Allahabad High Court
Mohammad Mukhtar Ahmad Raza ... vs Gulam Abdul Kadir Alvi on 1 March, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 1942 of 2023
Petitioner :- Mohammad Mukhtar Ahmad Raza (Since Deceased) And 6 Others
Respondent :- Gulam Abdul Kadir Alvi
Counsel for Petitioner :- Sachchidanand Srivastava,Hemant Kumar
Counsel for Respondent :- Mohammad Ali Ausaf
Hon'ble Ajit Kumar,J.
1. Heard Sri Hemant Kumar, learned counsel for the defendant/ petitioner and Sri V.K. Singh, learned Senior Advocate assisted by Sri Mohammad Ali Ausaf, learned counsel for the contesting plaintiff/ respondent.
2. The petitioners, who are the defendants in the suit being O.S. No. 474 of 1992 instituted for a declaratory decree, are aggrieved by the order passed by the trial court dated 02.12.2021, whereby, their misc. application seeking amendment in the additional written statement has been rejected. He challenged the same before the court in revision which has also been dismissed and the revisional court order is under challenge in this petition.
3. The petitioners have challenged the order on two counts, firstly, once the issue was framed as issue no. 12 regarding maintainability of the suit for want of cause of action, the trial court was not justified to strike out the issue without there being any application filed by any of the parties in that behalf and secondly, a mere incorporation of small alphabet 'a' after Rule 11 in para 30 of the additional written statement would only be clarificatory in nature qua the issue no. 12 and is not going to cause any prejudice in any manner to the plaintiff as no defence stand is going to be changed.
4. Yet another argument has been advanced by learned counsel for the petitioners that the territorial jurisdiction issue is also involved in the matter as according to him the territorial jurisdiction would lie of district Basti and not of district Siddharth Nagar to entertain a suit and try the same.
5. Per contra Mr. Singh, learned Senior Advocate has argued that as far as second point is concerned regarding territorial jurisdiction of district Siddharth Nagar, the suit itself was instituted in district Basti as the suit property lay in Tehsil Bansi then part of district Basti. However, later on Siddharth Nagar district came to be carved out from Basti and Tehsil Bansi fell in the territory of district Siddharth Nagar, and therefore, now Judgeship of Siddharth Nagar is the competent court.
6. He submits that this plea that the Judgeship of district Siddharth Nagar does not have a territorial jurisdiction to try the suit is wholly misplaced and baseless.
7. He next submits that there was plea taken before the trial court that the issue no. 12 should be strike out and so the issue has been strike out and therefore, it cannot be said that there was no plea made before the trial court. He further submits that since the issue no. 12 has been strike out by the trial court the amendment application filed by the petitioners to insert small alphabet 'a' after the word Rule 11 had no relevance.
8. Having heard learned counsel appearing for the respective parties and perused the record and the order passed by the trial court affirmed in revision, I find that the trial court framed consciously an issue, after hearing the parties, as issue no. 12 with regard to the bar of suit under Order VII Rule 11(a) of the Code of Civil Procedure, 1908. An amendment application was filed to get the additional written statement amended by incorporating small alphabet (a) after the word Rule 11, naturally to meet the pleadings qua the bar as per the issue no. 12.
9. From the recitals made in the order of the trial court, I do not find any other application except application no. 382-C and the affidavit filed as 383-C upon which the date was fixed and the matter was heard. The plea taken by the plaintiff/ respondent in the case was that the issue of bar under Order 7 Rule 11 having been decided by this Court by a detailed judgment in the earlier round of litigation dated 20.05.2014, it was not open for the defendant to raise this plea again and it is in that light that an oral plea it appears to have been made that the issue needed to be struck out. The court while rejecting the application for amendment under Order 7 Rule 11 also streak out the issue no. 12.
10. In my considered view, unless and until there is a specific application made to strike out a particular issue already framed after hearing the parties, it was not open for the court to strike it out merely because an amendment application was filed to clarify the position with regard to bar created under Order 7 Rule 11(a). The nature of issue that was framed is referable to order 7 Rule 11(a) only and, therefore, the amendment ought to have been taken to be only clarificatory in nature.
11. In this view of the matter, therefore, I am not able to approve the order passed by the trial court in so far as it rejects the amendment application. The trial court has not deliberated at length about the issue no. 12 nor, there was any application to strike out that issue. It appears that it has proceeded to strike out the issue only on the ground that earlier this court had decided that the suit was not barred under Order 7 Rule 11 C.P.C.
12. I have gone through the detailed judgment earlier passed by this Court and I find that the issue was relating to the legal bar created under Section 85 of the Waqf Act, 1995. The court held that the Waqf Act having been enacted in the year 1995 and enforced w.e.f. 01.01.1996, the legal bar was prospective in the nature and was also so held by the Supreme Court in the case of Sardar Khan's case referred to in the said judgment. In so far as the cause of action is concerned that is a different issue in nature and therefore, merely because the suit has been held to be maintainable and not barred by Section 85 of the Waqf Act, it cannot be said that there existed a cause of action to maintain the suit. This issue can always be decided by the trial court once it is framed on its own merit. The manner in which the trial court has streak out issue no. 12 and the reasons assigned for striking out issue no. 12 is held to be unsustainable.
13. However, in so far as the amendment regarding territorial jurisdiction is concerned, since the suit itself was instituted in district Basti and the suit property lies in the territory of Tehsil Bansi which now falls in district Siddharth Nagar, I do not find this issue any more survives and so the amendment to that extent is quite unnecessary.
14. In view of the above, therefore, this petition partly succeeds and is allowed.
15. The order dated 02.12.2001 passed by the trial court as well as the order passed by the revisional court dated 06.12.2022 are hereby set aside to the extent the issue no. 12 has been struck out and the amendment to insert small alphabet (a) after Rule 11 in paragraph no. 30 of the additional written statement has been rejected.
16. The petitioner is permitted to carryout necessary amendment within three weeks from today by inserting small alphabet 'a' after the words Rule 11 in paragraph no. 30 of the additional written statement.
17. The suit is of the year 1992 and issues have already been framed and it is at the stage of evidence of the parties, so I find it necessary to expedite the proceedings to be concluded in some time bound period.
18. In view of above, this Court thinks it proper to direct for its expeditious disposal. Accordingly, following directions are issued:
A). The court concerned shall ensure that the plaintiffs records its evidence within a period of three months from the date of production of certified copy of this order and the defendant cooperates in recording of evidence of plaintiff within the time prescribed by this Court;
B). After plaintiffs' evidence is recorded and evidence comes to close, the Court will proceed to record evidence of the defendant within the next three months' time and will ensure that plaintiffs cooperate in conclusion of the evidence of the defendant within the time prescribed by this Court; and
C). After conclusion and closure of evidence by both the parties to the suit, the trial court will proceed to conduct final hearing of the suit and decide the same as expeditiously as possible, preferably within a period of three months, however, in the order of other expedited suits, if pending before it.
19. It is clarified that in the event, this order could not be carried out within the time frame fixed, for any technical reason, then for such delay in disposal of the suit and pendency thereof itself shall ordinarily not be a ground sufficient enough to fasten the authority concerned with any personal liability of contempt.
20. With the aforesaid observations and directions, this petition stands disposed of.
Order Date :- 1.3.2023
IrfanUddin
