Karnataka High Court
Teh Chief Executive Officer vs Chand Pasha @ Rafiulla Shariff on 12 October, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL NO. 1658/2015
BETWEEN:
THE CHIEF EXECUTIVE OFFICER
KARNATAKA BOARD OF WAKF
DARUL AWAKF, CUNNINGHAM ROAD
BANGALORE 560 032 ... APPELLANT
(BY SMT S R ANURADHA, ADVOCATE)
AND:
1 CHAND PASHA @ RAFIULLA SHARIFF
S/O LATE SYED ABDUL JABBAR SAB
AGED ABOUT 59 YEARS
Y.N.HOSAKOTE, PAVGADA TALUK
TUMKUR DISTRICT 572 101
2 MUSLIM AHLE-JAMATH
Y.N.HOSAKOTE, PAVGADA TALUK
TUMKUR DISTRICT 572 101
REP. BY ITS MUTAVALLI
ABDUL RAZAK SAB
S/O FAKRUDDIN SAB
3 DISTRICT WAKF BOARD
BY ITS SECRETARY
2
SIRANI ROAD
TUMKUR 572 101 ... RESPONDENTS
(BY SRI. H.V.HARISH, ADV FOR R-1;
SRI ANIRUDH ANAND, ADV FOR R-2
R-3 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 12.08.2015 PASSED IN R.A.NO.5003/2015 ON THE
FILE OF THE IV ADDITIONAL DISTRICT & SESSIONS
JUDGE, MADHUGIRI, ALLOWING THE APPEAL AND
SETTING ASIDE THE ORDER DATED 13.06.2014 PASSED
IN O.S.NO.24/1990 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, MADHUGIRI SITTING AT
PAVAGADA.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
I have heard the arguments of Smt S.R.Anuradha, learned Advocate appearing for appellant and Sri H.V.Harish, learned Advocate appearing for respondent- 1 and records secured from trial Court having been perused, this Court is of the considered view that 3 following substantial question of law would arise for my consideration:
"Whether first appellate Court was correct and justified in rejecting I.A.No.25 filed by defendant under Order 7 Rule 11 read with Section 151 CPC by setting aside the order dated 13.06.2014 passed in O.S.No.24/1990?"
3. Parties are referred to as per their rank in trial Court.
4. First respondent - plaintiff has filed the suit O.S.No.24/1990 initially against first defendant and subsequently, second defendant - District Wakf Board, Tumkur was also impleaded and suit came to be decreed by judgment and decree dated 17.06.2005. Said suit was filed to declare plaintiff is the lawful owner in possession and enjoyment of suit property bearing Sy.No.234 measuring 17 acres 25 guntas less 2 acres on northern side; for perpetual injunction to 4 restrain the defendants or his agents from interfering with possession and enjoyment of the suit property by the plaintiff. Karnataka Board of Wakfs, Bangalore questioned the said judgment and decree by filing an appeal R.F.A.Nos.1459/2005 c/w 1404/2005 and by judgment dated 11.09.2012, this court set aside the judgment and decree passed by trial Court and remanded the matter back to trial Court for reconsideration afresh by granting an opportunity to third defendant - Karnataka Board of Wakfs to file written statement and opportunity was extended to both parties to lead further evidence. In the said appeal, Karnataka Board of Wakf had filed an application seeking leave of the Court to challenge the judgment and decree which had been allowed. It is in this background, third defendant came to be impleaded in the suit in question and written statement also came to be filed by Board.
