 1988, hereinafter called as "benami Act", were not at all attracted in the matter, so also that the cause of action for filing the suit having arisen pursuant to the threat of dispossession given by the respondent through the Police Sub-Inspector on 27th August, 1995 and the suit having been filed on 2nd September, 1995, the same was very much within the time. According to the learned Advocate for the appellant both these facts were totally ignored by the Court below. In support of the contention regarding the suit being within limitation, reliance is sought to be placed in the decision of the Apex Court in the matter of (C. Mohammad Yunus v. Syed Unnissa), reported in A. I. R. 1961 S. C. 808.