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2010 DIGILAW 1258 (ALL)

WAQF MUSAMMAT NABBAN, WAQF NO. 1 v. CIVIL JUDGE, SENIOR DIVISION, UNNAO

2010-04-20

PRADEEP KANT, SHABIHUL HASNAIN

body2010
JUDGMENT By the Court.—Heard the learned counsel for the petitioner Sri Manish Mishra and Sri Alok Kumar Srivastava for respondent No. 2, who has filed a counter affidavit for dismissing the writ petition. 2. The petitioners in this case have approached this Court for issuing a direction to the learned trial Court for deciding the application Ga-27 under Order 7, Rule 11, CPC first before proceeding with the case. 3. In support of the aforesaid plea, it has been urged that in the miscellaneous appeal, the learned District Judge issued such a direction, but the learned trial Court is not following the directives issued by the appellate authority. 4. Sri Alok Kumar Srivastava, appearing for the respondent No. 2, says that, in fact, no direction has been issued by the learned District Judge for deciding the aforesaid application first, but a direction was issued that the question of jurisdiction may be considered first. 5. Sri Manish Mishra, learned counsel for the petitioners submits that since the plea of jurisdiction was raised in the application filed under Order 7, Rule 11, CPC, therefore, he has made the aforesaid submission, though he also says that the question of jurisdiction may be directed to be decided first. He also submits that though the trial Court on 11.2.09 passed an order that the application Ga-27 under Order 7, Rule 11, CPC be decided first, but it is proceeding with the matter without deciding the said application. 6. It has been brought to our notice by the learned counsel for the respondent No. 2 that the issues have also been framed and that in pursuance of the directives issued by the High Court on 11.3.2010 in Writ Petition No. 1491 (MS) of 2008 filed by the private respondents against the order passed by the Additional District Judge, a direction has been issued that the suit be decided by 31.5.2010. 7. The order dated 11.2.2009 passed by the Additional Civil Judge, Senior Division, Unnao, shows that it was passed at a time when the written statement was not filed nor the issues were framed. In the absence of issues being framed, the learned trial Court observed that the application Ga-27 under Order 7, Rule 11, CPC, can be disposed of. 7. The order dated 11.2.2009 passed by the Additional Civil Judge, Senior Division, Unnao, shows that it was passed at a time when the written statement was not filed nor the issues were framed. In the absence of issues being framed, the learned trial Court observed that the application Ga-27 under Order 7, Rule 11, CPC, can be disposed of. However, later on, in pursuance of the directives issued by this Court on 11.3.2010, when the trial Court found that it is to decide the suit by 31.5.2010 and the parties who were also aware of the said order, appear to have actively participated in the trial, issues were framed before the application Ga-27 under Order 7, Rule 11, CPC could be disposed of. 8. The issues were framed on 1.4.2010 with the knowledge and consent of both the parties. 9. Issue No. 10 is the same issue on which the petitioners pray for a decision first before proceeding with the matter. The issue is to the effect whether the present suit is barred by Sections 85 and 86 of the Waqf Act. 10. Normally, an issue of jurisdiction or an issue which may decide the whole controversy or put the matter to rest, either on the ground of jurisdiction or otherwise on the application of some law, such issues are decided as preliminary issues. But in a case, where such issue requires some evidence to be led, then it is permissible that the issue may be decided alongwith the suit, when the evidence is led by both the sides. In other words, the trial Court can proceed with the matter and after taking evidence, such issues can be decided. It is the discretion of the trial Court, which is not lightly to be interfered, unless, of course, a specific case is made out that the aforesaid plea of jurisdiction requires a decision as a preliminary issue first before proceeding with the matter. 11. It is the discretion of the trial Court, which is not lightly to be interfered, unless, of course, a specific case is made out that the aforesaid plea of jurisdiction requires a decision as a preliminary issue first before proceeding with the matter. 11. Issue of jurisdiction requires to be considered first also for the reason that in case the Court finds that it has no jurisdiction to proceed with the matter, the parties would be absolved of litigating throughout, and also approach can be made before appropriate forum where the jurisdiction vests, but if the question of jurisdiction is not decided as a preliminary issue, in the given facts and circumstances of the case, it does not mean that the plea of jurisdiction would be ignored or would not be decided. 12. In matters where mixed questions of law and facts are involved and it is not possible to decide the plea of jurisdiction as a preliminary issue, the Court can decide the same at a later point of time. 13. In the instant case, the Civil Judge is to conclude the case by 31.5.2010, in pursuance of the directives issued by the High Court on 11.3.2010. He has framed the necessary issues and that the issue No. 10 will also be decided by him after the evidence is led. 14. In our opinion, no exception can be taken to the procedure adopted by the learned trial Court nor any prejudice can be said to have been caused to the petitioners in view the directives issued by the High Court. 15. In the trial Court, the petitioners have full opportunity to lead evidence on all the issues including the plea of jurisdiction and, of course, if the Court finds that the suit is barred by the provision of Sections 85 and 86 of the Waqf Act, it will have no option but to dismiss the suit on that ground. 16. Under the circumstances, we do not find any ground to entertain the petition, as any interference made by this Court at this stage, would delay the proceedings in the suit and would also dilute the orders passed by the High Court for deciding the suit within a given time. 17. The trial Court is proceeding with the matter on day-to-day basis, therefore, it is expected that the suit would be decided very soon as directed by the High Court. 17. The trial Court is proceeding with the matter on day-to-day basis, therefore, it is expected that the suit would be decided very soon as directed by the High Court. The parties may cooperate in getting the suit decided. 18. With the above observations, the petition is dismissed. ————