5
5. Third defendant filed I.A.No.25 under Order 7 Rule 11 read with Section151 CPC to reject the plaint. At this juncture, it would be appropriate to note that in the application filed, third defendant did not specify or indicate as to which clause or clauses of Rule 11 of Order 7 CPC was/were being invoked for rejection of the plaint. However, in the affidavit filed in support of the application, it was contended that plaint is liable to be rejected on the ground that court fee paid is insufficient; plaintiff being a Sunni Muslim ought to have challenged the notification in respect of Wakf property published on 15.02.1968 within one year i.e., on or before 15.02.1969 and as such, suit having not been filed within one year was barred by limitation; no cause of action for the suit being there; and description of the suit property is not proper manner and plaint is also liable to be rejected for non-compliance of mandatory provision viz., non-issuance of notice and as such, 6 plaint is liable to be rejected. Said application came to be resisted to by the plaintiff by filing detailed statement of objections. Learned trial Judge by order dated 13.06.2014 allowed the said application by arriving at a conclusion that plaintiff had not mentioned boundaries of the suit property as required under Order 7 Rule 3 CPC, as such, violation of the said provision would entail in rejection of the plaint. In the words of learned trial Judge, reason for allowing the application filed under Order 7 Rule 11 CPC can be discerned from paragraph 21 of said order and it reads as under:
"21. Even in this case also, the plaintiff though mentioned the survey number, extent of land and assessment including place of the land, but not furnished the boundaries for the reasons best known to him. It is his case that two acres of land towards northern side was spared for the construction of burial ground, but after deducting such two acres what would be the boundaries of the properties has not been mentioned. Without the 7 boundaries of the properties the land cannot be recognized and moreover, an effective decree cannot also be passed. It is seen that, the defendants have claimed to be in possession of the suit schedule property stating that there is Eidga and Burial ground. The defendant No.3 in para.No.18 of written statement has specifically pleaded that the plaintiff has not stated the location of the suit property and that he has not mentioned the proper boundaries. But though, the plaintiff prosecuted the suit for nearly 24 years, but still unable to give the boundaries of the suit property. This it-self creates a serious doubt whether there is cause of action to the suit. Since, the plaintiff has violated the mandatory provisions of Order 7 Rule 3 of CPC, his plaint has to be rejected as per the decision of Hon'ble High Court of Karnataka in Ambanna's case (Supra). Therefore on the basis of materials on hand, I have came to conclusion that plaint filed by the plaintiff is liable to be rejected and hence, I answer point No.1 in the affirmative."8
6. Being aggrieved by the above said order rejecting the plaint, plaintiff filed an appeal R.A.No.5003/2015. Learned appellate Judge after securing the records and examining the rival contentions raised at the bar has allowed the appeal and held that none of the parties to the lis are in doubt regarding identification of the suit property; plaint cannot be rejected under Order 7 Rule 3 CPC; no doubt can be raised regarding cause of action merely because plaintiff has been prosecuting the suit for 24 years and evidence is required to be recorded in that regard; without recording evidence, trial Court could not have decided as to whether there was any cause of action for the suit or not and whether plaint averments primafacie disclose cause of action by relying upon the judgment of a co-ordinate Bench of this Court in the matter of BANGALORE DEVELOPMENT AUTHORITY vs VYASA BANK LIMITED reported in 2005(2) K.L.J. 511 it came 9 to be held that cause of action has to be ascertained on a conjoint reading of plaint averments and not on the basis of averments made in the application for rejection of plaint and cause of action has to be discerned from plaint averments only; though third defendant has claimed the said property to be a wakf property, plaint was presented on 08.06.1990 when Wakf Act, 1995 was not in force and Wakf Act of 1995 has come into effect from 01.01.1996. It was also held that section 7(5) of the Wakf Act, 1995 saves suit in question, it does not bar the jurisdiction of the civil court. Hence, first appellate court concluded that trial Court ought to have recorded evidence and then proceeded with and it allowed the appeal and rejected I.A.No.25 filed by third defendant under Order 7 Rule 11 CPC.
7. It is the contention of Smt.S R Anuradha, learned Advocate appearing for appellant that lower 10 appellate court erred in not taking into consideration that plaintiff had failed to produce any iota of evidence to establish that he is the owner of the suit schedule property and mere entries in the revenue records cannot bestow any title to the suit property. She would also submit that suit in question being one for declaration and injunction, plaintiff ought to have challenged the notification dated 15.02.1968 declaring the suit schedule property as wakf property and in order to seek relief of declaration of ownership, plaintiff ought to have pleaded these material facts which was necessary to establish ownership. She would submit that lower appellate court on an erroneous interpretation of Sections 6 & 7 of the Wakf Act, 1995 held that Section 6 does not apply ignoring the fact that this court while setting aside the judgment and decree earlier passed in RFA No.1404/2005 it was held that plaintiff ought to have questioned the notification, which clearly discloses 11 that suit was not maintainable for want of questioning the notification and as such, supporting the order passed by trial Court allowing the application filed by 3rd defendant under Order 7 Rule 11 CPC, she seeks for answering the substantial question of law in favour of appellant and contending that Order 7 Rule 11 (a) & (d) CPC is squarely attracted to facts on hand. Hence, she has sought for allowing the appeal.
