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2022 DIGILAW 769 (TS)

Mumtaz Yarud dowla Wakf v. Mohd. Rafeeuddin

2022-12-01

M.SATYANARAYANA MURTHY

body2022
ORDER : This revision petition is filed under Article 227 of the Constitution of India challenging the order dated 15.09.2017 in I.A.No.139 of 2017 in O.S.No.800 of 2016 (Old O.S.No.24 of 2016) passed by the Telangana State Waqf Tribunal (for short ‘the Tribunal’) dismissing the petition filed under Order VII Rule 11(a) and (d) read with Section 151 C.P.C. 2. The petitioners are defendant 2, 3, 5, 8 to 11, 13, 14 and 15 and they filed an application to reject plaint in O.S.No.24 of 2016 on the sole ground that the respondents/plaintiffs are not interested persons within the definition under Section 3(k) of the Wakf Act, 1995 and that Mumtaz Yaruddowla Wakf is only an educational institution and not Mosque or any other religious trust, to perform prayers etc. by any person. Therefore, the plaintiffs are not interested persons within the definition of Section 3(k) of the Wakf Act and thereby there was no cause of action to file the suit and that it is barred by Section 83(2) of the Wakf Act, 1995. 3. Respondents 1 and 2 filed counter denying material allegations inter alia contending that the petition is filed to circumvent the law and to avoid filing written statement in the main suit and that the petitioners did not state any specific provision of law barring the maintainability of the suit and that the assertions made in the petition that the petitioner did not fall within the ambit of Section 83(2) of the Wakf Act is not correct and respondents 1 and 2/plaintiffs would fall within the definition of Section 3(k) of the Act and the suit is maintainable in accordance with law. It is further contended that according to Order VII Rule 11 C.P.C., plaint can be rejected, when it does not disclose cause of action, where the relief claimed is under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so,, where the suit appears from the statement in the plaint to be barred by any law, where it is not filed in duplicate, where the plaintiff fails to comply sub-rule (2) of Rule 9, where the plaintiff fails to comply sub-rule (3) of Rule 9 and prayed to dismiss the petition. 4. Respondent No.13 filed counter. Respondents 8, 11, 12 and 14 adopted the counter filed by respondent No.13. They also denied the allegations made in the petition while asserting that they are baseless. It is specifically contended that Mahboob Alam Khan has no locus standi to file petition and the petition is liable to be dismissed and that as per 3 resolution dated 04.11.2013, respondent No.8 got appointed as President of Mumtaz Yarud Dowla Wakf, Mirza Khusru Ali Baig was appointed as Secretary and Respondent No.13 as member of the Muntaz Yarud Dowla Wakf along with other members of the Majlis-e-Umna of Muntaz Yarud Dowla Wakf and the same was recorded in Wakf Board by its proceedings dated 27.11.2013 and confirmed by this Court in W.P.No.38308 of 2013 and W.A.No.213 of 2014. Mahboob Alam Khan challenged the said resolution and proceedings before the Tribunal in O.A.No.64 of 2013, which is pending for adjudication. Finally asserted that a crime was registered in Crime No.92 of 2014 and the same is pending for investigation and prayed for dismissal of the petition. 5. Upon hearing argument of both counsel concluded that the plaint does not disclose cause of action and that it is not barred by any law to attract Clauses (a) or (d) of Order VII Rule 11. 6. 5. Upon hearing argument of both counsel concluded that the plaint does not disclose cause of action and that it is not barred by any law to attract Clauses (a) or (d) of Order VII Rule 11. 6. Aggrieved by the impugned order, the present revision petition is filed under Article 227 of the Constitution of India raising various contentions mainly on the ground that Section 83(2) of the Act envisages any mutahwalli, person interested in a Wakf or any other person aggrieved by an order, subject to satisfying the Tribunal that he is a person interested in wakf as defined under Section 3(k) of the Wakf Act and apart from that Muntaz Yarud Dowla Wakf is a wakf, but not allowing to offer prayers since it is purely an educational institution. Thereby, respondents 1 and 2/plaintiffs has no locustandi to file the proceedings before the Tribunal and prayed to set aside the order allowing I.A.No.139 of 2017 in O.S.No.800 of 2016 and reject the plaint exercising power under Order VII Rule 11(a) and (b) C.P.C. 7. During hearing, learned counsel for the petitioners contended that respondents 1 and 2/plaintiffs have no locustandi to file suit since they are not aggrieved or persons interested in wakf under Section 3(k) of the Wakf Act and no cause of action arose and cannot claim any right in the suit. But the Court below did not consider the definition of person interested in wakf under Section 3(k) of the Act in proper perspective and committed an error, when there is a clear bar under Section 83(2) of the Wakf Act, the suit itself is not maintainable and prayed to set aside the impugned order allowing I.A and reject the plaint at the threshold. 8. Learned counsel for the respondents supported the impugned order while contending that respondents 1 and 2/plaintiffs fall within the persons aggrieved under Section 3(k) of the Wakf Act. Therefore, the suit can be maintained as interested and aggrieved persons and demonstrated that the definition is person interested inwakf under Section 3(k) of the Wakf Act is inclusive definition and it embarrass every person, who is interested in wakf and thereby, the suit is maintainable and prayed to dismiss the revision petition, confirming the impugned order. 