Allahabad High Court
Zainuddin And Another vs Ist Additional District Judge, ... on 3 May, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 21
Case :- MATTERS UNDER ARTICLE 227 No. - 2285 of 2023
Petitioner :- Zainuddin And Another
Respondent :- Ist Additional District Judge, Distt. Bahraich And 2 Others
Counsel for Petitioner :- Dinesh Chandra Tewari
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioners. In view of order being passed, notices to opposite parties stand dispensed with.
Petition under Article 227 of Constitution of India has been filed challenging order dated 9th October, 2019 passed in Civil Suit No. 396 of 2014 instituted by opposite party No.3 for permanent injunction. By means of aforesaid order, application filed by petitioner as defendant under Order 7 Rule 11 of the Code of Civil Procedure has been rejected. Also under challenge is the order dated 15thMarch, 2023 passed in Revision No. 40 of 2019 rejecting the same.
Learned counsel for petitioners submits that although in the plaint, plaintiff has alleged property belonging the plaintiff with his name being entered in the revenue records as title holder but in fact the suit property is a mosque since time immemorial, where villagers are also offering namaz. It is submitted that the said fact has been concealed by the plaintiff due to which application under Order 7 Rule 11 of the Code was filed with specific averment that suit property is in fact a mosque and is recorded as waqf due to which only a suit under the Waqfs Act would be maintainable. It is further submitted that by means of impugned orders, the application has been rejected without considering submissions advanced by petitioners.
Upon consideration of submissions advanced by learned counsel for petitioners and perusal of material on record, it is evident from reading of plaint that the plaintiff has stated in paragraph 1 that he is owner in possession of gata No.199 having an area of 146 Hectares situate in the village in question and is also recorded in the revenue records as owner in possession. The cause of action regarding efforts being made by the defendant to dispossess plaintiff from the property in question has also been indicated in the plaint. It is only in the application under Order 7 Rule 11 filed by the defendant that the plea has been taken regarding property belonging to a waqf.
It is settled law as enunciated in a plethora of judgments that at the stage of consideration of application under Order 7 Rule 11 of the Code, only the averments made in the plaint are required to be seen to indicate whether any of the clauses of Order 7 Rule 11 would be applicable.
It is evident that by means of impugned order, the application under Order 7 Rule 11 of the Code has been rejected primarily on the ground that cause of action has been clearly indicated in the plaint and written statement or averments regarding property being a waqf property is required to be considered only after leading of evidence. Revisional court has also followed the same reasoning.
In view of judgments rendered by Hon'ble Supreme Court in the present facts and circumstances of the case, it is evident that application under Order 7 Rule 11 of the Code has been preferred by the defendant raising a claim that suit property is a mosque and does not belong to the plaintiff. Evidently the aforesaid assertion is subject to evidence which would be required to be led subsequently and at the stage of consideration of an application under Order 7 Rule 11 of the Code, pleadings made in the written statement or otherwise in the application itself are not a requirement to be considered by the court concerned, which at the stage of consideration of the said application is required to see only whether cause of action is made out from the averments made in the plaint.
In view of aforesaid discussion, no exception can be taken to the orders impugned. The petition as such being devoid of merits is dismissed at the admission stage itself.
Office is directed to transmit a copy of this order to be placed on record of civil suit No. 396 of 2014 (Wali-ur-Rehman versus Zainuddin and others), pending in the court of Civil Judge, Junior Division, Kaiserganj, Bahraich.
Order Date :- 3.5.2023
prabhat