In support of her submissions, she has relied upon the following judgments:
(1) (1977)4 SCC 46 T ARIVANDANDAM vs T.V.SATYAPAL AND ANOTHER (2) ILR 1992 KAR 586 KARNATAKA BOARD OF WAKFS vs HAZRATH ATTULLA SHAH DHARGAH (3) 2014 SCC ONLINE DEL 2326 T MURALIDHAR vs PVR MURTHY 12
8. Sri H.V.Harish, learned Advocate appearing for respondent-1 has supported the judgment and decree under challenge and contends that application filed for rejection of the plaint is vague, bereft of specific prayers. He wound contend that Order 7 Rule 3 CPC is not at all attracted to the facts on hand and description of the property is sufficient enough to identify the suit property and even otherwise, it is a curable defect and on that ground, plaint cannot be rejected. He would contend that prior to the institution of the suit, notice came to be issued by plaintiff to third defendant as per notice dated 12.10.1992 - Ex.P-15 and same has not been replied and as such, question of Section 56 of the Wakf Act, 1995 being attracted and for want of issuance of notice plaint being rejected on the said ground would not arise. He would also submit that plaintiff having not admitted that suit schedule property is a wakf property, question of challenging the notification 13 declaring the suit property as Wakf property would not arise and as such, plaint cannot be rejected on said grounds. Hence, he prays for allowing the appeal by answering substantial question of law in favour of plaintiff-respondent In support of his submission, he has relied upon the following judgments:
(1) 2015 SCC ONLINE SC 751 VAISH AGGARWAL PANCHAYAT vs INDER KUMAR & OTHERS (2) (2007) 10 SCC 727 SARDAR KHAN & OTHERS vs SYED NAJMUL HASAN & OTHERS (3) (1979)2 SCC 727 468 BOARD OF MUSLIM WAKFS vs RADHA KISAN & OTHERS (4) (2006)5 SCC 662 BALASARIA CONSTRUCTION PVT. LTD VS. HANUMAN SEVA TRUST & OTHERS (5) CIVIL REVISION PETITION NO.2032/2012
HAJI SALEEM SAB vs THE CHIEF EXECUTIVE OFFICER, KARNATAKA BOARD OF WAKF 14 (6) STATE OF PUNJAB vs GEETA IRON AND BRASS WORKS LTD JUDGMENT DATED 14.10.1977.
RE: DISCUSSION ON SUBSTANTIAL QUESTION OF LAW:
9. Hon'ble Apex Court in its authoritative pronouncement in the matter of T. ARIVANDANDAM VS T. V. SATYAPAL & ANOTHER reported in (1977)4 SCC 567 = AIR 1977 SC 2421 has held that if on a meaningful reading of the plaint, it is manifestly vexatious and meritless, in the sense of not disclosing right of plaintiff to sue, trial Court should exercise its power under Order 7 Rule 11 CPC taking care to see that grounds mentioned therein is fulfilled. It has been held that an activist Judge is the answer to irresponsible law suits. It is trite law that plaint cannot be rejected on the basis of averments made by the 15 defendant in the written statement. Mere fact that in the opinion of learned trial Judge, plaintiff may not succeed in the suit also cannot be a ground on which plaint can be rejected under Order 7 Rule 11 CPC.
10. Hon'ble Apex Court in catena of judgments has held that plaint can be rejected by looking into plaint averments and any amount of defence raised either in the written statement or in any other pleadings of the parties would not be a ground on which plaint under Order 7 Rule 11 CPC can be rejected. Clauses (a) to (f) of Order 7 Rule 11 CPC are the circumstances under which a plaint can be rejected. Thus, in order to consider an application for rejection of the plaint, court has to scrutinize the averments made in the plaint and at the stage of considering prayer for rejection of the plaint, case or defence of the defendant as raised in the written statement would be wholly 16 irrelevant. However, as held by Hon'ble Apex Court in the case of THE CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY, REPRESENTED BY ITS CHAIRMAN vs M/S.PONNIAMMAN EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/MANAGING TRUSTEE reported in AIR 2012 SC 3912, has held if clever drafting has created the illusion of a cause of action, it should be nipped at the bud by examining the parties searchingly under Order 10 C.P.C.
11. In the case of P.V. GURU RAJ REDDY REP. BY GPA LAXMI NARAYAN REDDY & ANOTHER vs P. NEERADHA REDDY & ORS. ETC. reported in (2015)8 SCC 331, it has been held as under:
5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to 17 the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.
