Madras High Court
Abdul Suban vs Syed Tharu Hussain on 26 September, 2006
Equivalent citations: AIR 2007 (NOC) 817 (MAD.) (MADURAI BENCH)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/09/2006 CORAM : THE HONOURABLE MR.JUSTICE K.VENKATARAMAN C.R.P.(PD)(MD)No.322 of 2005 Abdul Suban ... Petitioner Vs Syed Tharu Hussain ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 24.3.2005 made in I.A.No.206 of 2005 in I.A.No.57 of 2005 in O.S.No.28 of 2005 on the file of the District Munsif, Thirumangalam. !For Petitioner ... Mr.VR.Shanmuganathan ^For Respondent ... Mr.T.V.Sivakumar :ORDER
The present revision is directed against the order of the learned District Munsif, Thirumangalam dated 24.3.2005 in I.A.No.206 of 2005 in I.A.No.57 of 2005 in O.S.No.28 of 2005.
2. The petitioner herein filed the suit against the respondent herein and others in O.S.No.28 of 2005 on the file of the District Munsif, Thirumangalam for grant of permanent injunction restraining the defendants in the said suit from interfering with his possession and enjoyment of the suit property. The respondent, who is the first defendant in the said suit, has filed an application to decide the issue of jurisdiction at the first instance. In the said application, it has been stated that the suit property is a wakf property and hence, the District Munsif Court, Thirumangalam, where the suit has been filed, has no jurisdiction to try the same. The petitioner, who was the respondent in the said application, resisted the same stating that the suit property is not a wakf property and hence, the suit filed before the said Court cannot be termed as not maintainable. The learned Trial Judge, after discussing the entire facts and circumstances of the case, allowed the said application and returned the plaint to be presented before the proper Court. Challenging the said order, the plaintiff has come forward with the present Civil Revision Petition.
3. Mr.VR.Shanmuganathan, the learned counsel appearing for the petitioner, has vehemently contended that:-
(a) The suit is for bare injunction and not for declaration of title and hence, the suit before the District Munsif, Thirumangalam is perfectly valid.
(b) Since the petitioner disputes the claim of the respondent that the suit property is a wakf property, the same can be decided only at the time of the final trial and hence, it cannot be decided as a preliminary issue.
(c) When the other defendants have not been served, the preliminary issue raised by the respondent alone cannot be taken note of.
(d) Since the pleadings itself is not completed in view of the fact that the respondent and other defendants did not file any written statement, deciding the maintainability of the suit based on one of the defendants claim by way of a petition under Order 14 Rule 2 C.P.C. is erroneous.
(e) The learned District Munsif ought to have seen that invoking Order 14 Rule 2 C.P.C. will arise only after framing of issues, if the court comes to the conclusion that it has to decide a question of law before deciding the other issues of facts, it could decide the same. Hence, in the present case on hand, since no issues have been framed, the application under Order 14 Rule 2 C.P.C. is erroneous.
4. Per contra, Mr.T.V.Sivakumar, the learned counsel appearing for the respondent, has vehemently contended that:-
(a) The present suit is not at all maintainable in view of the fact that the suit property is a wakf property and the remedy of the petitioner is to approach the Wakf Tribunal and not the present Court where the suit has been filed.
(b) Section 85 of the Wakf Act clearly says that no suit lie in any Civil Court relating to any wakf property.
(c) As per Section 6 of the Wakf Act, if any question arises whether a particular property is a wakf property or not, any person interested therein may institute a suit in a Wakf Tribunal.
5. I have carefully gone through the contentions raised by the counsel on both sides.
6. The suit property itself has been mentioned in the plaint as Shah Hussain Perrsi Oliyullah Durga. Moreover, in the counter to the application filed by the respondent herein, it has been clearly stated by the petitioner herein that in respect of the subject matter of the suit property, there is already proceedings before the Principal Sub Court (Wakf Tribunal), Madurai.
7. The respondent herein filed an affidavit in support of the application wherein it has been clearly stated that the suit property has been declared as wakf property in the Government Gazette notification dated 27.5.1959. Further, in the said counter, it has been clearly spelt out that O.S.No.309 of 1997 pending on the file of the District Munsif, Thirumangalam was transferred to the Principal Sub Court (Wakf Tribunal), Madurai and renumbered as W.O.P.No.11 of 2000. The petitioner's mother Tmt Saidani Bibi is the 6th defendant in the W.O.P.No.11 of 2000.
