Haji Abdul Latif & Anr. vs Azizuddin & Anr.
2012 Latest Caselaw 5425 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRP NO. 11/2012

                                       Date of Decision: 11.09.2012

HAJI ABDUL LATIF & ANR.                         ...... PETITIONER
                  Through:             Mr. Shahid Ali, Adv.

                              Versus

AZIZUDDIN & ANR.                              ...... RESPONDENT
                         Through:      Counsel for the respondent No.
                                       1.
                                       Ms.Ritu Bhardwaj, Adv. for
                                       R2/NDMC.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition seeks assailing the order dated 25.11.2011 of CCJ, whereby the application of the petitioners under Order 7 Rule 11 CPC, who were the defendants No. 1 and 2 in the suit, was dismissed.

2. The respondent No. 1 Azizuddin had filed a suit for permanent injunction against the present petitioners (defendants No. 1 & 2) as also defendant No. 3 NDMC. In the said suit, an application under Order 7 Rule 11 CPC was filed by the petitioners (defendant Nos. 1 & 2) for rejection of the plaint. The main premise of filing of the application under Order 7 Rule 11 CPC was that the

suit was with regard to the property owned and possessed by the Delhi Waqf Board and as per Section 85 of the Waqf Act, 1995, the jurisdiction of the Civil Court was barred. The learned Trial Judge rejected the application, observing that the action alleged by the respondent No. 1/plaintiff was not against the Waqf Board, but against the individualistic actions on the part of the petitioners. It is this order of the Trial Judge, which is under challenge in the instant petition.

3. I have heard learned counsel for the petitioners as also the respondents and gone through the record. A look at the plaint, which was filed by the respondent No. 1, would demonstrate that he had been claiming himself to be the licensee of the suit shop of Masjid Irwin Road, which according to the his own showing, was a Waqf property. Averment in this regard has been repeatedly made by the respondent No. 1 at various places in the plaint, where certain allegations have been made against the Chief Executive Officer of the Delhi Waqf Board for not granting of tenancy rights or for renewal of the tenancy in respect of the suit shop. On asking, the learned counsel appearing for the respondent No. 1 fairly conceded to the effect that the suit, that was filed by the respondent No. 1, has such averments at various places, wherein, he had been claiming the suit property as Waqf property. The action that was alleged against the petitioners cannot be said to be in their individual capacity, as they were none else but the senior Executive members of the Masjid,

and were responsible for managing the affairs of the Masjid and its properties. The learned Trial Judge has given very narrow interpretation to Section 85 of the Waqf Act. It is settled law that the provisions of Section 85 of Waqf Act, are of wide amplitude. A reference is made to the case of Division Bench of Madras High Court titled Salam Khan & Ors. Vs. Tamil Nadu Wakf Board, AIR 2005 Madras 241, wherein it is observed as under:

"6. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words any dispute, question or other matters relating to a Wakf or Wakf property are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word Wakf has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. It is not proper for this Court to straight away entertain writ petitions relating to a Wakf or Wakf property when there is a special Tribunal constituted for this purpose.

8. 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 2A 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".

4. It is settled proposition of law that if the dispute fell within the ambit of Section 85 of the Waqf Act, the Civil Court would have

no jurisdiction, as has also been laid down by the Supreme Court in the case of Dhulabai & Ors. Vs. The State of Madhya Pradesh & Anr., 1969 SC 78.

5. In view of my above discussion, the learned Trial Judge seems to have fallen in error in construing the provision of Section 85 of the Waqf Act over-looking the controversy that was sought to be raised by the respondent. The controversy that was sought to be raised by the respondent-plaintiff was within the ambit of section 85 of the Waqf Act, and thus within the jurisdiction of the Waqt Tribunal. Consequently, the Civil Court will not have jurisdiction to entertain such a suit. Resultantly, the application under Order 7 Rule 11 CPC of the petitioners stands allowed and the plaint filed by the respondent/plaint is rejected.

M.L. MEHTA, J.

SEPTEMBER 11, 2012/akb