Karnataka High Court

Zakir Hussain vs The Karnataka State Board Of Auqaf And ... on 8 November, 2024

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                                              -1-
                                                           NC: 2024:KHC-K:8209
                                                        CRP No. 200123 of 2023




                            IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                        DATED THIS THE 8TH DAY OF NOVEMBER, 2024

                                           BEFORE
                          THE HON'BLE MR. JUSTICE M.G.S.KAMAL


                    CIVIL REVISION PETITION NO. 200123 OF 2023 (RES)


                   BETWEEN:

                   ZAKIR HUSSAIN S/O MADAR SAB,
                   AGE: 51 YEARS, MUTAWALLI DARGAH
                   HAZARAT SYED BAHAUDDIN PEER
                   @ ZINDA SHAH MADAR (RH)
                   KOHINOOR PAHAD, TQ. BASAVAKALYAN,
                   DIST. BIDAR-585327.
                                                                  ...PETITIONER
                   (BY SRI SACHIN M. MAHAJAN, ADVOCATE)

                   AND:
Digitally signed
by SHIVALEELA
DATTATRAYA         1.   THE KARNATAKA STATE BOARD OF AUQAF
UDAGI
                        BENGALURU
Location: HIGH
COURT OF                REPRESENTED BY ITS
KARNATAKA               CHIEF EXECUTIVE OFFICER
                        "DARUL AUQAF" 6TH MAIN,
                        CUNNINHAMG ROAD BENGALURU-560052.

                   2.   ABDUL QAYYUM
                        S/O MOHIUDDIN SAB SHARIFA,
                        AGE: 54 YEARS, OCC: BUSINESS,
                        R/O ROOM NO.1, SAYYED JAFAR
                        CHAWL HIL KURLA,
                        EAST KURLA MUMBAI-400070.
                            -2-
                                     NC: 2024:KHC-K:8209
                                  CRP No. 200123 of 2023




3.   MOHIUDDIN SAB
     S/O ISMAIL SAB TANTA,
     AGE: 61 YEARS, OCC: AGRICULTURE,
     R/O VILLAGE KOHINOOR PAHAD,
     TQ. BASAVAKALYAN, DIST. BIDAR-585327.

4.   MAHEEBOOB SAB
     S/O MADAR SAB SAANURYE,
     AGE: 49 YEARS, OCC: AGRICULTURE,
     R/O VILLAGE KOHINOOR PAHAD,
     TQ. BASAVAKALYAN, DIST. BIDAR-585327.

5.   ABDULLA
     S/O IBRAHIM SAB MADANA,
     AGE: 53 YEARS, OCC: BUSINESS,
     R/O VILLAGE KOHINOOR PAHAD,
     TQ. BASAVAKALYAN, DIST. BIDAR-585327.

6.   MAHETAB SAB
     S/O MOHAMMED SAB BALA,
     AGE: 71 YEARS, OCC: AGRICULTURE,
     R/O VILLAGE KOHINOOR PAHAD,
     TQ. BASAVAKALYAN, DIST. BIDAR-585327.

                                         ...RESPONDENTS
(BY SRI P.S. MALIPATIL, ADVOCATE FOR R1;
 SRI MEER MOHAMMED ALI, ADVOCATE FOR R2;
 R3 TO R6 ARE SERVED)

     THIS CRP IS FILED UNDER SECTION 83 (9) OF THE
WAQF ACT, 1995 PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 07.10.2023 PASSED BY THE KARNATAKA WAQF
TRIBUNAL, KALABURAGI DIVISION, KALABURAGI, ON IA NO.4
IN OS NO.25/2022 AND REMAND THE MATTER TO THE WAQF
TRIBUNAL FOR CONSIDERATION AFRESH ON MERITS OF THE
CASE BY CONDUCING FULL-FLEDGED TRIAL, BY ALLOWING
THE REVISION PETITION.

    THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
                                 -3-
                                                  NC: 2024:KHC-K:8209
                                            CRP No. 200123 of 2023




CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL


                          ORAL ORDER

(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

The petitioner/plaintiff is before this Court being

aggrieved by the order dated 07.10.2023 passed in

O.S.No.25/2022 on the file of the Karnataka Waqf

Tribunal, Kalaburagi Division, Kalaburagi (hereinafter

referred to as 'the Tribunal' for short) by which the

Tribunal allowing the application filed by defendant No.2

under Order 7 Rule 11(a) and (d) of CPC rejected the

plaint.

2. The above suit is filed by the petitioner/plaintiff

seeking following reliefs:

A) It be declare that the plaintiff is the hereditary mutawalli of Dargah Zinda Shah Madar (RH), Kohinoor Pahad, Taluka Basavakalyan Dist.Bidar.

B) The name Hydersab/Madar Sab appeared in Col.No.6 of Sl.No.238 of the Gazetted notification No.KTW/561/ASA/74 dated 11.02.1974, be deleted and incorporate the name of plaintiff.

NC: 2024:KHC-K:8209

C) The name of plaintiff Zakeer Hussain S/o Madar Sab be incorporate in Col.No.6 at Sl.No.405 of the Gazette Notification No.KTW/561/ASA/74 dated 11.02.1974.

D) The defendant No.2 be restrained perpetually from interfering, creating obstruction in discharge of duties and responsibilities of plaintiff Mutawalli, in the management, administrative and development, of notified dargah Hazrat Zinda Madar Shah (RH) Tq.Basavakalyan Dist.Bidar.

E) Any such other relief under the facts and circumstances of the case, plaintiff is entitled may kindly be granted in the interest of justice and equity.

3. A detailed written statement has been filed by

the defendant No.2 denying the plaint averments and

allegations. Defendant No.2 also filed an application under

Order 7 Rule 11(a) and (d) of CPC seeking rejection of

plaint. Objection statement to the said applications has

been filed by the petitioner. The Tribunal framed the

following points for its consideration:

           1)    Whether I.A.No.4 under Order VII
                 Rule 11 (A & D) of CPC filed by the
                 defendant No.2 deserves to be
                 allowed?

           2)    What order?

                                          NC: 2024:KHC-K:8209

and by the impugned order allowed the application by

rejecting the plaint.

4. The learned counsel for the petitioner

reiterating the grounds urged by the memorandum of

petition submitted that the Tribunal grossly erred in

rejecting the plaint, taking into consideration the defense

set up by the defendants in the written statement, which

is reproduced verbatim in the application seeking rejection

of the plaint. He submits primarily the Tribunal has

rejected the plaint on the ground of same having been

adjudicated in earlier round of litigation and plaintiff not

seeking a larger relief in the earlier round of litigation. He

submits that these two grounds primarily falls within the

provisions of res judicata and Order 2 Rule 2 which cannot

be ground for rejection of plaint.

5. He submits for the purpose of cause of action

the plaintiff at paragraph No.28 of the plaint has pleaded

in elaboration and the Tribunal without adverting to the

NC: 2024:KHC-K:8209

same has erroneously held that the cause of action

pleaded by the plaintiff is illusory and has proceeded to

reject the plaint accordingly. He submits plaintiff has

sought for as many as four reliefs. One of them is seeking

correction in the Notification of the year 1974. That the

Tribunal has erroneously construed the said relief to be

challenged to the very notification and referring to Section

6 and 88 of the Waqf Act, the Tribunal has held the suit is

barred. He submitted such an approach by the Tribunal is

impermissible as seeking correction to the notification

would not amount to challenge the notification itself. In

any event, he submits that the plaintiff is not questioning

the nature of the waqf and is only seeking insertion of

name of his father in the notification, which could not fall

within the ambit of prohibition contained under Section 6

of the Waqf Act.

