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2014 DIGILAW 3762 (ALL)

Farid Pindari v. Rashid Wali Beg

2014-12-16

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal, J. The short question involved in this second appeal is as to whether suit for permanent injunction is barred under Section 85 of the Muslim Waqf Act, 1995. 2. The appellant filed a suit for permanent injunction against the respondents for restraining them from removing the door and encroachments made by them behind the shop of the appellant and repair the broken wall of the shop in possession of the appellant over a portion of Nawab Bagh and Qasbe Wala Bagh adjacent with other four shops of the appellant. The appellant has further prayed that the respondents be restrained from interfering in the possession of the appellant over the grove plot No.135/3 situated at Malihabad, Lucknow. 3. The respondent no.1 moved an application, before filing of the written statement, raising a preliminary objection that the subject matter of the suit relates to a waqf property and as such the suit for permanent injunction could be filed before the Waqf Tribunal only and the jurisdiction of the civil court was exclusively barred. The appellant filed written objection and the learned Civil Judge, before whom the suit is pending, found that the Civil Court had no jurisdiction to hear the suit and with this finding the suit filed by the appellant was dismissed. 4. Feeling aggrieved by the aforesaid order dated 07.02.2012 passed by the Civil Judge, the appellant preferred an appeal before the District Judge Court, Lucknow which was heard by Additional District Judge, Court No.3, Lucknow and the learned first appellate Court also dismissed the appeal and affirmed the order passed by the trial court. 5. I have heard Shri Govind Saran Nigam, learned counsel for the appellant and Shri Shafiq Mirza, learned counsel appearing on behalf of the respondents. 6. Since the matter involves a short legal question, the second appeal is being finally disposed of at the admission stage with the consent of the learned counsel for the parties. 7. Shri Govind Saran Nigam, learned counsel for the appellant has submitted that the copy of the plaint which has been placed on record of the second appeal clearly indicates that there was no dispute with regard to the nature of the property. 7. Shri Govind Saran Nigam, learned counsel for the appellant has submitted that the copy of the plaint which has been placed on record of the second appeal clearly indicates that there was no dispute with regard to the nature of the property. The only relief claimed by the appellant is to the effect that the respondents, who have been arrayed as defendants in the suit, be restrained from removing the door and encroachments made by them behind his shop and from interfering in his peaceful possession over the grove plot No.135/3. He has further submitted that Section 85 of the Waqf Act creates a bar and provides that no suit or other legal proceeding shall lie in any civil court in respect of any disputed question or other matter relating to any Waqf or Waqf property or any other matter which is required by or under this Act to be determined by the Tribunal. The Waqf Tribunal has been constituted under Section 83 of the Waqf Act and the provisions of Section 83(1) clearly provide that the Tribunal is empowered to determine any disputed question or other matter relating to Waqf or Waqf property under the Act. Section 86 of the Waqf Act refers to the appointment of the receiver in any suit. 8. It has been submitted by the learned counsel for the appellant that it is a settled principles of law that the jurisdiction of a Court or Tribunal is decided on the basis of the averments made in the plaint or petition. For deciding the jurisdiction of a Court or Tribunal, the authority is not required to examine the defence put forward by the other side. In the instant case, the appellant has not raised any question with regard to creation of the Waqf or the nature of the property and as such only the Civil Court has jurisdiction to entertain the suit for permanent injunction which has been filed against the private persons and not against the Waqf or its Mutwalli. 9. Shri Shafiq Mirza, learned counsel for the respondents has submitted that after the creation of Waqf Tribunal an amendment has been made in the Waqf Act and the jurisdiction of the Tribunal has been made much wider to cover all types of the dispute including that of eviction of a tenant from the Waqf property. 9. Shri Shafiq Mirza, learned counsel for the respondents has submitted that after the creation of Waqf Tribunal an amendment has been made in the Waqf Act and the jurisdiction of the Tribunal has been made much wider to cover all types of the dispute including that of eviction of a tenant from the Waqf property. The Tribunal constituted under the Waqf Act has also been given power to grant injunction in appropriate cases. A bare perusal of the plaint would show that the appellant has claimed the benefit arising out of the Waqf property and as such the adjudication of dispute between the parties would require adjudication on the point as to whether the subject matter of the suit is a Waqf property and the appellant can claim benefit of that property. A dispute may also arise during the pendency of the suit as to the nature of property and as such both the courts below have rightly held that the suit has been wrongly instituted before the civil court and the suit should have been filed before the Waqf Tribunal only which is empowered to adjudicate the controversy. 