Shivakant Prasad, J. - (1.) This miscellaneous appeal is directed against the judgment and the order/decree of remand dated 31.03.2008 and 7.4.2008 respectively passed in Title Appeal No. 25 of 2007 by the learned District Judge, Purba Medinipur reversing the judgment and order dated 31.3.2007 passed in T.S. No. 22 of 2005 by the learned Civil Judge (Junior Division), Haldia, rejecting the plaint on the point of maintainability, inter alia, on the grounds that the learned appeal Court below has acted illegally and without jurisdiction in failing to consider that the plaint does not disclose that benami transaction in question comes within Section 4 of Benami Transaction (Prohibition) Act, 1988 and there existed fiduciary relation between plaintiffs and defendants and also erred in law by holding that the relevant words trustee or fiduciary relationship has been omitted in the plaint due to laches of the advocate of the plaintiffs, application for amendment should be allowed. It is contended that the appeal Court below ought to have rejected the respondents' application for amendment at the appellate stage as the said application was not filed before the trial Court and thereby misdirected itself by holding that unless the proposed amendment is allowed there would be failure of justice.
(2.) Accordingly, the appellants have prayed for setting aside the judgment impugned.
(3.) Mr. Gopal Chandra Ghosh, learned counsel appearing for the appellants/defendants at the outset invites my attention to the plaint and the prayer portion made therein whereby the respondents/plaintiffs instituted the suit for a decree of declaration that the plaintiffs have right, title or interest and possession in the suit property on declaration that the Deed of Exchange dated 22.1.1986 being Deed No. 405, Deed of Exchange No. 407 dated 22.1.1986 and Deed of Sale dated 11.10.1987 being Deed No. 6823 are benami transaction and further prayed for decree for permanent injunction restraining the defendants from disturbing the peaceful possession of suit property. Further my attention is invited to the order passed by the trial Court vide No. 14 dated 31.3.2007 in T.S. No. 22 of 2005 whereby on an application filed under Order 14 Rule 22 of the Code of Civil Procedure on behalf of the defendants applicants herein questioning the maintainability of the suit, the learned trial Court dismissed the suit by rejection of the plaint by holding that the suit is barred under the provision of Benami Transaction (Prohibition) Act, 1988 and thereby allowed the application dated 2.1.2007 questioning the maintainability of the suit, bearing in mind the fact that the plaint does not disclose that the defendants were a trustee or were standing in a fiduciary capacity in respect of the plaintiff in order to get the benefit of exception to Section 4 of the said Act. It is further observed that the relationship between the plaintiffs and the defendants is not that of wife or unmarried daughters so the benefit of Section 3 cannot be resorted to by the plaintiffs and in arriving his decision he relied on a case of Probodh Chandra Ghosh vs. Urmila Dassi, 2000 AIR(SC) 2534 wherein it has been held that Section 4(1) of the Act though not retrospective in operation would cover past transactions between the real owner and benamdar but only in sense that transactions having taken place prior to commencement of the Act, said claims or action in respect thereof would not lie after coming into force of the Act.;