Waqf Masjid Jangale Wali v. U.P. Sunni Central Waqf Board and another whereby the application Ka
Case Details
Court No. - 1 Case :- CIVIL REVISION No. - 39 of 2023
Legal Reasoning
Revisionist :- Smt. Shakeela Khatoon Opposite Party :- U.P Waqf Tribunal At Lko And 2 Others Counsel for Revisionist :- Hari Bans Singh Counsel for Opposite Party :- Punit Kumar Gupta Hon'ble Arvind Kumar Mishra-I,J. Heard learned counsel for the revisionist, learned counsel for the contesting opposite parties and perused the material brought on record. By way of the instant revision, the revisionist has prayed for quashing the order dated 27.12.2022 passed by U.P. Waqf Tribunal, in Suit No.105 of 2018, Waqf Masjid Jangale Wali Vs. U.P. Sunni Central Waqf Board and another whereby the application Ka-12 moved by the defendant - revisionist under Order 7 Rule 11 C.P.C. has been allowed partly. Submission is that bare perusal of the impugned order goes to show that the application Ka-12 under Order 7 Rule 11 C.P.C. was moved by the defendant- revisionist in the proceeding initiated by the Waqf at Kanpur Nagar. It so happened that during course of the proceeding, objections were raised by the revisionist whereby substantial questions were raised and the sale deed in question that has been put to challenge by way of the application filed by Waqf concerned was dismissed at preliminary stage on the ground that the matter was adjudicated previously by the competent civil court and that finding still stands and holds case against the Waqf concerned. That being the case, no locus survives for initiating any proceeding as such and in view of the provisions of Section 83(3) Waqf Act, 1995 (hereinafter referred to as 'the Act'), no proceeding can be initiated against the respondent nos.1 and 2 which includes the present revisionist. Apart from that, it was also pointed out that insofar as the subject matter of the relief sought by the Waqf is concerned, proceedings are barred by Section 11 of Civil Procedure Code, 1908, whereas, the Waqf has also arrayed as opposite party, authority / person against whom proceeding can be launched and initiated only after notice is given to it / him two months prior to initiation of the proceeding and that has not been done. Apart from that, learned counsel has brought to the notice of the Court various subsidiary aspect of this case and read out contents whereof before this Court. Learned counsel for the revisionist has summed up that no cause of action exists for initiation of the proceeding against the opposite parties by the Waqf. That being the case, proceeding cannot be sustained as such. The application Ka-12 moved by the defendant - revisionist was opposed by filing objection 14-C by the Waqf whereby every factual aspect so raised were answered and various grounds were urged in support of the claim of the ongoing proceeding initiated by the Waqf and it was pleaded that the malicious proceedings have been initiated when the property was tried to be registered under Section 37 of the Act, on 13.02.2007 and illegal sale deed was obtained which is void abnitio. Apart from that, it has been claimed that the proceeding launched is basically for cancellation of the sale deed in question that by itself speaks abundant cause of action for initiating the proceeding against the respondent no.2, therefore, evidence may be led and finding may be recorded on merits. Considered the submissions. Insofar as the proceeding of the present case is concerned, the bone contention pertains to the sale deed dated 13.02.2007 which is claimed to be illegal and cannot be allowed to go on as such. It so happened that in this case, regular suit no.3227 of 2016 for cancellation of the sale deed was filed but that was dismissed on 23.07.2016 under Order 7 Rule 11 C.P.C. on the ground that the plaintiff is claiming the property in suit as Waqf property, therefore, the jurisdiction lies with the concerned Waqf. Feeling aggrieved by the aforesaid order, the revisionist preferred petition (Matter Under Article 227 No.2084 of 2017) Smt. Shakela Khatoon Vs. Jangale Wali Masjid Waqf No.277 and another before this Court wherein this Court vide order dated 19.04.2017, inter-alia, observed that the secretary of Waqf had no right to file civil suit, he should have moved application for declaration of the sale deed to be null and void. That way, the matter was pursued. The plaintiff moved an application on 12.06.2017 under Section 51 of the Waqf Act before the Chairman, U.P. Sunni Central Board which decided the application on 23.06.2018 observing that there is no cause of action exist to proceed with the case under Section 52 of the Act. Being aggrieved by the aforesaid order, the respondent - Wakf filed petition (Writ-C No.27918 of 2018) Jangale Wali Masjid Waqf No.227 Vs. U.P. Sunni Central Waqf Board before this Court. While entertaining the aforesaid writ petition, this Court disposed of the matter on 27.08.2018, with the direction to the petitioner-plaintiff to approach the Waqf concerned in regard to the relief sought. Therefore, in pursuance of the direction so passed by this Court in the aforesaid writ petition on 27.08.2018, the proceeding was initiated which was put to challenge by moving application under Order 7 Rule 11 C.P.C. which is impugned in this revision. Insofar as the contention in regard to the impugned order dated 27.12.2022 is concerned, obviously bare perusal of the application under Order 7 Rule 11 C.P.C. substantial ground which requires to be proved in order to bring the case within four corners of the provisions contained under Order 7 Rule 11 C.P.C. Learned counsel for the Waqf in reply to the aforesaid submission contended that insofar as the proceeding before the Waqf is concerned, the same is not equivalent to the original suit but the proceeding drawn under the Act, That being the case, the provisions of Order 7 Rule 11 C.P.C. would not be attracted as such. Apart from that, learned counsel for the Waqf has brought to the notice of this Court deficiency of the court fee and stamp as was pointed out by the court concerned has been removed, therefore, there is no point for proceeding with the case. The relief sought by way of the application of Waqf is itself speaking about cause of action which holds good for proceeding with the case by the authority / Tribunal. The submission so raised is sustained. Accordingly, the instant revision is dismissed. However, it is made clear that nothing has been observed on merits and it is expected that things shall be expedited in accordance with law without causing unnecessary delay. It is desirable that the point mooted by the present revisionist and the respondent no.2 should be considered appropriately and issue should be framed and finding should be recorded as the matter is wide open. Order Date :- 3.4.2023 rkg Digitally signed by :- RAKESH KUMAR GAUTAM High Court of Judicature at Allahabad