9. Both the suits were filed in July 2002 which is well within three years of the date of knowledge, as claimed by the plaintiffs, of the fact that the property had not been transferred in the name of plaintiff No.2 by the defendants Nos. 1 and 2. The aforesaid averments made in the plaint will have to be accepted as correct for the purposes of consideration of the application under Order VII rule 11 filed by the defendants Nos. 1 and 2. If 18 that be so, the averments in the plaint would not disclose that either of the suits is barred by limitation so as to justify rejection of the plaint under Order VII rule 11 of the CPC.
13. The appeal is disposed of in the above terms.
12. It would also be necessary to observe that while prayer is made for rejection of the plaint, defendant has to satisfy the clause which has been invoked and it cannot be mixed up inasmuch as, under clause (a) if the court were to arrive at a conclusion that there is no cause of action in the suit, rejection of the plaint is simplicitor. Whereas, taking recourse to rejection of the plaint under clause (c) of Rule 11 would be resorted where plaintiff fails to pay requisite court fee as determined by the court within the time fixed and non compliance thereof would entail rejection of the plaint. In other words, it is a curable defect. Any irregularity is curable, whereas, an illegality is not. 19 Likewise, plaint can also be rejected under clause (e) wherein plaintiff does not file the plaint in duplicate as required under Order 7 Rule 9 CPC inasmuch as, within 7 days from the date of order being passed by the court directing the plaintiff to present or file as many copies of the plaint as there are defendants and if said order is not being complied, it would result in plaint being rejected. In fact, proviso to Rule 11 enables the court to enlarge the time for the reasons to be recorded and on being satisfied that plaintiff was prevented by justifiable cause of an exceptional nature from either correcting the valuation or supplying requisite stamps within the time fixed by the court and arriving at a conclusion that refusal to extend time would cause grave injustice to the plaintiff. This would clearly disclose that clauses (b),
(c), (e) & (f) provides for curing the defect within the time prescribed or fixed by the court or within such enlarged 20 time. In other words, procedural irregularity is allowed or permitted to be cured.
13. Under clause (a) of Rule 11 of Order 7 CPC, where the plaint does not disclose cause of action or illusory cause of action if any made out by the plaintiff by clever drafting of the plaint, it would lead to an irresistible conclusion that there is no cause of action for the suit at all, then, under clause (a) of Rule 11 of Order 7 CPC and in such circumstances court would endeavor be to reject the plaint. Under clause (d) where statement made in the plaint appears to be barred by any law, court would be empowered to reject the plaint under the said clause. If on facts alleged suit manifestly merits to be thrown out at the earliest, like in the case of where to enforce the contract of private employment, civil suit is filed and the remedy being damages for illegal termination, no relief can be granted and as such, 21 under clause (d) of Rule 11 of Order 7 CPC, plaint can be rejected even at the threshold or at any stage of the proceedings. However, while considering the prayer for rejection of a plaint under Rule 11(d), it is only the averments made in the plaint which is required to be seen and not the pleas advanced in the written statement as already observed hereinabove. Even if entire plaint averments are accepted relief or reliefs prayed for in the plaint cannot be granted by the court, then in such an event it will not be in the interest of public to keep such litigation alive and kicking as it would be waste of precious judicial time and it would also lead to unnecessary harassment to the defendant or in other words, it would be allowing the plaintiff to abuse the process of law. In cases where defendant seeks for rejection of the plaint by invoking clause (d) of Rule 11, particular law which bars such suit has to be stated by the applicant. In fact, such averments should 22 be found in the application itself and where the applicant fails to specify the law, which bars such suit, plaint cannot be rejected. While examining an application for rejection of the plaint under Order 7 Rule 11(d) CPC, scrutiny of averments made in the plaint is true or untrue would not be an issue which can be subject matter of scrutiny. For the proposition that plaint cannot be rejected on the basis of allegation made by the defendant in its written statement, judgment of Hon'ble Apex Court in the matter of MAYOR (HK) LIMITED AND ANOTHER vs OWNERS AND PARTY VESSEL reported in AIR 2006 SC 1828 can be looked up. Hon'ble Apex Court in the case of KAMALA & OTHERS vs K.T. ESHWARA SA & OTHERS reported in AIR 2008 SC 3174 has held that different clauses in Rule 11 of Order 7 CPC should not be mixed up while seeking rejection of the plaint. It has been held that for invoking Rule 11(d), no evidence can 23 be looked into and at that stage, issues of merit of matter would not be in the realm of the court.
