Kerala High Court
C. P. Thomas vs Manu M. John on 10 August, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942
OP(C).No.1522 OF 2019
AGAINST THE ORDER IN OS 210/2012 OF MUNSIFF MAGISTRATE
COURT,THODUPUZHA
PETITIONER:
C. P. THOMAS, AGED 72 YEARS
S/O.PAILY, CHOURIYAMACKAL HOUSE,
M.I.G. 16, GANDHINAGAR,
THODUPUZHA EAST POST, IDUKKI-685585.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.MATHEW DEVASSI
RESPONDENTS:
1 MANU M. JOHN, S/O.JOHN, MANALEL HOUSE,
OPPOSITE DISTRICT LABOUR OFFICE,
SANTHANAM WARD, MULLACKAL VILLAGE,
AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT-688001.
2 JISHA GEORGE @ JISHA MANU,
W/O.MANU M.JOHN, MANALEL HOUSE,
OPPOSITE DISTRICT LABOUR OFFICE,
SANTHANAM WARD, MULLACKAL VILLAGE,
AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT-688001.
BY ADV. SRI.M.NARENDRA KUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.08.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OPC 1522/19
2
JUDGMENT
The plaintiff in O.S.No.210/2012 on the files of the Munsiff's Court, Thodupuzha, has filed this Original Petition, impugning Ext.P7 order of the said Court, as per which, his application for amendment of the plaint, namely, I.A.No.913/2017, has been dismissed as being not maintainable and without merits.
2. The petitioner alleges that the Trial Court has erred in issuing Ext.P7 order; and his specific assertion is that the amendments, that were sought to be made, are those which the Trial Court was obligated in law to allow, going by the provisions of Order VI Rule 17 of the Code of Civil Procedure (CPC for short). He thus prays that this Original Petition be allowed and that Ext.P6 be set aside; leading to his application for amendment, namely, I.A.No.913/2017, being allowed. OPC 1522/19 3
3. In refutation of the afore submissions made on behalf of the petitioner by his learned counsel, Sri.Mathew John, the learned counsel appearing on behalf of the respondents, Sri.Narendra Kumar, began by saying that the tenor of the suit filed by the petitioner refers to an alleged transaction in the nature of a 'benami property transaction', which is prohibited under the Prohibition of Benami Transactions Act, 1988 (hereinafter referred to as 'the Act' for short). He says that therefore, when the plaint contains averments indicating such a transaction, the Trial Court would obtain no jurisdiction to consider the same on account of the specific stipulations in Sections 45 and 65 of the Act, which mandates that the suit itself be transferred to the competent Adjudicating Authority under it.
4. After asserting as afore, OPC 1522/19 4 Sri.Narendra Kumar then submitted that even on the facts of this case, the amendments, as now sought for by the petitioner, could not have been allowed by the Trial Court and therefore, that Ext.P7 order is irreproachable. He thus prays that this Original Petition be dismissed.
5. When I hear the learned counsel for the parties as afore, it becomes obligated on my part to consider the nature of the amendments sought for by the petitioner-which are available from Ext.P4 being the copy of I.A.No.913/2017 - and to assess them from the touchstone of the averments in the plaint, the copy of which has been appended to this Original Petition as Ext.P3.
6. Going by the averments in the plaint, the specific allegations of the petitioner is that the plaint schedule property has been purchased by him, after expending the entire OPC 1522/19 5 sale consideration, in the name of his now deceased sister, namely, the mother of the 1 st respondent herein; and therefore, that he is entitled to its full ownership and possession. According to him, even though the sale consideration of the property was paid for by him fully, the registration of the document was made in the name of his deceased sister 'nominally' on account of his love and affection for her and on the specific understanding that the property will remain exclusively his in future.
