Mumtaz Yarud Dowla Wakf vs Mohd.Rafeeuddin
2021 Latest Caselaw 4435 Tel

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   C.R.P.No.6923 OF 2017

ORDER:

This revision petition is filed under Article 227 of the

Constitution of India challenging the order dated 15.09.2017

in I.A.No.139 of 2017 in O.S.No.800 of 2016 (Old O.S.No.24 of

2016) passed by the Telangana State Waqf Tribunal (for short

'the Tribunal') dismissing the petition filed under Order VII

Rule 11(a) and (d) read with Section 151 C.P.C.

2. The petitioners are defendant 2, 3, 5, 8 to 11, 13, 14

and 15 and they filed an application to reject plaint in

O.S.No.24 of 2016 on the sole ground that the

respondents/plaintiffs are not interested persons within the

definition under Section 3(k) of the Wakf Act, 1995 and that

Mumtaz Yaruddowla Wakf is only an educational institution

and not Mosque or any other religious trust, to perform

prayers etc. by any person. Therefore, the plaintiffs are not

interested persons within the definition of Section 3(k) of the

Wakf Act and thereby there was no cause of action to file the

suit and that it is barred by Section 83(2) of the Wakf Act,

1995.

3. Respondents 1 and 2 filed counter denying material

allegations inter alia contending that the petition is filed to

circumvent the law and to avoid filing written statement in

the main suit and that the petitioners did not state any

specific provision of law barring the maintainability of the suit

and that the assertions made in the petition that the

petitioner did not fall within the ambit of Section 83(2) of the

Wakf Act is not correct and respondents 1 and 2/plaintiffs

would fall within the definition of Section 3(k) of the Act and

the suit is maintainable in accordance with law. It is further

contended that according to Order VII Rule 11 C.P.C., plaint

can be rejected, when it does not disclose cause of action,

where the relief claimed is under valued, and the plaintiff, on

being required by the Court to correct the valuation within a

time to be fixed by the Court, fails to do so, where the relief

claimed is properly valued, but the plaint is returned upon

paper insufficiently stamped, and the plaintiff, on being

required by the Court to supply the requisite stamp paper

within a time to be fixed by the Court, fails to do so,, where

the suit appears from the statement in the plaint to be barred

by any law, where it is not filed in duplicate, where the

plaintiff fails to comply sub-rule (2) of Rule 9, where the

plaintiff fails to comply sub-rule (3) of Rule 9 and prayed to

dismiss the petition.

4. Respondent No.13 filed counter. Respondents 8, 11,

12 and 14 adopted the counter filed by respondent No.13.

They also denied the allegations made in the petition while

asserting that they are baseless. It is specifically contended

that Mahboob Alam Khan has no locus standi to file petition

and the petition is liable to be dismissed and that as per

resolution dated 04.11.2013, respondent No.8 got appointed

as President of Mumtaz Yarud Dowla Wakf, Mirza Khusru Ali

Baig was appointed as Secretary and Respondent No.13 as

member of the Muntaz Yarud Dowla Wakf along with other

members of the Majlis-e-Umna of Muntaz Yarud Dowla Wakf

and the same was recorded in Wakf Board by its proceedings

dated 27.11.2013 and confirmed by this Court in

W.P.No.38308 of 2013 and W.A.No.213 of 2014. Mahboob

Alam Khan challenged the said resolution and proceedings

before the Tribunal in O.A.No.64 of 2013, which is pending

for adjudication. Finally asserted that a crime was registered

in Crime No.92 of 2014 and the same is pending for

investigation and prayed for dismissal of the petition.

5. Upon hearing argument of both counsel concluded

that the plaint does not disclose cause of action and that it is

not barred by any law to attract Clauses (a) or (d) of Order VII

Rule 11.

6. Aggrieved by the impugned order, the present revision

petition is filed under Article 227 of the Constitution of India

raising various contentions mainly on the ground that Section

83(2) of the Act envisages any mutahwalli, person interested

in a Wakf or any other person aggrieved by an order, subject

to satisfying the Tribunal that he is a person interested in

wakf as defined under Section 3(k) of the Wakf Act and apart

from that Muntaz Yarud Dowla Wakf is a wakf, but not

allowing to offer prayers since it is purely an educational

institution. Thereby, respondents 1 and 2/plaintiffs has no

locustandi to file the proceedings before the Tribunal and

prayed to set aside the order allowing I.A.No.139 of 2017 in

O.S.No.800 of 2016 and reject the plaint exercising power

under Order VII Rule 11(a) and (b) C.P.C.

7. During hearing, learned counsel for the petitioners

contended that respondents 1 and 2/plaintiffs have no

locustandi to file suit since they are not aggrieved or persons

interested in wakf under Section 3(k) of the Wakf Act and no

cause of action arose and cannot claim any right in the suit.

