Case Law : Section 43 of the Benami Transaction (Prohibition) Act, 2017

2021 LHC 4054

The preamble to Benami Act recites that it has been enacted to prohibit benami transactions and the right to recover property held benami as well as for matters connected therewith or incidental thereto. A reading of Benami Act discloses that, no person shall enter into any benami transaction in terms of Section 3; it applies both to the person who lends his name and also to the real purchaser; however, this does not apply to a situation where a person purchases property for the benefit of, inter alia, his spouse or child etc., as envisaged under Section 2(8)(A)(b)(ii); entering into a benami transaction is declared to be an offence by virtue of Section 51 which is non-cognizable in terms of Section 57 and Benami Act disables the real owner from enforcing any right in respect of a property held benami or putting forward a similar defence; however, this disability does not apply where the person in whose name the property is held stands in a fiduciary capacity to the beneficiary. In addition to the above referred salient features, Benami Act also provides for and establishes authorities to exercise jurisdiction and initiate proceedings under the law. Section 15 provides for the authorities and their jurisdiction. The Initiating Officer, Approving Authority, the Administrator and the Adjudicating Authority, which are to exercise powers and perform functions conferred or assigned to them under Benami Act or in accordance with such rules as may be prescribed. Under Section 22 of the Benami Act, an Initiating Officer having a reasonable believe on the basis of information in his possession may issue a notice to person holding benamiproperty, recording reasons for issuance of such notice. In the meanwhile, if the Initiating Officer is of the opinion that the person in possession of such property may alienate the same during the period provided in the notice, he may pass attachment order with respect to such property for sixty days. In terms of Section 22 (4), the Initiating Officer on the basis of material available before him may continue the provisional attachment order made earlier or may revoke the same. Moreover, if provisional attachment order was not passed earlier under subsection (3) of Section 22, he may make it under sub-section (4) thereof on the basis of material available. Where the Initiating Officer has passed an attachment order on the basis of material available, he shall within 60 days of such order draw a statement of case and refer it to the Adjudicating Authority. The Adjudicating Authority after fulfilling codal formalities and in accordance with the procedure prescribed in Section 24 may either set aside the attachment order by holding that property is not benami or hold that such property is benami and confirm such attachment order made by the Initiating Officer. Any person aggrieved of the order of adjudicating Authority may prefer an appeal to the Tribunal under Section 44 of the Benami Act. The decision of the Tribunal is appealable before the High Court in terms of Section 47 of the Benami Act. Similarly, the offences triable under Benami Act may be tried by the Courts of Sessions designated as special court under Section 48 of the Act, 2017. Section 43 of Benami Act stipulates bar as to the jurisdiction of the civil courts in relation to any proceedings before the civil court.

On the other hand, civil courts in terms of Section 9 of CPC are courts of ultimate and plenary jurisdiction and any suit of civil nature is to be tried by the civil courts unless jurisdiction is expressly or impliedly barred. It is well settled that any curtailment and/or ouster of jurisdiction of civil courts under some legislative instrument has to be construed strictly. This Court in Hakam and others v Tassaduq Hussain Shah (PLD 2007 LAH 261) held that the civil courts are courts of ultimate jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred and in such situations the ouster of jurisdiction of civil courts should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course rather there should either be express provision in any law/statute, which debars and takes away the jurisdiction of such court, and the provision must be strictly construed and applied leaving no room for doubt that the jurisdiction of the civil courts has been ousted, or if the ouster is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature.

Civil Revision-707-21
SYED TEHWAR HUSSAIN RIZWI VS
SYED JAVED ALI RIZVI
Mr. Justice Anwaar Hussain
30-06-2021
2021 LHC 4054