6. In support of his case, the learned counsel for

the petitioner has relied upon the following judgments:

NC: 2024:KHC-K:8209

1. P.V.Guru Raj Reddy, Rep. by GPA Laxmi Narayan Reddy & Anr. Vs. P.Neeradha Reddy & Ors. Etc. [2015 SAR (Civil) 385]

2. R.K.Roja vs. U.S. Rayudu & Anr. [2016 AIAR (Civil) 702]

3. Vaish Aggarwal Panchayat vs Inder Kumar and Others [2015 SAR (Civil) 1151]

4. Mayar (H.K.) Ltd. & Ors. Vs Owners & Parties, Vessel M.V.Gortune Express & Ors. [2006 SAR (Civil) 209]

5. Keshav Sood vs. Kirti Pradeep Sood & Ors [Civil Appeal No.5841 of 2023 (arising out of SLP (civil) No.35740/2017)]

Thus, he submits that the whole approach of the Tribunal

in rejecting the plaint is contrary to the provisions

contained under Order 7 Rule 11 of CPC and the settled

principles of law enunciated in the aforesaid judgments.

7. Per contra, learned counsel for the respondent-

defendant No.2 justifying the order passed by the Tribunal

submits that there was suppression of facts with regard to

earlier suit filed by the plaintiff in O.S.No.6/2014 wherein

the plaintiff had asked similar relief and the Tribunal in the

NC: 2024:KHC-K:8209

said suit had issued a mandatory injunction directing the

respondent-Board to consider the claim of the petitioner to

the mutawalli. He submits once the claim of the petitioner

having been adjudicated and determined suppressing the

said fact, he could not have filed a subsequent suit, which

amounts to suppression of fact leading to rejection of

plaint.

8. He further submits that prayer No.2 of the

plaint amounts to challenge to a notification, which is

prohibited under Section 88 of the Act falling under the

provisions of clause(d) of Order 7 Rule 11 of CPC has

challenged to the said notification as is prohibited under

the said provision. On these grounds, he seeks for

rejection of the petition.

9. Further the learned counsel for respondents has

relied upon the following judgments:

1) N.V.Srinivasa Murthy and others vs. Mariyamma (dead) by proposed LRs and others [ AIR 2005 SC 2897]

NC: 2024:KHC-K:8209

2) Madanuri Sri Rama Chandra Murthy vs Syed Jalal [AIR 2017 SC 2653]

10. Heard. Perused the records.

11. It is settled principle of law that for the purpose

of determination of application under Order 7 Rule 11 of

CPC for rejection of plaint, it is only plaint averments and

the documents enclosed therewith are to be considered

and not the defence set up by the defendant. In order to

ascertain if there is any cause action or if the suit

otherwise barred under any law, the entire plaint

averments have to be read with due application of mind

and not in a selective manner.

12. The plaintiff has filed the above suit seeking

relief of declaration to declare him as a hereditary

mutawalli of Dargah Zinda Shah Madar (RH), Kohinoor

Pahad, Taluka Basavakalyan, District Bidar. The said relief

is sought by the plaintiff claiming to be the descendant of

Khudabaksha, who is his ancestor.

- 10 -

NC: 2024:KHC-K:8209

13. Paragraph No.2 of the plaint is with regard to

alleged wrong entry of the name of the mutavalli in the

notification dated 11.02.1974 and for insertion of the

purported correct name of the mutavalli. Paragraph Nos.3

to 12 of the plaint is with regard to the origin, history and

the details of the ancestors of the plaintiff. Paragraph

No.13 of the plaint is with regard to the purported

recognition of service of the plaintiff and his brothers as

mutavalli. At paragraph No.14 of the plaint the plaintiff

has indeed pleaded about his earlier suit in O.S.No.6/2014

and the order passed therein and in furtherance thereof

the plaintiff seems to have ensued correspondence with

the respondent-Waqf Board seeking implementation of the

said order.

14. Averments made in paragraph Nos.15 to 22 of

the plaint are with regard to various correspondences that

have ensued between the plaintiff and the respondent-

Waqf Board in furtherance to the order passed in

O.S.No.6/2014.

