Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2020 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (3) TMI 589 - HC - Benami PropertyBenami transactions - application was filed for summoning of the documents before leading rebuttal evidence - application filed by the petitioner under Order XVI Rule 6 CPC read with Section 151 CPC for summoning documents/record from the Deputy Commissioner, Income Tax Department - HELD THAT:- The conclusion of the trial court pertaining to the irrelevance of the documents is apparently against the record inasmuch as, as already noticed, the plaint is inter alia based on the allegation pertaining to transaction being Benami and irrespective of the fact as to whether the same would have any implication ultimately qua the relief claimed in the suit, the petitioner essentially is entitled to lead evidence qua the said fact and once the documents sought to be summoned pertain to the said aspect, the rejection by indicating the same as irrelevant cannot be sustained. The other finding based on the provisions of Section 4 of the Act, 1988 also has no substance in view of the fact that the provision restricts the right of those seeking enforcement or defend an action based on same being Benami, however, the third parties are not prevented from alleging and/or proving the said aspect and, therefore, the rejection on this count also cannot be sustained. Various submissions made by learned counsel for the respondent pertaining to delay in the suit, the fact that the plaintiff is not entitled to lead rebuttal evidence and that provisions of Order VII Rule 14 and Order XI CPC were not followed, apparently have no substance inasmuch as once the court has permitted leading of rebuttal evidence, the defendant cannot preempt the fact as to what evidence can be or would be led by the plaintiff. The provisions of Order VII Rule 14 and Order XI CPC also have no application inasmuch as neither the documents are available with the plaintiff nor the same are claimed to be available with the defendants and, therefore, the fact that no application under the provisions of Order VII Rule 14 and Order XI CPC was filed, would have no implication whatsoever. So far as the observations made by the trial court, though the same has not been made basis for rejection of the application, that the particulars of the documents have not been indicated, suffice it to observe that once the requisition as prayed by the petitioner is issued, the department has to respond on the said aspect and same also in view of submission that record is maintained property wise, cannot be preempted at this stage. In view of the above discussion, the writ petition is allowed. The order dated 3/2/2020 passed by the trial court is quashed and set aside. The application filed by the petitioner under Order XVI Rule 6 CPC is allowed. The trial court is directed to summon the documents/record as prayed by the petitioner in its application under Order XVI Rule 6 CPC from the office of Deputy Commissioner, Income Tax Department, Jaipur.
|