The State Of Madhya Pradesh vs Mohd. Nabi Ulla
2023 Latest Caselaw 10267 MP

            IN THE HIGH COURT OF MADHYA PRADESH
                         AT JABALPUR
                           BEFORE
        HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                  ON THE 6th OF JULY, 2023

                 CIVIL REVISION No.168 of 2020

Between:-

1.    STATE OF M.P., THROUGH COLLECTOR, REWA
      DISTRICT REWA (MADHYA PRADESH)

2.    SUB DIVISIONAL OFFICER, TEHSIL HUZUR
      DISTRICT REWA (MADHYA PRADESH)

3.    TEHSILDAR, TEHSIL HUZUR DISTRICT REWA
      (MADHYA PRADESH)

4.    SUPERINTENDENT OF POLICE, SPECIAL
      POLICE   ESTABLISHMENT     (LOKAYUKT),
      REWA DIVISION, REWA (MADHYA PRADESH)
                                                  .....APPLICANTS

      (BY SHRI NAVEEN DUBEY, ADVOCATE FOR APPLICANTS/STATE)

AND

1.    MOHAMMAD NABI ULLAH KHAN S/O NASRAT
      ULLAH, AGED ABOUT 50 YEARS, R/O NEAR
      LABOUR WELFARE CENTRE, WARD NO.35,
      GHOGHAR, REWA, M.P. EX CHAIRMAN WAQF
      MANAGING COMMITTEE, WAQF CHHOTI
      DARGAH, REWA

2.    M.P. WAQF BOARD THROUGH ITS CHIEF
      EXECUTIVE OFFICER TAJ CAMPUS NEAR
      TAJUL MASJID BHOPAL (MADHYA PRADESH)

3.    NAGAR PALIKA NIGAM, THROUGH ITS
      COMMISSIONER, DISTRICT REWA (MADHYA
      PRADESH)
                                                 .....RESPONDENTS

      (BY SHRI TAKMEEL NASIR, ADVOCATE FOR RESPONDENT 1)
      (BY SHRI KAPIL DUGGAL, ADVOCATE FOR RESPONDENTS 2)
      (BY SHRI DILEEP PANDEY, ADVOCATE FOR RESPONDENT 3)
 _____________________________________________________________
      This revision coming on for hearing this day, the court passed the
following:
                                ORDER

This civil revision under Section 83(9) of the Waqf Act, 1995 has been preferred by the defendants 2-5/applicants-State challenging the order dated 28/02/2019 passed by M.P. State Waqf Tribuanl, Bhopal in Case No.148/2015 (Mohd. Nabi Ullah Vs. M.P. Waqf Board, Bhopal and others), whereby learned Tribunal has decreed the civil suit after proceeding ex-parte against the applicants/defendants 2-5/State holding that the suit property is waqf property and permanent injunction has also been issued restraining the defendant 5 from raising construction over land Survey No.384/1 area 21520 sq.ft.

2. Learned counsel for the applicants-State submits that although after service of summons, written statement was filed on behalf of the applicants but later on without any intimation to the applicants, the counsel appearing on their behalf did not appear and the learned Tribunal also did not take care of it, whereas if the duly engaged counsel did not appear, it was for the learned Tribunal to issue notice before proceeding ex-parte against the applicants. He further submits that learned Tribunal recorded ex-parte evidence and also heard final arguments on 08/12/2017 and thereafter, even without issuing notice to the applicants-State allowed one application under Order 7 Rule 14 CPC on 30/01/2018 filed by the plaintiff/respondent 1 and also permitted him to adduce additional evidence in support of the new documents even in absence of the applicants, whereas as per decision of this Court in the case of Chairman M.S. Banga Hindustan Lever Limited Vs. M/s. Heera Agencies 2018(1) JLJ 91, fresh notice ought to have been issued to the applicants. With these submissions, learned counsel for the applicants submits that learned Tribunal has committed illegality in passing the impugned order.

3. In reply, learned counsel appearing for the respondent 1/plaintiff submits that the counsel appearing on behalf of the applicants disappeared from the Court, therefore, there was no fault of the learned Tribunal and even if the documents taken on record by way of application under Order 7 Rule 14 CPC, are ignored then also the impugned order deserves to be sustained and by taking the documents on record even after final arguments, no prejudice is caused to the applicants. He further submits that learned Tribunal has passed order after considering the material evidence available on record and has not considered those documents (Exs.P/18 & P/19), therefore, the impugned order is not liable to be interfered with. With these submissions, he prays for dismissal of the civil revision.