- 11 -

NC: 2024:KHC-K:8209

15. From paragraph Nos.23 to 25 plaintiff has

sought for correction of the name in the notification dated

11.02.1974 by deleting the name of one Hyder Sab to

insert name of the plaintiff. Paragraph No.26 is against the

defendant No.2 denying the right of the plaintiff to be the

mutavalli and his alleged rights to manage and

administrate the institution. Paragraph No.27 is with

regard issuance of notice. Paragraph No.28 is with respect

to dates on which the cause of action alleged to have

arose.

16. It is trite law that the term cause of action

means bundle of facts if traversed requires to be proved

by the party asserting so. The inquiry under Order 7 Rule

11 (a) CPC is only to find out whether the facts pleaded

disclose some cause of action, raising question fit to be

decided by the Judge.

17. Tribunal at paragraph Nos.8, 9, 10, 11 and 12

of the impugned order has referred to the relief sought for

by the petitioner in the present proceedings and with

- 12 -

NC: 2024:KHC-K:8209

regard to his earlier suit in O.S.No.6/2014, and the decree

obtained thereunder. Having referred to the same, the

Tribunal has found that the plaintiff had not sought for

declaration with regard to name of the mutavalli in the

earlier suit as being sought in the present suit. As such,

the Tribunal has held that the petitioner is not entitled for

such a relief in the present suit. The Tribunal has further

referring to Section 6 and 88 of the Waqf Act, 1995 and

has concluded that a notification cannot be challenged

after expiry of one year from the date of its publication

and that in the instant case, the plaintiff is seeking to

challenging the notification after forty eight (48) years.

18. Further, in the impugned order except at

paragraph No.18, wherein the Tribunal has made passing

remark to the effect "the cause of the action shown by the

plaintiff is imaginary one", and ''because already plaintiff

had obtained a decree in O.S.No.6/2014 had suppressed

the same'', there is no other reason of any nature

- 13 -

NC: 2024:KHC-K:8209

whatsoever assigned as to why the Tribunal found the

cause of action shown by the plaintiff is imaginary one.

19. At paragraph Nos.19 to 31 of the impugned

order are the extracts of the various judgments and

provisions of law. There is absolutely no reference to the

averments made in the plaint justifying a cryptic remark

made at paragraph No.18 as referred to hereinabove.

20. The exercise of power under Order 7 Rule 11 of

CPC is exceptional and should be for the reason within the

strict compliance of the law provided thereunder. The

application filed by the respondent/defendant No.2

indicate that the same is reiteration of the defense, which

is elaborately set out in a lengthy written statement and

the same cannot be the ground for rejection of plaint.

21. Though, Sections 6 and 7 of the Waqf Act, 1995

prohibit filing of the suit challenging the notification after

expiry of one year from the date of its publication, the

challenge contemplated therein is with regard to disputes

- 14 -

NC: 2024:KHC-K:8209

pertaining to nature of Waqf property. Whether said

provisions also prohibit a challenge with regard to contents

of notification pertaining to the names of mutavalli

contending such notifications or not is not adverted to by

the Tribunal. Similarly, Section 88 of the Waqf Act, 1995

does not completely prohibit a challenge to the validity of

any notification, inasmuch as a very section reads ''save

as otherwise expressly provided in this Act...''. The

Tribunal not adverted to this aspect of the matter either.

22. As regards, the plaintiff obtaining the decree in

the earlier suit or with regard to he not seeking larger

relief thereunder, cannot be a ground to reject the plaint

under Order 7 Rule 11 of the CPC inasmuch as the said

grounds would fall under provisions of Order 2 Rule 2 and

Section 11 of the CPC which are matters involving mixed

questions of fact and law warranting adjudication based on

trial and evidence.

23. For the aforesaid reasons, I pass the following:

- 15 -

NC: 2024:KHC-K:8209

ORDER

(i) The petition is allowed and the matter is remitted to the Tribunal to adjudicate the suit strictly in accordance with law.

(ii) The impugned order is set aside.

(iii) The Tribunal shall dispose of the matter as expeditiously as possible within a period of one year from the date of receipt of a certified copy of this order.