- (1.) INSTANT appeal under section 96 of the Code of Civil Procedure has been filed by the appellant-plaintiff against the judgment and decree dated 21/10/1992 passed by Additional District Judge No.6, Jaipur City, Jaipur dismissing the Civil Suit No.260/1991 on preliminary issue no.7 holding that the suit is not maintainable on account of the provisions of Benami Transactions (Prohibition) Act, 1988 (in short the Act of 1988).
(2.) HEARD learned counsel for the parties and perused the impugned judgment and decree as well as the material available on the record. Learned counsel for the appellant contended that alleged transaction was not a Benami transaction but it a sham transaction, therefore, the Benami Transactions (Prohibition) Act,1988 (in short the Act of 1988) does not apply. It was next submitted that trial court has based its verdict on this issue on the basis of the judgment rendered in the case of Mithilesh Kumari and another Vs. Prem Behari Khare, reported in AIR 1989 Supreme Court 1247 which has subsequently been overruled by the Honourable Apex Court in the case of R. Rajagopal Reddy (dead) by L.Rs. and others Vs. Padmini Chandrasekharan (dead) by L.Rs., reported in AIR 1996 Supreme Court 238. . Learned counsel for the respondent frankly admits that the judgment rendered in Mithilesh Kumari and another's case (supra) has been overruled and now it is not a good law, therefore the case may be remanded back to the trial court for afresh decision. I have considered the rival submissions made at the bar. The trial court decided issue no. 7 in favour of the defendant and observed that the provision of Section 4 of the Act of 1988 are applicable in the pending cases while relying upon the judgment rendered in Mithilesh Kumari and another's case (supra) but this point has again been considered by three Judges Bench of the Supreme Court in R. Rajagopal Reddy (dead) by L.Rs. and others' case (supra) and it has been held that Section 4(1) of the Act of 1988 cannot be applied to suit, claim or action to enforce any right in property held benami against person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force of Section 4(1) of the Act of 1988 and this view has subsequently been followed by the Honourable Apex Court in G. Mahalingappa's case (supra). In view of the above, since the judgment delivered in Mithilesh Kumari and another's case (supra) has been overruled, therefore, the impugned judgment and decree deserves to be quashed and set aside. Consequently, this appeal is allowed and the impugned judgment and decree is quashed and set aside and the matter is remitted back to the trial court for afresh decision on merits in accordance to law. Parties are directed to appear before the trial court on 7/12/2009. Office is also directed to send the record to the trial court along with a copy of this judgment forthwith. Since the suit pertains to the year 1981, therefore, the trial court is directed to decide the suit expeditiously as early as possible. ;