4. Learned counsel appearing for the respondent 2 supports the impugned order and adopts the arguments advanced by the counsel for respondent 1. Similarly, learned counsel for respondent 3-Nagar Palik Nigam supports the applicants/State.

5. Heard learned counsel for the parties and perused the record.

6. From perusal of the order sheets of learned Tribunal it is clear that upon service of notice on the applicants/defendants 2-5, the counsel Shri B.U. Khan appeared and also filed written statement on 29/02/2016 but later on he disappeared from the Court w.e.f. 25/11/2016, thereafter, learned Tribunal recorded evidence of the plaintiff in presence of the defendants 1 & 6 and lastly on 08/12/2017 final arguments were heard but on the same date, upon request of the plaintiff, learned Tribunal granted time to the plaintiff for filing certain documents, which were filed by the plaintiff on 23/01/2018 along with application under Order 7 Rule 14 CPC which were taken on record on 30/01/2018 by allowing the plaintiff's application under Order 7 Rule 14 CPC and thereafter recorded additional oral evidence on 13/03/2018 in absence of the applicants/defendants 2-5 and then passed the impugned order in absence of the applicants/defendants 2-5.

7. In view of the aforesaid discussion, it is clear that learned Tribunal has committed procedural illegality in accepting the documents after hearing the final arguments in the original civil suit even without issuing fresh notice to the applicants/defendants 2-5, which in the existing facts and circumstances was necessary.

8. In the case of Chairman M.S. Banga Hindustan Lever Limited Vs. M/s. Heera Agencies 2018(1) JLJ 91, a coordinate Bench of this Court has held as under:

"30. This Court will be failing in its duty if the other judgments cited by Mr. Fakhruddin are not considered. Mr. Fakhruddin, relied on the cases of Indresen Jali, Swaran Kali, Narmada Motors, Parmanand & Ramesh Chandra Jain (Supra). In these cases, the Courts considered the meaning of words "liberal approach". The Courts also held that the litigant even after engaging the counsel cannot be permitted to sleep over his duty. Litigant should be vigilant and contact his counsel in order to gather knowledge regarding progress of litigation. The said principle cannot be applied in the facts and circumstances of the present cases because in the present cases, admittedly, no fresh notices were issued to the present appellants/defendants after filing of applications under Order 6 Rule 17 and Order 7 Rule 14(3) of CPC. As analyzed in catena of judgments, it was held that it is the duty of the trial Court to put the parties to a fresh notice when such amendments were filed. Pertinently, in the said judgments cited by Mr. Fakhruddin this point was absent and, therefore, the said judgments cannot be mechanically pressed into service in the present case. It is apposite to remember the judgment of Apex Court reported in 2011(3)SCC 545, [Parimal vs. Veena alias Bharti], wherein it was held as under:

"To determine the applicant under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its direction in the varied and special circumstances in the case at hand. There cannot be a straijacket formula of universal application."

9. Following the dictum of aforesaid decision in the case of Chairman M.S. Banga (supra), this Court is of the considered opinion that the impugned order which has been passed ex-parte against the applicants, is not sustainable and deserves to be and is hereby set aside and the matter is remanded to the M.P. State Waqf Tribunal, Bhopal for decision of civil suit afresh after giving due opportunity of hearing to the applicants/defendants 2-5 from the stage when they were proceeded ex- parte.

10. As the Tribunal vide its final order dated 28/02/2019 restrained the defendant 5 from raising construction on the land Khasra No.384/1 area 21520 sq.ft., therefore, it is further directed that till the final decision of civil suit by the Tribunal, both the parties shall maintain status-quo in respect of land Khasra No.384/1 area 21520 sq.ft.

11. With the aforesaid observation, this civil revision is allowed and disposed off.

12. Interim application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE RS

RASHMI Digitally signed by RASHMI RONALD VICTOR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

RONALD Pradesh, 2.5.4.20=dcca7715f3f684c24752dbb505e5b 186c02289cadaa753ee20545e7ad1b52d64, pseudonym=625746E87FF4AC3C6DB695A8 AAC47B69FE61026F,

VICTOR serialNumber=9EBC5CA1D2C50306E16173E A7E3552F54DAFD50DD81AA3585D181CA5 8585377A, cn=RASHMI RONALD VICTOR Date: 2023.07.10 10:21:09 +05'30'