14. In the matter of LIVERPOOL AND LONDON SP & I ASSOCIATION vs M.V. SEA SUCCESS I & ANR reported in (2004)9 SCC 512 Hon'ble Apex Court while examining the plea for rejection of the plaint under Order 7 Rule 11(a) has held that whether plaint discloses cause of action would be a question of fact and same has to be determined by reading the averments made in the plaint in its entirety and in the event of averments made in the plaint or documents relied upon disclose cause of action, plaint should not be rejected merely on the ground that averments are not sufficient to prove the facts stated therein. It is in this background, facts on requires to be examined.
15. A bare reading of the plaint in the instant case would disclose that plaintiff is claiming to be the 24 owner in lawful possession and enjoyment of the suit property asserting that khata of suit property stands in his name. It is no doubt true that when suit was filed initially on 08.06.1990 in the court of Civil Judge, Madhugiri, first defendant alone had been arrayed as a party and subsequently, by order dated 06.07.1996 second defendant - District Wakf Board came to be impleaded as a party to the proceedings. Prior to the institution of the suit, plaintiff has issued a legal notice on 12.10.1992 which has been marked as Ex.P-15 which is issued under Section 80 CPC read with section 56 of the Karnataka Wakf Act, 1954 to the then Special Administrative Officer, Secretary, Board of Karnataka of Wakfs, No.6, Cunningham Road, Bengaluru. Said notice is duly received by third defendant is evident from the postal acknowledgment produced and marked as Ex.P-16. In the plaint, it is stated by the plaintiff that his father was getting said land cultivated through 25 hired labourers and his father's name continues as khatedar in the revenue records and jurisdictional Tahsildar has changed khata and pahani in the year 1988-89 in respect of said land measuring 6 acres only and for remaining area it has been ordered to be written in the name of defendant. It is further contended that appeal filed by the plaintiff challenging the order of Tahasildar before Assistant Commissioner has been allowed and matter has been remanded to the Tahsildar for fresh disposal which is pending. Hence, plaintiff contends that he is a stranger to wakf and the alleged notification does not bind him. Cause of action pleaded for the suit in the plaint and in the words of plaintiff reads:
"9. cause of action for the suit arose about a week back when the defendant attempted to interfere with the cultivation of the suit land by the plaintiff at Y.N.Hosakote, Pavagada 26 Taluk within the jurisdiction of this Hon'ble Court."
Description of the suit property as described in the plaint schedule reads as under:
" Schedule Sy.No.234, dry, measuring 17 acres 25 guntas Edgar, less two acres on northern side occupied by grave yard at Rs.4.99 situated at Y.N.Hosakote, Pavagada Taluk, Tumkur District."
16. Though in the application filed by third defendant under Order 7 Rule 11 CPC specifically it is not stated as to how court fee paid is insufficient or in other words, averments made in the application is bald, vague and bereft of material particulars, at paragraph 10 of the affidavit supporting the application, a feeble plea on the issue of court fee has been raised without elaborating as to how court fee paid by plaintiff is insufficient or what was the court fee which was 27 required to be paid. Plaintiff is the master of his suit. Averments made in the plaint are prima-facie to be accepted as gospel truth. As such, on the basis of such vague plea it cannot be held that court fee paid on the plaint is insufficient and plaint cannot be rejected on such vague plea.
17. In the instant case, suit in question came to be filed on 08.06.1990. It has been the contention of the defendants that plaintiff was barred from filing the suit in question in view of embargo found in Section 6(1), which stipulates period of limitation as one (1) year from the date of publication of a Notification in a Gazette and said bar found in Section 6 would be attracted in case of stranger being a Muslim and challenge to such notification should be within one year from the date of publication of such notification and as such, suit in question was barred under Section 6 of the Wakf Act, 28 1995. Plea raised by third defendant in the affidavit filed in support of the application for rejection of plaint has received the attention of the lower appellate court. It has been held that any dispute regarding Wakf has to be entertained by the Tribunal under Section 6 of the Wakf Act, 1995 i.e, in respect of dispute between Wakf Board Muslims and the person interested in the Wakf and dispute in question had arisen prior to Wakf Act, 1995 coming into force. It is further held by the lower appellate court that by virtue of Section 7(5) of the Wakf Act, 1995 suit or proceeding instituted in a civil court under sub-section (1) of Section 6 before such commencement of the Act, which may also be the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal as the case may be, would be competent and embargo placed 29 in Section 6 would not apply. Hence, noticing that suit in question came to be filed prior to Wakf Act, 1995 and Section 7(5) being attracted it would save the suit in question, has held it does not bar jurisdiction of the civil Court to entertain and adjudicate said suit. Hence, it has been rightly held that plaint cannot be rejected under Order 7 Rule 11(d) CPC as barred by limitation. That apart, issue of limitation is a question of fact and law and will have to be resolved after recording of evidence. In fact additional issues have been framed in this regard on 05.10.2013, which will have to be adjudicated based on the evidence both parties may tender. It is for this precise reason, lower appellate court has held that evidence requires to be recorded.
