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2006 DIGILAW 2319 (RAJ)

Sumaran Singh v. Rajasthan of Muslim Waqf

2006-07-24

AJAY RASTOGI, S.N.JHA

body2006
JUDGMENT 1. 1. This special appeal is directed against an order of the learned Single Judge dismissing the wr't petition of the appellant. The appellant had filed the writ petition challenging the order of the Rajasthan Waqf Tribunal dated 5.4.2006 in case No. 10/2006 rejecting his application under Order 7 Rule 11 of the Code of Civil Procedure. 2. The case of the appellant in a nutshell is that the question which arises for decision in the proceedings before the Tribunal, namely, whether the property in question is a waqf property or not, has already been decided against the Waqf Board in civil suit No. 32/1969, titled Rajasthan Board of Muslim Waqf v. Charan Singh , and therefore in terms of the second proviso to section 7 of the Waqf Act, 1995 the proceeding is not maintainable before the Tribunal. 3. Section 7 of the Waqf Act provides that if after the commencement of the Act any question arises whether a particular property specified as Waqf property in a list of waqfs is waqf property or not or whether a waqf specified in such list is a Shia waqf or a Sunni waqf, the Board or the mutawalli of the waqf or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for decision on the question, and the decision of the Tribunal thereon shall be final. In terms of second proviso where any question has been heard and finally decided in a suit before commencement of the Act the Tribunal shall not reopen such question. 4. Though the appellant labelled the application as one under Order 7 Rule 11, CPC we are of the view that in substance the application was filed for an order that the proceeding is not maintainable in view of the second proviso. We are indeed of the view that the provisions of Order 7 Rule 11 in terms are not applicable to proceedings before the Tribunal. Counsel drew our attention to sub-section (5) of section 83. It lays down that the Tribunal shall be deemed to be a civil court having same powers as exercised by civil court under the Code of Civil Procedure. Being 'deemed' Court means that the Tribunal is a Court of limited jurisdiction. In fact, from sub-section (6) it is manifest that the procedure prescribed under the Code of Civil Procedure is not applicable. Being 'deemed' Court means that the Tribunal is a Court of limited jurisdiction. In fact, from sub-section (6) it is manifest that the procedure prescribed under the Code of Civil Procedure is not applicable. The Tribunal is required to follow the procedure which may be prescribed. The term 'prescribed' has been defined in section 3(1) to mean prescribed by the rules framed by the State Government. 5. Be that as it may, as observed above, the objection of the appellant in substance was on the point of maintainability of proceeding. We are of the view that the question of maintainability may be an issue to be decided by the Tribunal alongwith other issues on the basis of evidence led by the parties at stage of final disposal. We are not in favour of piece-meal decision. In that view of the matter we refrain from deciding the question of maintainability at this stage, and accordingly decline to interfere with the order. 6. The peal is dismissed with observations made hereinabove.Appeal Dismissed. *******