9. Therefore, the suit can be maintained as interested and aggrieved persons and demonstrated that the definition is person interested inwakf under Section 3(k) of the Wakf Act is inclusive definition and it embarrass every person, who is interested in wakf and thereby, the suit is maintainable and prayed to dismiss the revision petition, confirming the impugned order. 9. In view of rival contentions, the point that arises for consideration is : Whether the respondents are persons interested in the wakf and if not, are they entitled to file suit against the petitioners, despite bar under Section 83(2) of the Wakf Act? POINT: 10. The subject matter of the wakf is purely educational institution and the plaintiffs were erstwhile students studied in the year 1982 and they are not no way connected with the affairs of the educational institution as wakf, as on today. The plaintiffs are claiming that they are persons interested in wakf and filed the suit invoking Section 83(2) of the Wakf Act. 11. The first two sentences of the plaint in para 1 are sufficient to conclude that the plaintiffs were students of Mumtaz group of educational institutions run under the ages of M/s Mumtaz Yarud Dowla Trust created by Janab Mumtaz Yar-Ud-Dowla by a Wakf Deed dated 03.02.1334 Fasli and the plaintiffs were students from 1978 to 1982 of M/s Mumtaz College from Intermediate till completion of B.Sc.(Geology). The plaintiff was the Secretary of students union for the term 1980-81 and cultural Secretary of students union for the term 1981-82 and though the plaintiffs left the educational institution they are still showing interest in the affairs of the educational institutions and recently learnt about the various irregularities and illegalities including misappropriation of funds by the defendants in collusion with each other, acting contrary to the terms and conditions of the Wakf Deed, letter and spirit of the Wakf and continuously seeing the down fall of standards of the education, intentional abandonment of services by eminent staff, fall of admissions in the school, colleges and total mismanagement, both financially and administratively in the Engineering College etc. It is clear from the allegations made in para 1 of the plaint that they were students of Mumtaz Group of Institutions for a period of four years, prosecuted intermediate and completed B.Sc.(zeology) in the college. It is clear from the allegations made in para 1 of the plaint that they were students of Mumtaz Group of Institutions for a period of four years, prosecuted intermediate and completed B.Sc.(zeology) in the college. Therefore, taking advantage that they studied in the college, they filed suit as persons interested in the affairs of the wakf. 12. According to Section 83 (2) of the Wakf Act any Muthawalli, person interested in a Wakf or any other person aggrieved by an order made under this Act or rules made thereunder, may make an application within the time specified in the Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question of other matter relating to the Wakf. Thus, it means muthawalli or a person interested in the wakf or any other person aggrieved is competent to file suit or proceedings. 13. Respondents 1 and 2/plaintiffs are not Muthawalli of the wakf, but they are claiming that they are persons interested. The person interested in wakf is defined under Section 3(k) of the Wakf Act. The person interested in a wakf means any person, who is entitled to receive any pecuniary or other benefit from the wakf and includes, any person who has a right to (offer prayer) or to perform any religious rite in a mosque, idgah, imambara, dargah, (khanqah, peerkhana and karbala), Maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf, the wakif and any descendant of the waqif and the muthawalli. 14. Admittedly, Muntaz Yarud Dowla Wakf is a purely educational institution and the question of worship and perform any religious rite does not arise and it must be only a mosque as mentioned in Section 3(k) of the Wakf Act. 15. Therefore, respondents 1 and 2 are plaintiffs in the suit in question that they are not persons interested in the Wakf, though they were students for some time and that they did not explain their interest in the affairs of the wakf except making allegations in the plaint. Even otherwise, the plaintiffs are not entitled to receive any benefits from the wakf i.e. educational institution. Even otherwise, the plaintiffs are not entitled to receive any benefits from the wakf i.e. educational institution. In such a case, respondents 1 and 2 would not fall within the definition person interested in wakf as per Section 3(k) of the Wakf Act. It is not a disputed fact that the plaintiffs are not Muthawallis of wakf nor descendents of Muthawalli under clause (2) of Section 3(k) of the Wakf Act. When the plaintiffs did not fall under definition of persons interest in wakf, they are not entitled to prosecute the proceedings in view of bar under sub-section 2 of Section 83 of the Wakf Act. Therefore, mere claiming interest in the wakf by making bald allegations in the plaint is not suffice to prosecute the proceedings against the wakf by filing suit invoking Section 83(2) of the Wakf Act. When