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2020 DIGILAW 979 (ALL)

Niyaz Ahmad Khan v. Sabina Sultana

2020-06-19

ANJANI KUMAR MISHRA

body2020
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant revision is directed against an order dated 04.10.2019 passed by the Civil Court rejecting an application filed by the revisionist under Order VII Rule 11 C.P.C. 3. It is admitted that the opposite party filed a suit for injunction restraining the defendant-revisionist not to evict her from the shop in her tenancy, except in accordance with law. 4. The application under Order VII Rule 11 C.P.C. was filed on the ground that the suit was not cognizable by the Civil Court and that it was triable only by the Waqf Tribunal constituted under Section 83 of the Waqf Act, especially in view Section 83(1) as amended in 2013 vide Act 27 of 2013. 5. The application was dismissed by the Civil Court holding that it had jurisdiction as the suit was one for injunction simplicitor and it did not entail any declaration of title. Hence, it was cognizable by the Civil Court. The application under Order VII Rule 11 C.P.C. was accordingly, rejected. 6. Before this Court, the contention of learned counsel for the revisionist is that the court below has relied upon a decision, which had no application, as it considered the unamended provisions of the Waqf Act, 1995. The said Act, especially Section 83, thereof, has been amended w.e.f. 01.11.2013. By the amendment, even proceedings for eviction of a tenant or for determination of rights and applications of the lessor and lessee to waqf property are to be considered and decided by the Waqf Tribunal. He has placed reliance upon the decision of this Court in Waqf Nawab Amjad Ali Khan Versus Waqf Tribunal at Lucknow And Another, 2020 (3) ADJ 19 (LB) in support of his contention. The impugned order is, therefore, patently illegal and is liable to be set-aside and the application under Order VII Rule 11 C.P.C. is liable to be allowed. 7. Learned Counsel appearing for the plaintiff-respondent has submitted that since the suit is one for injunction simplicitor, the same is not cognizable by the Waqf Tribunal and the order under revision is perfectly justified. 8. 7. Learned Counsel appearing for the plaintiff-respondent has submitted that since the suit is one for injunction simplicitor, the same is not cognizable by the Waqf Tribunal and the order under revision is perfectly justified. 8. In support of his contention, he has relied upon 2014 (16) SCC 38 , Faseela M. Versus Munnerul Islam Madrasa Committee And Another wherein, the Apex Court has relied upon its earlier decision in Ramesh Gobindram Versus Sugra Humayun Mirza Wakf, 2010 (8) SCC 726 . 9. I have considered the submissions made by learned counsel for the parties and perused the record as also the judgments cited. 10. The suit wherefrom this revision arises is a suit for permanent injunction filed by one who is prima-facie a tenant of waqf property and seeks an injunction restraining the defendant landlord from evicting him, except in accordance with law. 11. The contention before the Court below is that in view of the amended Section 83(1) of the Waqf Act, 1995, the suit before the civil court was barred. The words, which have been included in sub-section (1) by the amendment aforesaid, read as follows; "eviction of a tenant or determination of rights and obligation of the lessor and lessee of such property." These words have been inserted by the amendment in 2013. 12. The Apex Court in Ramesh Gobindram while dealing with the unamended Section 83 in paragraph 12 had held as follows:- "The well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statue which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a Civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that Civil Court's jurisdiction is ousted." 13. Further in paragraph 20 of the said judgment, it was held as under:- "What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. Further in paragraph 20 of the said judgment, it was held as under:- "What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property." 14. It was further held in paragraph 24 that the "Civil Court's jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal." 15. Further in paragraph 29, it was held as follows:- "The exclusion of Civil Court's jurisdiction is dealt with by Section 6(5) and Section 85 of the Act. To interpret Section 83 as a provision that excludes the jurisdiction of the Civil Courts is not, therefore, legally correct, for that provision deals with constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto." 16. Ultimately, it has been held as follows in paragraph 32, the same has been reiterated in paragraph 33 of the judgment reads as follows:- "Section 85in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal." 17. Therefore, from the conjoint reading of the portions of the judgment of the Apex Court in Ramesh Gobindram, it appears that Section 83 only deals with the power of the State Government to constitute Tribunals. Therefore, the words included by the Amending Act of 2013; in sub-section (1) of Section 83, namely "eviction of a tenant or determination of rights and obligation of the lessor and lessee of such property." does not in my opinion bring the matter within the purview of Section 85 of the Act. To clarify, any insertion made in Section 83(1) will not, by itself, enhance the jurisdiction of the Tribunal, under the Wakf Act, 1996 as this provision deals with "Constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto", as held in Ramesh Gobindram (supra). 18. It is no ones' case that the judgment in the case of Ramesh Gobindram with regard to what has been stated above, has been overruled either specifically or by implication. 19. 18. It is no ones' case that the judgment in the case of Ramesh Gobindram with regard to what has been stated above, has been overruled either specifically or by implication. 19. The judgment of the learned Single Judge in Waqf Nawab Amjad Ali Khan Versus Waqf Tribunal at Lucknow And Another as referred to the judgment of the Apex Court in Punjab Wakf Board Vs. Sham Singh Harike, 2019 (4) SCC 698 . Not only was the dispute before the Apex Court and before the Single Judge, factually different from the one in the case at hand. Reliance by learned Single Judge upon paragraphs 45, 46 and 47 of the judgment in Punjab Wakf Board (supra) does not appear to be justified because the observations in the said judgment can be said to be obiter dicta. Admittedly, the Apex Court was dealing with the unamended Wakf Act, and it was not a judgment which was dealing with the amended Section 83(1). 20. Besides, the relief claimed in the judgments afore-noted was for eviction of a tenant and, therefore, the judgment of the Lucknow Bench has rightly been held by the Court below to be not applicable in the facts and circumstances of the case. 21. Under the circumstances, and since the suit wherefrom the instant revision arises, is a suit by a occupant seeking an injunction that he should not be evicted from the property in his occupation, except in accordance with law, and the same in my considered opinion a matter required by or under the Wakf Act, 1996 to be determined by a Tribunal, is not provided anywhere under the Act, which does not suffer from any jurisdictional error in such an issue upon the Waqf Tribunal. 22. Therefore, the impugned order in my considered opinion, suffers from no jurisdictional error or illegality that would justify interference. 23. The revision is accordingly dismissed.