Karnataka High Court
Abdul Qayyum vs Zakir Hussain And Anr on 8 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2024:KHC-K:8208
CRP No. 200005 of 2024
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. 200005 OF 2024
BETWEEN:
ABDUL QAYYUM S/O MOHIUDDIN,
AGE ABOUT 51 YEARS, OCC: MUTAWALLI
DARGAH HAZARAT ZINDE SHAH MADAR
KOHINOOR PAHAD,
R/O VILLAGE KOHINOOR PAHAD,
TQ. BASAVAKALYAN, DIST. BIDAR-585327.
...PETITIONER
(BY SRI MEER MOHAMMED ALI, ADVOCATE)
AND:
1. ZAKIR HUSSAIN S/O MADAR SAB,
Digitally signed
by SHIVALEELA AGE ABOUT 60 YEARS, OCC: AGRICULTURE,
DATTATRAYA R/O VILLAGE KOHINOOR PAHAD,
UDAGI TQ. BASAVAKALYAN, DIST. BIDAR-585327.
Location: HIGH
COURT OF
KARNATAKA 2. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF WAQF,
DARUL AUQAF, 6TH CUNNINGHAM ROAD,
BENGALURU-560052.
...RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR R1;
SRI P.S. MALIPATIL, ADVOCATE FOR R2 (VC))
THIS CRP IS FILED UNDER SECTION 83(9) OF KARNATAKA
WAQF ACT, PRAYING TO A) ALLOW THE REVISION PETITION AND
SET ASIDE THE IMPUGNED ORDER DATED 07.10.2023 PASSED BY
-2-
NC: 2024:KHC-K:8208
CRP No. 200005 of 2024
THE KARNATAKA WAQF TRIBUNAL KALABURAGI DIVISION,
KALABURAGI ON IA NO.III IN O.S NO.14/2022 AND TO REMAND THE
MATTER TO THE WAQF TRIBUNAL KALABURAGI TO DECIDE THE
CASE ON MERITS AFTER FULL FLEDGED TRIAL. B) TO PASS ANY
OTHER ORDER WHICH THIS HON'BLE COURT MAY BE DEEMED FIT,
ON THE FACTS AND CIRCUMSTANCES OF CASE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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.14/2022 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.1
under Order 7 Rule 11(d) of CPC rejected the plaint.
2. The above suit is filed by the petitioner/plaintiff
seeking following reliefs:
a) Declaration be made that the plaintiff is the
hereditary Mutawalli of Darga Hazarat
Zinde Shah Madar (Sunni), village Kohinoor
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Pahad U/V Kohinoor, Tq.Basavakalyan,
Dist.Bidar.
b) An order of perpetual injunction be passed
against the defendant No.1 restraining him
from his illegal interference and obstruction
into the lawful performance of the duties of
plaintiff as a Mutawalli of Darga Hazarat
Zinda Shah Madar Kohinoor Pahad, U/V
Kohinoor, Tq.Basavakalyan, Dist. Bidar.
c) Declaration be made that the impugned
judgment and decree passed by Presiding
Officer of Karnataka Waqf Tribunal,
Kalaburagi Division in O.S.No.06/2014
dated 18.07.2016 as null, void and not
binding and may kindly be set aside.
d) Relief of mandatory injunction be granted
directing the D2 and appoint the plaintiff as
a hereditary Mutawalli of said Dargah.
e) The cost of the suit be awarded to the
plaintiff from the person and property of
the defendant.
f) Any other suitable relief to which the
plaintiff is entitled to also may be granted.
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3. Defendant No.1 filed an application under Order
7 Rule 11(d) of CPC seeking rejection of plaint. The
objections to I.A. has been filed by the petitioner/plaintiff.
4. The Tribunal framed the following points for its
consideration:
1) Whether I.A.No.3 under Order VII Rule
11(A & D) of CPC filed by the defendant
No.1 deserves to be allowed?
2) What order?
and by the impugned order allowed the application by
rejecting the plaint.