8. Mr.T.V.Sivakumar, learned counsel for the respondent, pointing out the averments in the said counter, vehemently contended that the petitioner, who had full knowledge of the previous proceedings has filed the present suit before the District Munsif, Thirumangalam only with a view to mislead the Court and get some orders in his favour.
9. While so, the contention of Mr.VR. Shanmuganathan, learned counsel for the petitioner, is that since nowhere it has been admitted in the plaint that the suit property is a wakf property, it cannot at any stretch of imagination be said that the suit before Civil Court is not maintainable. Having clearly mentioned in the plaint that the subject matter of the suit property is a Durga and also having accepted in the counter to the application filed by the respondent herein that there is already proceedings before the Wakf Tribunal in respect of the same subject matter of the suit property, the said argument of the learned counsel for the petitioner cannot be sustainable.
10. Section 85 of the Wakf Act, 1995 reads as follows:-
"85. Bar of jurisdiction of Civil Courts.-- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal."
Further, Section 6 of the Wakf Act reads as under:-
"6. Disputes regarding wakfs.-- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final."
11. Thus, Section 6 of the Wakf Act clearly says that even in a case where any question arises whether a particular property specified as wakf property or not, it has to be decided only by the Wakf Tribunal and not by any Civil Court. Furthermore, as rightly pointed out by the learned counsel for the respondent, the suit property has already been declared as wakf by the Government notification dated 27.5.1959. Hence, I am constrained to hold that the District Munsif, Thirumangalam has no jurisdiction to decide the suit filed by the petitioner herein.
12. This Court had an occasion to deal with the matter relating to the wakf properties in I.SALAM KHAN v. THE TAMIL NADU WAKF BOARD, CHENNAI (2005 (I) M.L.J. 646) wherein the First Bench of the Principal Seat of this Court has held as under:-
"Under Section 83(5) of the Wakf Act, 1995, the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2-A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a wakf or wakf property."
13. The learned counsel for the petitioner has further submitted that as per Order 14 Rule 1(5) C.P.C., only after framing the issues, the person, who wants to canvas about the jurisdiction or bar of suit, can file an application before the concerned Court. The learned counsel has taken me to the provisions under Order 14 Rule 1(5) C.P.C. which reads as under:-
"1. Framing of issues.-- (1)... (2)... (3)... (4)... (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend."
Order 14 Rule 2 C.P.C. reads as under:-
"2. Court to pronounce judgment on all issues.-- (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues."
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to --
(a) the jurisdiction of the Court, or
(b) bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks ift, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
14. Thus, according to the learned counsel for the petitioner, in view of Order 14 Rule 1(5) C.P.C., the application filed by the respondent to frame a preliminary issue regarding jurisdiction is not maintainable, since at the time when the application has been filed, issues have not been framed. I am unable to accept the said submission of the learned counsel for the petitioner. Order 14 Rule 2 C.P.C. specifically says that where issues both of law and fact arise in the same suit and if the Court feels that the case can be disposed of on issue of law only, it may try that issue first if that issue relates to the jurisdiction of the Court or bar of suit.
15. As discussed earlier, it is a clear case of abuse of process of law in filing the suit before the District Munsif, Thirumangalam. The petitioner, who is well aware about the fact that the suit property is a wakf property and that already proceedings are pending before the Waft Tribunal in respect of the same property, has filed the suit for bare injunction. Therefore, the respondent need not wait till all the defendants are served in the suit, issues are framed and then file the application raising the question of jurisdiction. When on fact and on law it can be prima facie seen that the suit is not maintainable, it cannot be said that the application is pre-mature.
16. Thus, looking at any angle, the order of the learned District Munsif, Thirumangalam dated 24.3.2005 in I.A.No.206 of 2005 in I.A.No.57 of 2005 in O.S.No.28 of 2005 cannot be said to be erroneous, error, unreasonable or without jurisdiction. In fine, the impugned order passed by the learned District Munsif, Thirumangalam is confirmed and the Civil Revision Petition is dismissed. However, there is no order as to costs.
dpp To The District Munsif, Thirumangalam.