18. In the instant case, plaintiff is claiming declaration that he is the absolute owner in lawful possession and enjoyment of the suit schedule property 30 and ultimately, after recording evidence, if trial Court comes to the conclusion that plaintiff has failed to establish his case, it would result in dismissal of the suit. It is one thing to say that there is no cause of action for the suit and it is another thing to say that cause of action pleaded in the suit would not entitle the plaintiff to the relief that he has sought for. These two aspects are to be kept in mind while considering an application filed seeking rejection of the plaint for want of cause of action. In the instant case, learned appellate Judge has taken into consideration all these aspects and has rightly arrived at a conclusion that from meaningful reading of the averments of the plaint, it cannot be gainsaid by the third defendant that averments made in the plaint do not constitute cause of action or cause of action pleaded in the plaint would not be sufficient to proceed with the suit on merits. It has been further held that plaint cannot be rejected on the 31 ground that suit is barred by limitation without recording of evidence as it would be a mixed question of fact and law.
19. Yet another aspect which cannot go unnoticed is the fact that at an earlier point of time, in the very same proceedings before trial Court by order dated 19.12.2001 Civil Court at Madhugiri had transferred the suit to the Wakf Tribunal by allowing the application filed by the second defendant is District Wakf Board and as such, tribunal registered the said case as TOS 3/2002 and by order dated 03.04.2003 held that Wakf Tribunal had no jurisdiction to try the suit and it is not maintainable before it. Similar plea with regard to Section 6(1) was also pressed into service before the Tribunal by the District Wakf Board - second defendant which was also examined by the Wakf Tribunal and under said order, it had rejected said 32 contention on the ground that Section 7(5) of the Wakf Act, 1995 specifically bars jurisdiction of the Tribunal in cases like the one on hand and such suits are saved and has to be tried by a Civil Court. As such, it re- transmitted the records to the court of Civil Judge (Sr.Divn), Madhugiri for being disposed of on merits by order dated 03.04.2003. Pursuant to said order of remand by Wakf Tribunal, learned trial Judge had adjudicated the suit by recording evidence, heard the arguments and had decreed the suit by judgment and decree dated 17.06.2005 which ultimately, landed before this court in RFA No.1459/2005 c/w RFA 1404/2005 and these two appeals came to be allowed and matter was remanded back to the trial Court for adjudication afresh as already noticed herein above. Thus, order of the Wakf Tribunal dated 03.04.2003 has attained finality and none had challenged the same and this fact is not in dispute. In fact, it is apt to observe at 33 this juncture that in the appeal filed by third respondent in RFA No.1459/2005 before this Court there was not even an whisper with regard to plaint being liable to be rejected either under Order 7 Rule 11
(a) or 11(d) CPC or suit not being maintainable and liable to be rejected at threshold. As such, it is necessary to hold that third defendant is attempting to raise its plea or defence in installments which cannot be countenanced.
20. For the reasons aforestated, this court is of the considered view that substantial question of law formulated herein above deserves to be answered in the affirmative i.e., against appellant - third defendant and in favour of respondent - plaintiff.
Hence, I proceed to pass the following:
34
JUDGMENT
(i) Regular Second Appeal is hereby dismissed with costs.
(ii) Judgment dated 12.08.2015 passed by IV Additional District and Sessions Judge, Madhugiri in R.A.No.5003/2015 stands affirmed.
(iii) Registry is hereby directed to
transmit the original records to the
jurisdictional court for suit being
disposed of on merits and in
accordance with law.
(iv) Records of Court below are ordered to
be returned back to respective courts forthwith by the Registry.
All pending applications stand consigned to records.
Sd/-
JUDGE *sp