But the Court below did not consider the definition of person

interested in wakf under Section 3(k) of the Act in proper

perspective and committed an error, when there is a clear bar

under Section 83(2) of the Wakf Act, the suit itself is not

maintainable and prayed to set aside the impugned order

allowing I.A and reject the plaint at the threshold.

8. Learned counsel for the respondents supported the

impugned order while contending that respondents 1 and

2/plaintiffs fall within the persons aggrieved under Section

3(k) of the Wakf Act. Therefore, the suit can be maintained as

interested and aggrieved persons and demonstrated that the

definition is person interested inwakf under Section 3(k) of

the Wakf Act is inclusive definition and it embarrass every

person, who is interested in wakf and thereby, the suit is

maintainable and prayed to dismiss the revision petition,

confirming the impugned order.

9. In view of rival contentions, the point that arises for

consideration is :

Whether the respondents are persons interested in the wakf and if not, are they entitled to file suit against the petitioners, despite bar under Section 83(2) of the Wakf Act?

POINT:

10. The subject matter of the wakf is purely educational

institution and the plaintiffs were erstwhile students studied

in the year 1982 and they are not no way connected with the

affairs of the educational institution as wakf, as on today.

The plaintiffs are claiming that they are persons interested in

wakf and filed the suit invoking Section 83(2) of the Wakf Act.

11. The first two sentences of the plaint in para 1 are

sufficient to conclude that the plaintiffs were students of

Mumtaz group of educational institutions run under the ages

of M/s Mumtaz Yarud Dowla Trust created by Janab Mumtaz

Yar-Ud-Dowla by a Wakf Deed dated 03.02.1334 Fasli and

the plaintiffs were students from 1978 to 1982 of M/s

Mumtaz College from Intermediate till completion of

B.Sc.(Geology). The plaintiff was the Secretary of students

union for the term 1980-81 and cultural Secretary of

students union for the term 1981-82 and though the

plaintiffs left the educational institution they are still showing

interest in the affairs of the educational institutions and

recently learnt about the various irregularities and illegalities

including misappropriation of funds by the defendants in

collusion with each other, acting contrary to the terms and

conditions of the Wakf Deed, letter and spirit of the Wakf and

continuously seeing the down fall of standards of the

education, intentional abandonment of services by eminent

staff, fall of admissions in the school, colleges and total

mismanagement, both financially and administratively in the

Engineering College etc. It is clear from the allegations made

in para 1 of the plaint that they were students of Mumtaz

Group of Institutions for a period of four years, prosecuted

intermediate and completed B.Sc.(zeology) in the college.

Therefore, taking advantage that they studied in the college,

they filed suit as persons interested in the affairs of the wakf.

12. According to Section 83 (2) of the Wakf Act any

Muthawalli, person interested in a Wakf or any other person

aggrieved by an order made under this Act or rules made

thereunder, may make an application within the time

specified in the Act or where no such time has been specified,

within such time as may be prescribed, to the Tribunal for the

determination of any dispute, question of other matter

relating to the Wakf. Thus, it means muthawalli or a person

interested in the wakf or any other person aggrieved is

competent to file suit or proceedings.

13. Respondents 1 and 2/plaintiffs are not Muthawalli of

the wakf, but they are claiming that they are persons

interested. The person interested in wakf is defined under

Section 3(k) of the Wakf Act. The person interested in a wakf

means any person, who is entitled to receive any pecuniary or

other benefit from the wakf and includes, any person who has

a right to (offer prayer) or to perform any religious rite in a

mosque, idgah, imambara, dargah, (khanqah, peerkhana and

karbala), Maqbara, graveyard or any other religious

institution connected with the wakf or to participate in any

religious or charitable institution under the wakf, the wakif

and any descendant of the waqif and the muthawalli.

14. Admittedly, Muntaz Yarud Dowla Wakf is a purely

educational institution and the question of worship and

perform any religious rite does not arise and it must be only a

mosque as mentioned in Section 3(k) of the Wakf Act.

15. Therefore, respondents 1 and 2 are plaintiffs in the

suit in question that they are not persons interested in the

Wakf, though they were students for some time and that they

did not explain their interest in the affairs of the wakf except

making allegations in the plaint. Even otherwise, the

plaintiffs are not entitled to receive any benefits from the wakf

i.e. educational institution. In such a case, respondents 1

and 2 would not fall within the definition person interested in

wakf as per Section 3(k) of the Wakf Act. It is not a disputed

fact that the plaintiffs are not Muthawallis of wakf nor

descendents of Muthawalli under clause (2) of Section 3(k) of

the Wakf Act. When the plaintiffs did not fall under definition

of persons interest in wakf, they are not entitled to prosecute

the proceedings in view of bar under sub-section 2 of Section

83 of the Wakf Act. Therefore, mere claiming interest in the

wakf by making bald allegations in the plaint is not suffice to

prosecute the proceedings against the wakf by filing suit

invoking Section 83(2) of the Wakf Act. When the plaintiffs

are not persons interested as defined under Section 3(k) of

the Wakf Act, the suit itself is not maintainable and no cause

of action to file suit arose and have no right to claim any relief

in the suit, thus, the suit is barred by Section 83(2) of the

Wakf Act.