10. Learned counsel for the appellant Shri Govind Saran Nigam has relied upon a judgment reported in 2013 (2) JCLR Page 114 (All) in which a Coordinate Bench of this Hon'ble Court has held that if a person claiming to be a lawful occupant of Wakf property files a suit for permanent injunction seeking to restrain the Mutawalli of the waqf from forcibly evicting him or interfering in his possession, suit before civil Court is not barred. The Bench has further observed that since the plaintiff has not been denying the character of the property to be Wakf hence it is not that type of suit concerning Wakf property in respect of which jurisdiction of civil Court is barred. Learned counsel has further relied upon the judgment rendered by the Hon'ble Punjab and Haryana High Court in Civil Revision No.7655 of 2010, which is an unreported judgment. In this case also the Hon'ble High Court has held that if the dispute is regarding nature of the suit land being Wakf property vesting in the Wakf Board, the Wakf Tribunal has jurisdiction to try the suit, but if there is no dispute regarding nature of the Wakf property, then the Tribunal had no jurisdiction to try the suit for other reliefs. Similar views has been expressed by the Hon'ble Punjab and Haryana High Court in a unreported decision rendered in R.S.A. No.1864 of 2011 in which it has been held that since the plaintiff did not challenge the nature of the suit property and admitted that Wakf Board is owner of the suit property, this case does not involve any question relating nature of the property and as such the Tribunal had no jurisdiction and it is only the civil court which has jurisdiction. The Hon'ble High Court has further held that if a case relates to relief of permanent injunction only, the Civil Court has jurisdiction. 11. Shri Shafiq Mirza, has on the other hand relied upon a judgment rendered by the Hon'ble Supreme Court reported in (2010) 8 SCC 726 - Ramesh Gobindram (dead) through Lrs vs. Sugra Humayun Mirza Wakf in which the Hon'ble Supreme Court has held that in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised, the authority has to consider as to whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter, the jurisdiction of the Civil Court would stand excluded. Reliance has also been made on another decision of the Hon'ble Supreme Court reported in 2013 (31) LCD Page 1616 in which the Hon'ble Supreme Court has held that where there is a dispute with regard to the management and peaceful enjoyment of the Waqf property or the assets thereof, the Tribunal only will have to jurisdiction to decide the dispute. The learned counsel for the respondents has also relied upon another decision of the Hon'ble Supreme Court reported in 2011 (29) LCD 60 - Board of Wakf vs. Anis Fatma Begum and another in which it has been held that the party should first approach the Tribunal even if no order has been passed under the Act. 12. The aforesaid decisions referred by the learned counsel for the respondents are not fully applicable to the facts and circumstances of the present case. 12. The aforesaid decisions referred by the learned counsel for the respondents are not fully applicable to the facts and circumstances of the present case. From bare reading of the averments made in the plaint, there does not appear to be any dispute with regard to Wakf property or the nature of the property. There is also no dispute with regard to the management or affairs of any wakf property. The simple prayer made by the appellant is only for a decree of permanent injunction restraining the respondents from interfering in his peaceful possession. In my opinion, such type of suit can be filed and entertained by the civil court and not by the Wakf Tribunal. Both the courts below have wrongly held that the controversy between the parties can be adjudicated only by the Wakf Tribunal. From the perusal of the contents of the plaint, there does not appear to be any dispute with regard to the nature of the property or the management of the Wakf property. Thus, in my opinion, the civil court will have jurisdiction to entertain the suit. 13. Learned counsel for the appellant has pointed out that the learned trial court while holding that it had no jurisdiction to entertain the suit, instead of returning the plaint has dismissed the suit while as a matter of fact the plaint should have been returned for filing before the proper forum. The appellate Court also did not consider this aspect that if the civil court does not have any jurisdiction to entertain the suit, the plaint instead of being rejected should be returned to the plaintiff for presentation to the proper court. Learned counsel for the respondents has fairly conceded that the trial court instead of rejecting the suit ought to have returned the same to the plaintiff-appellant to be presented before the proper forum. However, this argument has no relevance as this Hon'ble Court is of the view that the civil court has jurisdiction to entertain the suit filed by the appellant. 14. However, this argument has no relevance as this Hon'ble Court is of the view that the civil court has jurisdiction to entertain the suit filed by the appellant. 14. In view of above, the second appeal is allowed and the impugned orders dated 07.02.2012 passed by the Civil Judge (S.D.), Malihabad, Lucknow in R.S. No.135/11 and the judgment and decree dated 08.07.2014 passed by the Additional District and Sessions Judge, Court No.3, Lucknow in R.C.A. No.38/12 are hereby set aside with a direction that the learned Civil Judge (S.D.), Malihabad, Lucknow shall proceed with the suit in accordance with the law. However, it would be open for the trial court to pass appropriate order in case at any subsequent stage of the suit, it is found that the controversy between the parties ought to have been decided by the Wakf Tribunal.