NISHIT M PRABHU VERLEKAR Vs. CHANDRANATH

JUDGEMENT

(1.) By order dated 14th June, 1984 the suit of the appellant who was the original plaintiff was dismissed as being not maintainable for not having complied with the requirement of notice under S.281A of the Income-tax Act 1961. .

(2.) The appellant had filed a suit for a declaration that he and respondent No. 1 and the dissolved partnership firm constituted by himself and respondent No. 1 are the absolute owners of a plot of land described in Exhibit B to the plaint on which a building was constructed and respondent No. 2 holds the said building on the plot as a nominee or Benamidar of the appellant and respondent No. 1 or the said partnership and, therefore, the respondent No. 2 has no right or interest of whatsoever nature in respect of the said plot and the building thereon.

(3.) Once this suit was instituted summonses were issued to all the defendants for settlement of issues. However, none of the defendants filed their defence by way of written statements. However, respondents 1 and 2 by their application dated 18th October, 1983 raised an objection to the maintainability of the suit on the ground that the notice averred to have been given by the appellant under S.281A of the Income-tax Act is not in accordance with law and, therefore, the suit is liable to be rejected at the threshold only. After hearing the parties, the learned trial Judge made the impugned order dated 14th June, 1984 by which he held that the notice averred to have been given in paragraph 28 of the plaint was not in compliance with S.281A and he, therefore, rejected the plaint. It is against this rejection that the original plaintiff has filed the present appeal.