16. The main contention of learned counsel for the

petitioners is that when the plaint is drafted to create cause of

action that by itself is not sufficient to allow the parties to

prosecute the proceedings, since the parties cannot be driven

to under go the trauma of facing trial. Learned counsel for

the petitioners placed reliance in T.Arivandandam v

T.V.Satyapal and another1 , wherein the Apex Court held as

follows:

"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the

AIR 1977 SC 2421

statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful- not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage."

17. The principle annunciated in the judgment that the

duty is caste upon the Court to examine the allegations made

in the entire plaint and clever drafting creating illusions of

cause of action are not permitted in law or bar of any law to

maintain such suit and a clear right to sue should be shown

in the plaint. Otherwise, the Court can reject the plaint at

the threshold itself by exercising power under Order VII Rule

11 C.P.C.

18. A similar view was expressed by this Court in Ashrith

Realtors and Developers and another v Capt. Arun

Prasad2, that when the plaintiff has no cause of action

against the defendants to get the suit reliefs for the specific

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performance of the alleged oral contract for sale more

particularly for the fact that the plaint nowhere specifically

asserted as to how the defendants got right and title over the

plaint schedule property. The very wording of Order VII Rule

11 clause (a) speaks that where it does not disclose a cause of

action. Once the law clearly says plaint averments are

decisive and from the plaint averments it discloses whether it

is a real disclosure or pretended disclosure is premature for

the Court to go into though otherwise a stale claim can be

rejected instead of allowing to put the ordeal of facing trial by

the other side. Once the law on its scope is limited, if it is a

false claim, the remedy of the defendant for the ordeal is to

claim any compensatory costs or otherwise by invoking

Sections 34 and 35(a) C.P.C. Order XIV Rule 2 clause (2)(b)

C.P.C., requires to be determined as a preliminary issue as to

there is a real cause of action in existence and the suit claim

is barred by Section 13 and 17 of the Specific Relief Act.

Issues if not framed, the trial Court shall hear and frame the

issues, if necessary, one of the issues as a preliminary issue

in considering the examination in chief of plaintiffs.

19. The view taken by this Court is somewhat different, but

such principle is not applicable to the present facts since

Tribunal recorded a finding that a suit is maintainable as a

person interested in wakf. In another judgment of this Court

in Jinendra Jewellers, rep.by its Proprietor Kushal Raj,

Vijayawada v B.Venkateswara Rao and another3 held that

the power of the Court to reject a plaint cannot be doubt and

the parameters are well set out in Order VII, Rule 11 C.P.C.

20. In view of law declared by this Court and the Apex

Court, it is clear that respondents 1 and 2/plaintiffs are not

persons interested in wakf though they were studied for some

time in Mumtaz Group of Institutions and thereby the suit

cannot be maintained by them in view of the bar contained in

sub-section 2 of Section 83 of the Wakf Act.

21. The Court below though considered did not decide the

real controversy while confining to the factors mentioned in

cause of action para that the plaint discloses cause of action,

hence, the plaint cannot be rejected at the threshold and

whether the plaintiff is entitled to claim or not is a question to

be decided at the end of trial, but this reason is not correct in

view of law declared by the Apex Court in T.Arivandandam's

case referred supra. Therefore, the Court below did commit

an error in exercise discretion under Order VII Rule 11 C.P.C.

negating the relief claimed under Order VII Rule 11 C.P.C.

22. On perusal of entire material on record and Section 3(k)

and 83(2) of the Wakf Act, made it clear that unless the

person, who filed the suit is a person interested in wakf as

defined under Section 3(k) of the Wakf Act, Muthawalli or a

descendent of Muthwalli vide clause (2) of Section 83 alone

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are entitled to question the actions of the wakf. But here,

respondents 1 and 2/plaintiffs are not persons interested,

thereby, the suit itself is not maintainable and there was no

cause of action to claim relief against the defendants. As

such the plaint is liable to be rejected by exercising power

under Order VII Rule 11 (a) and (d) C.P.C.

23. Accordingly, the civil revision petition is allowed setting

aside the order dated 15.09.2017 in I.A.No.139 of 2017 in

O.S.No.800 of 2016 (Old O.S.No.24 of 2016) passed by the

Telangana State Waqf Tribunal and the plaint is rejected.

Miscellaneous petitions, if any, pending in this petition

shall stand closed.

__________________________________ M. SATYANARAYANA MURTHY,J 26.02.2018 kvrm