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TMI Blog2020 (11) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousted. Hence the original petition be dismissed. 7. In Church of Christ Charitable Trust & Education Charitable Society v. M/s.Ponniamman Educational Trust [(2012) 8 SCC 706] the Honourable Supreme Court has, interalia, held that, Order VII Rule 11 of the Code of Civil Procedure (Code) makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in plaint; that the averments in the plaint are germane; that the pleas taken by the defendant in the written statement are wholly irrelevant and that the Trial Court can exercise the power under Order VII Rule 11 at any stage of the suit - before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of trial. The above legal position has been reiterated by the Honourable Supreme Court in Central Provident Fund Commissioner, New Delhi and others v. Lal.J.R. Education Society and others [(2016) 14 SCC 679]. 8. Based on the settled position of law, let us first examine Exhibit P-1 plaint, which instituted in the year 2012. The significant averments in the plaint pertaining to the purchase of plaint 'B' schedule property are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is an iron gate fixed at the North Western corner of the B schedule property in the western end of the plaint C schedule pathway which is an opening towards B schedule property from the Western side public road. The plaintiff is using the said gate and plaint C schedule pathway is used for the ingress and egress towards B and A schedule properties. 5. The plaintiff submitted that the document happened to be nominally taken in the name of the plaintiffs sister only on the fact that the plaintiff at that point of time was working in Merchant Navy and such during most of the period the plaintiff was sailing in the ship in which he was working. During that period the Government decided to acquire the plaint schedule properties for the construction of excise department building and it was resisted through the filing of petitions and thereby the government dropped the said plan. The plaintiff initially intent to construct a shopping complex on the western portion of the B schedule property and thereafter to construct a residential house in the A schedule property purchased in his name by utiliziing the advantage obtained from the B schedule property purchased in the name of Mary. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means any property which is the subject matter of a benami transaction and also includes the proceeds from such property'. (iii) Section 2 (9) of the Act, reads as follows: "benami property" means any property which is the subject matter of a benami transaction and also includes the proceeds from such property" (iv) Section 4 of the Act, reads as follows: "Prohibition of the right to recover property held benami:- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner or such property." (v) Section 45 of the Act, reads as follows: "Bar of jurisdiction of civil Courts- No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which any of the authorities, an Adjudicating Authority or the Appellate Tribunal is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other forum in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act'. (vi) Section 65 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that plaint 'B' schedule property was purchased by him in the name of Mary ― his sister as per sale deed 1333/1991 i.e., 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. 16. In T.M.Bagasarwalla v. H.R.Industries [(1997 (3) SCC 443] 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. 17. In Hiralal Vallabbram v. Sheth Kasturbhai Lalbhai and others [AIR 1967 SC 1853] 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. 18. 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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