5. The learned counsel for the petitioner/plaintiff
reiterating the grounds urged in the memorandum of
petition submitted that the Tribunal has adjudicated the
merits of the case while dealing with an application for
rejection of plaint which is impermissible. He submits that
the Tribunal has erroneously come to the conclusion that
the plaint does not disclose the exact date and time of
occurring the cause of action and date of plaintiff learning
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about decree passed in O.S.No.6/2014. The Tribunal has
also observed that the father of the plaintiff, though
passed away 22.08.2013, the plaintiff has not taken any
action till filing of the suit. As such, the cause of action
shown is an imaginary cause of action. Further, the
Tribunal has held that present suit is hit by provisions of
Order II Rule 2 without there being any justification. That
the Tribunal has further held the contention of plaintiff not
being party to suit in O.S.No.6/2014 cannot be a ground
to file the present suit and that instead of preferring an
appeal, he has filed an present suit which is not
maintainable under Section 83 of the Waqf Act, 1995.
Accordingly, proceeded to reject the plaint.
6. Per contra, learned counsel for the
respondent/defendant No.1 fairly submits that an
opportunity to try the suit on merits be provided.
7. Heard and perused the records.
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8. Perusal of the impugned order would reveal that
the Tribunal has merely referring to portions of paragraph
Nos.5 and 6 of the plaint and at paragraph No.13 of the
impugned order has observed that the plaintiff is not at all
stated the exact date and time of occurring of the cause of
action to file the present suit. At paragraph No.14 of the
impugned order the Tribunal has observed that though the
father of the plaintiff passed away on 22.08.2013, the
plaintiff has not taken any action till filing of the suit and
has thus held that the cause of action shown is an
imaginary cause of action. Clearly, the Tribunal has not
adverted to all the averments made in the plaint and has
selectively referred the portion of the plaint.
9. Further, the Tribunal at paragraph No.26 of the
impugned order has held that present suit is hit by
provisions of Order II Rule 2 of CPC. The reasoning in this
paragraph is clearly without any basis and without any
reference to any averments made in the plaint. In any
NC: 2024:KHC-K:8208
event, such a ground is not available for rejection of plaint
under Order VII Rule 11 of CPC.
10. The reliefs sought in the suit are for declaration
of plaintiff to be the hereditary mutavalli and for
consequential relief of permanent injunction. There are
averments made in the plaint supplementing and justifying
the claim for the said relief and the Tribunal has not
adverted to the same. Further relief of declaration is also
sought from the judgment and decree passed in
O.S.No.6/2014, as not binding on the plaintiff. The
Tribunal has observed that the contention of plaintiff not
being a party to suit in O.S.No.6/2014 cannot be a ground
to file the present suit and that instead of preferring an
appeal, he has filed an present suit which is not
maintainable under Section 83 of the Waqf Act, 1995.
Accordingly, proceeded to reject the plaint.
11. It is settled principles of law that the inquiry
under Order 7 Rule 11 (a) of CPC is only to find out
whether the facts pleaded disclose some cause of action,
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requiring adjudication. From the reasoning assigned in the
impugned order as noted hereinabove, it is clear that the
impugned order has been passed contrary to the principles
of law applicable for the purpose of determination of
application filed under Order 7 Rule 11 of CPC for rejection
of plaint. The Tribunal has strayed beyond the plaint
averments and the documents enclosed therewith.
12. For the aforesaid reasons, I pass the following:
ORDER
(i) The petition is allowed and the matter is
remitted back to the Tribunal to adjudicate
the suit strictly in accordance with law.
(ii) The impugned order is set aside.
(iii) The parties shall appear before the Tribunal
on 05.12.2024 without any further notice.
(iv) 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.
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(v) The Registry is directed to send back the
Records to the Tribunal.
In view of disposal of main matter, pending IAs, if
any, do not survive for consideration and same shall be
disposed of.
Sd/-
(M.G.S.KAMAL)
JUDGE
SDU
CT:PK