7. After alleging so, through Ext.P4 interlocutory application the petitioner sought the benefit of the exception available under the Act-which is engraved under Section 2(9)(A)(iv)-whereby, a transaction or an arrangement is stipulated to be not a 'benami transaction', provided it is made in the name of the person and his brother or sister with OPC 1522/19 6 both their names jointly occurring in any document. According to the petitioner, since Ext.P3 Will left by their father mentioned his and his now deceased sister's name, the document which is now sought to be invalidated by him through the suit-being a settlement deed executed by the 1st respondent, in the name of his wife, the 2nd respondent, consequent to his claim that he has inherited the property from his late mother (who is the sister of the petitioner)- would not be hit by the rigour of the Act.
8. There can be no doubt that when the petitioner concedes that the property was purchased in the name of his now deceased sister, with the full consideration having been allegedly paid for by him, he may become entitled to the benefit of the exceptions with respect to a 'benami transaction' if he is able to establish the statutory factual OPC 1522/19 7 factors as are required for the same. That said, he now seems to contend that even though the original document is in the name of his sister, he is entitled to the benefit under Section 2(9)(A)(iv) of the Act, because he is in possession of a document in which both his and his sister's name are available. If that is so, obviously this is a matter which is to be decided by the Trial Court after evidence and it was not justified on its part to have dismissed the application for amendment holding, inter alia, that he is not entitled to the benefit of the exemption.
9. When I go through the order impugned before me, it is clear that the Trial Court has, in fact, gone into the merits of the amendments and has virtually found that the petitioner is not eligible to claim the benefits of the aforementioned exemption under Section 2(9)(A)(iv) of the Act. I am OPC 1522/19 8 afraid that it was not within the province of the Trial Court to have entered into the merits of the contentions of the petitioner at that stage; and all that it could have considered was whether the amendments were liable to be allowed under the ambit of Order VI Rule 17 of the CPC and nothing more nothing less.
10. Of course, the contention of Sri.Narendra Kumar is that the suit itself is not maintainable before the Trial Court and that it ought to have been transferred to the competent Adjudicating Authority under the Act. However, this argument does not, in any manner, impact the application for amendment sought for by the petitioner because, even if the suit is found liable to be transferred to the Adjudicating Authority, then the said authority would have to consider it on its merits, before moving forward. This aspect OPC 1522/19 9 has also not been considered by the Trial Court and for this reason, I cannot find in favour of the impugned order.
11. Resultantly, I am of the firm opinion that Ext.P4 interim application, namely, I.A.No.913/2017, filed by the petitioner, requires to be reconsidered by the Trial Court, also adverting to the assertions of Sri.Narendra Kumar that the provisions of the Act enjoins it to transfer the suit to the appropriate Adjudicating Authority, even before the amendments can be considered.
Resultantly, this Original Petition is allowed, leading to Ext.P7 order being set aside; with a consequential direction to the Trial Court to reconsider Ext.P4, after affording necessary opportunity to both sides and after adverting to all their contentions
- including which are recorded in this judgment; leading to a final order thereon, OPC 1522/19 10 as expeditiously as is possible but not later than one month from the date of production of a certified copy of this judgment before it.
To enable the Trial Court to act expeditiously in terms of the directions in this judgment, I direct the parties to mark appearance before it on 17.08.2020.
In the nature of the circumstances seen above, I do not deem it appropriate to make any order as to costs and to direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN RR JUDGE OPC 1522/19 11 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.210 OF 2012, MUNSIFF'S COURT, THODUPUZHA.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.210 OF 2012, MUNSIFF'S COURT, THODUPUZHA.
EXHIBIT P3 A TRUE COPY OF THE WILL DEED NO.9 OF 1123.
EXHIBIT P4 A TRUE COPY OF THE APPLICATION FOR AMENDMENT DATED 29.5.2017.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 14.8.2018 IN I.A.NO.913 OF 2017 IN O.S.NO.210 OF 2012.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN O.P. (C) NO.2434 OF 2018 DATED 5.12.2018.
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 19.2.2019 IN I.A.NO.913 OF 2017 IN O.S.NO.210 OF 2012.
EXHIBIT P8 A TRUE COPY OF THE AGREEMENT DATED 3.4.2004.