High Court of Kerala

Manu M. John and Ors. Vs. C.P. Thomas

MANU/KE/3064/2020

17.11.2020

Property

The question of jurisdiction is a question of law and can be raised at any point of time

The Petitioners seeks to quash Exhibit P-9 order, granting leave to Respondent to amend the plaint. Whether a civil Court can consider an application when its jurisdiction is alleged to be barred by operation of law is the question that is agitated for the second time before present Court. It is submitted that, the original petition be allowed by setting aside Exhibit P-9 order and matter be remitted back to the Trial Court.

The Honourable Supreme Court in R. Rajagopal Reddy (dead) by LRs and others v. Padmini Chandrasekharan (dead) by LRs has held that, the Act will not apply to suits, claims and action to enforce any right in property held benami against person in whose name such property is held, only if such proceeding is initiated prior to the coming into force of the Act i.e., w.e.f. 5th September, 1988, the date on which the prohibition came into operation.

The case set up by the Respondent is that plaint 'B' schedule property was purchased by him in the name of Mary -- his sister as per sale deed in the year 1991, which is after the coming of the Act. The suit was instituted only in 2012. Thus, there is no doubt, if it is established that the transaction falls within the foul of the Act, the jurisdiction of the Trial Court stands barred.

In T.M. Bagasarwalla v. H.R. Industries, the Honourable Supreme Court has held that, when an objection as to jurisdiction of a civil Court is raised to entertain a suit and to pass any interim orders therein, the Court should decide the question of jurisdiction in the first instance at the earliest possible time. In Hiralal Vallabbram v. Sheth Kasturbhai Lalbhai and others, the Honourable Supreme Court has held that, the question of jurisdiction is a question of law and can be raised at any point of time.

This Court had in Exhibit P-8 judgment succinctly directed the Court below to consider the question whether the suit need to be transferred to the Adjudicating Authority. However, the Court by Exhibit P-9 impugned order allowed the application for amendment, by holding that the argument addressed does not have any impact on the amendment.

Exhibit P-9 order is erroneous and unsustainable in law and is liable to be interfered with because when the Petitioners have raised a specific plea that the suit is hit by the prohibitions under Sections 4 and 45 of the Act, the Trial Court ought to have considered the said question as a preliminary issue, as laid down in T.M. Bagasarwalla v. H.R. Industries, before making an endeavor to decide on Exhibit P-5 application. Matter remitted back to the Trial Court for de novo consideration, to decide on the maintainability of the suit in view of Sections 4 and 45 of the Prohibition Of Benami Property Transactions Act, 1988, as contemplated under Order VII Rule 11 (d) of the Code of Civil Procedure, 1908 (CPC) or decide whether the suit has to be transferred in light of Section 65 of the Act, in which case the Trial Court shall try the question as a preliminary issue, as provided under Order XIV Rule 2 (2) of the CPC.

Relevant

R. Rajagopal Reddy (dead) by LRs and others v. Padmini Chandrasekharan (dead) by LRs [MANU/SC/0061/1996
], Hiralal Vallabbram v. Sheth Kasturbhai Lalbhai and others [MANU/SC/0337/1967
], T.M. Bagasarwalla v. H.R. Industries [(MANU/SC/0280/1997
], Hiralal Vallabbram v. Sheth Kasturbhai Lalbhai and others [MANU/SC/0337/1967
]

Tags : Amendment Plaint Jurisdiction

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