C.S. Dias JUDGMENT
C.S. Dias, J.
1. 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 this Court.
2. The petitioners -- the defendants in O.S. No. 210 of 2012 of the Court of the Munsif, Thodupuzha (Trial Court) -- seek to quash Exhibit P-9 order, granting leave to respondent to amend the plaint.
3. The thumbnail sketch of the facts in the original petition are: the petitioners are the defendants in O.S. No. 210/2012 (Exhibit P-1) filed by the respondent. The respondent has sought a decree, inter-alia, to declare that the settlement deed executed by the 1st petitioner in favour of his wife -- the 2nd petitioner -- is invalid and not binding on the respondent, on the ground that it was the respondent who had paid the sale consideration for the purchase of plaint 'B' schedule property in the name of his sister -- the mother of the 1st petitioner. The petitioners have filed Exhibit P-2 written statement and Exhibit P-3 additional written statement refuting the allegations in the plaint. The right claimed by the respondent in respect of 'B' schedule property is hit by the provisions of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as 'Act'). The Act was amended on 1.11.2016 by inserting Section 2(9) (A) (b) (iv), carving out an exception in respect of properties transferred, held or where the consideration is paid by a brother or sister. The respondent in order to wriggle out of admissions in the plaint and to bring the suit within the fold of the exception, has filed I.A. No. 913/2017 (Exhibit P-5), seeking leave to amend the plaint and insert an additional paragraph. The Trial Court had dismissed the application. The respondent challenged the order before this Court in O.P.(C) No. 1522/2019. This Court by Exhibit P-8 judgment set aside the order and directed the Trial Court to re-consider the matter. Consequent to the remand, the Trial Court by the impugned Exhibit P-9 order has allowed Exhibit P-5, granting leave to the respondent to amend the plaint. It is aggrieved by Exhibit P9 that the petitioners are before this Court.
4. Heard Sri. M. Narendra Kumar, the learned counsel appearing for the petitioners and Sri. Mathew John, the learned counsel appearing for the respondent.
5. Sri. M. Narendra Kumar argued that the oblique intention of the respondent in filing Exhibit P-5 was to claim the benefit of the exception under Section 2 (9) (A) (b) (iv) of the Act, inserted by Benami Transactions (Prohibition) Amendment Act, 2016 (Act 43 of 2016), which came into effect from 1.11.2016. According to him, the amendment is impermissible in law. The sheet anchor of his contentions were that the Trial Court failed to appreciate that this Court had categorically directed Exhibit P-5 application to be reconsidered after adverting to all the contentions including that recorded in Exhibit P-8 judgment. A reading of the averments in Exhibit P-1 plaint would substantiate that the transaction alleged by the respondent is one squarely hit by the provisions of the Act. The jurisdiction of the Trial Court stands ousted in light of Section 45........