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2013 DIGILAW 308 (MP)

Haji Mohammed Shah v. Mahant Mehmood Shah

2013-03-07

RAJENDRA MENON, S.A.BOBDE

body2013
ORDER Rajendra menon, J. 1. Challenge in this writ petition under Article 227 of the Constitution is made to an interlocutory order-dated 12.1.2007, passed by the M.P. State Wakf Tribunal, Bhopal in Case No. 9/2003, by which an application filed by the petitioner under Order I Rule 10 of the Code of Civil procedure, has been rejected. 2. Dispute in question pertains to certain property, which is situated in District Satna. Plaintiff/respondent No. 1 Mahant Mehmood Shah has initiated the proceedings against the M.P. Wakf Board and the State of Madhya Pradesh with regard to his right to the property and the act of Wakf Board in only treating him as a ‘Mutwalli’. Be it as it may be, in the pending dispute petitioner claimed his right to the property mainly on the ground that the property in question was in the name of his father Late Madara Shah and after his death, petitioner’s father Ahmed Shah is in possession and ownership of the property. Inter alia contending that in the revenue records and various documents, he is shown to be in possession, the application under Order I Rule 10 of the CPC, was filed to say that petitioner is also a necessary party and any order passed in the suit will have adverse affect on his right. 3. This application has been rejected by the learned Wakf Tribunal mainly on the ground that it has been filed at the stage of final hearing after evidence of the parties have been recorded, it is also held that as the petitioner can always file a fresh suit claiming his right to the property, therefore, he need not be impleaded as a party. 4. Learned counsel for the petitioner took us through the documents available on record to say that petitioner has a right to the property and if any order is passed in the proceedings wihout hearing him, it would adversely affect his right and, therefore, he was a necessary party. 5. Respondents have refuted the aforesaid and submit that petitioner has no right to the property, he is only shown in temporary occupation of the property in Column No. 12 of the revenue records, the property belongs to the respondent No. 1/plaintiff and, therefore, petitioner was not a necessary party. 6. 5. Respondents have refuted the aforesaid and submit that petitioner has no right to the property, he is only shown in temporary occupation of the property in Column No. 12 of the revenue records, the property belongs to the respondent No. 1/plaintiff and, therefore, petitioner was not a necessary party. 6. Having heard learned counsel for the parties and on a perusal of the records, it is clear that there is dispute with regard to the property in question and both the petitioner and respondent No.1/plaintiff are claiming their right to the property. In these interlocutory proceedings under Article 227 of the Constitution, it is not necessary for us to dwell upon these disputed questions of fact and determine the rights of the parties, as it would be for the competent Court or Tribunal dealing with the dispute on merits to go into such questions. 7. As far as the present petitioner is concerned, on going through the impugned order, we find that the Tribunal has give two reasons for rejecting the application. The first is that evidence of the plaintiff has been recorded and, therefore, at this stage the application cannot be allowed. Thereafter, it is held that petitioner can institure a fresh suit where the claim of the petitioner can be adjudicated independently and, therefore, he need not be impleaded as a party. 8. It is a well settled principle of law that all disputes inter se between the parties should be resolved and settled in the same proceeding. Multiplicity of proceedings should be avoided. The petitioner has a right to agitate the matter by filing a separate suit and claim his right to the property, that being so, if a dispute with regard to the same property is already pending, there is no reason for not permitting the petitioner to participate in the proceedings so that all the dispute inter se between the parties can be adjudicated in a same proceeding. 9. Even though learned counsel for the respondents tried to emphasize that the petitioner has no right to the property, we do not deem it appropriate to enter into the said area of inquiry in these proceedings under Article 227 of the Constitution. 9. Even though learned counsel for the respondents tried to emphasize that the petitioner has no right to the property, we do not deem it appropriate to enter into the said area of inquiry in these proceedings under Article 227 of the Constitution. Suffice it to say that if the petitioner has a right to institute a fresh proceeding, interest of justice requires that all dispute with regard to the same property should be resolved in the dispute which is already pending and, therefore, it is a fit case where the application under Order I Rule 10 CPC should be allowed and parties given liberty to raise their rival contentions before the Tribunal where the matter is pending and it would be for the Tribunal to decide all such question on merits. 10. As far as the impugned order is concerned, once we find that the reasons given by the learned Tribunal for rejecting the application under Order I Rule 10 is not tenable, is not in accordance to the requirements of law, we deem it appropriate to quash the same. 11. Accordingly, this petition is allowed. Impugned order-dated 12.1.2007 passed by the M.P. State Wakf Tribunal is quashed. The application filed by the petitioner under Order I Rule 10 of the Code of Civil Procedure, is allowed. Petitioner be permitted to participate in the proceedings and the learned Tribunal where the matter is pending is directed to decide the dispute between the parties in accordance with law, after hearing all concerned. 12. With the aforesaid, the writ petition stands allowed and disposed of.