the plaintiffs are not persons interested as defined under Section 3(k) of the Wakf Act, the suit itself is not maintainable and no cause of action to file suit arose and have no right to claim any relief in the suit, thus, the suit is barred by Section 83(2) of the Wakf Act. 16. The main contention of learned counsel for the petitioners is that when the plaint is drafted to create cause of action that by itself is not sufficient to allow the parties to prosecute the proceedings, since the parties cannot be driven to under go the trauma of facing trial. Learned counsel for the petitioners placed reliance in T.Arivandandam v T.V.Satyapal and another, AIR 1977 SC 2421 , wherein the Apex Court held as follows: “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. The learned Munsif must remember that if on a meaningful not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage.” 17. The principle annunciated in the judgment that the duty is caste upon the Court to examine the allegations made in the entire plaint and clever drafting creating illusions of cause of action are not permitted in law or bar of any law to maintain such suit and a clear right to sue should be shown in the plaint. Otherwise, the Court can reject the plaint at the threshold itself by exercising power under Order VII Rule 11 C.P.C. 18. A similar view was expressed by this Court in Ashrith Realtors and Developers and another v Capt. Arun Prasad, 2018(1) ALT 126 , that when the plaintiff has no cause of action against the defendants to get the suit reliefs for the specific performance of the alleged oral contract for sale more particularly for the fact that the plaint nowhere specifically asserted as to how the defendants got right and title over the plaint schedule property. The very wording of Order VII Rule 11 clause (a) speaks that where it does not disclose a cause of action. Once the law clearly says plaint averments are decisive and from the plaint averments it discloses whether it is a real disclosure or pretended disclosure is premature for the Court to go into though otherwise a stale claim can be rejected instead of allowing to put the ordeal of facing trial by the other side. Once the law clearly says plaint averments are decisive and from the plaint averments it discloses whether it is a real disclosure or pretended disclosure is premature for the Court to go into though otherwise a stale claim can be rejected instead of allowing to put the ordeal of facing trial by the other side. Once the law on its scope is limited, if it is a false claim, the remedy of the defendant for the ordeal is to claim any compensatory costs or otherwise by invoking Sections 34 and 35(a) C.P.C. Order XIV Rule 2 clause (2)(b) C.P.C., requires to be determined as a preliminary issue as to there is a real cause of action in existence and the suit claim is barred by Section 13 and 17 of the Specific Relief Act. Issues if not framed, the trial Court shall hear and frame the issues, if necessary, one of the issues as a preliminary issue in considering the examination in chief of plaintiffs. 19. The view taken by this Court is somewhat different, but such principle is not applicable to the present facts since Tribunal recorded a finding that a suit is maintainable as a person interested in wakf. In another judgment of this Court in Jinendra Jewellers, rep.by its Proprietor Kushal Raj, Vijayawada v B.Venkateswara Rao and another, 2018(1) ALT 732 held that the power of the Court to reject a plaint cannot be doubt and the parameters are well set out in Order VII, Rule 11 C.P.C. 20. In view of law declared by this Court and the Apex Court, it is clear that respondents 1 and 2/plaintiffs are not persons interested in wakf though they were studied for some time in Mumtaz Group of Institutions and thereby the suit cannot be maintained by them in view of the bar contained in sub-section 2 of Section 83 of the Wakf Act. 21. The Court below though considered did not decide the real controversy while confining to the factors mentioned in cause of action para that the plaint discloses cause of action, hence, the plaint cannot be rejected at the threshold and whether the plaintiff is entitled to claim or not is a question to be decided at the end of trial, but this reason is not correct in view of law declared by the Apex Court in T.Arivandandam’s case referred supra. Therefore, the Court below did commit an error in exercise discretion under Order VII Rule 11 C.P.C. negating the relief claimed under Order VII Rule 11 C.P.C. 22. On perusal of entire material on record and Section 3(k) and 83(2) of the Wakf Act, made it clear that unless the person, who filed the suit is a person interested in wakf as defined under Section 3(k) of the Wakf Act, Muthawalli or a descendent of Muthwalli vide clause (2) of Section 83 alone are entitled to question the actions of the wakf. But here, respondents 1 and 2/plaintiffs are not persons interested, thereby, the suit itself is not maintainable and there was no cause of action to claim relief against the defendants. As such the plaint is liable to be rejected by exercising power under Order VII Rule 11 (a) and (d) C.P.C. 23. Accordingly, the civil revision petition is allowed setting aside the order dated 15.09.2017 in I.A.No.139 of 2017 in O.S.No.800 of 2016 (Old O.S.No.24 of 2016) passed by the Telangana State Waqf Tribunal and the plaint is rejected. Miscellaneous petitions, if any, pending in this petition shall stand closed.