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2017 Supreme(AP) 454

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. SEETHARAMA MURTI, J.
Sarwarkhanam and others - Petitioners
Versus
Macca Madina Allauddin Wakf - Respondents
Civil Revision Petition No. 5993 of 2016
Decided On : 11-08-2017

Advocates Appeared:
For the Petitioners: Ms. Sameem Ara Begum
For the Respondent: Sri Syed Naimullah Shakeel

Headnote:

Constitution of India, Article 227 - First respondent/plaintiff-Trust (hereinafter referred to as plaintiff-Trust) brought the suit in O.S. No. 1688 of 2011 against the defendants, including the Revision Petitioners/ defendants, on the file of the learned VII Senior Civil Judge, City Civil Court, Hyderabad, for eviction from the suit schedule shops and for mesne profits and other reliefs. The petitioners/defendants 1, 2, 5, 8 to 13 (hereinafter referred to as defendants) are resisting the suit. While so, the defendants filed the afore-stated interlocutory application under Order VII Rule 11 of the Code of Civil Procedure, 1908, requesting to reject the plaint on the ground that the civil Court has no jurisdiction to entertain and decide the suit on merits. The said application was resisted by the plaintiff-Trust by filing counter. On merits and by the orders impugned in this Revision, the trial Court dismissed the petition of the defendants – Held, Further, from a careful examination of the amended provisions of the Wakf Act it does not appear that the said provisions are retrospective in operation. The learned Counsel for the defendants did not also bring to the notice of the Court any precedent to show that the said provisions are retrospective in operation. It would be pertinent to mention that if a suit or proceeding is already pending in a civil Court before the coming into the force of the amended provisions of the Wakf Act in question, then such suit or proceedings before the Civil Court would continue and the Tribunal would not have any jurisdiction in such matters. Therefore, it can be safely held that the provisions of the Wakf Act dealing with the jurisdictional aspect, which came into force from 01.11.2013, are not attracted to the instant suit. Hence, the contention of the defendants that the civil Court is not having jurisdiction to entertain and dispose of the suit on its merit is untenable, as rightly held by the trial Court – Civil Revision dismissed

ORDER :

This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful defendants 1, 2, 5, 8 to 13/petitioners, is directed against the order, dated 16.09.2016, of the learned VII Senior Civil Judge, City Civil Court, Hyderabad, passed in I.A.No.795 of 2014 in O.S. No. 1688 of 2011.

2. I have heard the submissions of Ms. Sameem Ara Begum, learned counsel appearing for the Revision Petitioners/defendants 1, 2, 5, 8 to 13, and of Sri Syed Naimullah Shakeel, learned counsel for the 1st respondent/plaintiff-Trust. The other respondents, who are the defendants in the suit, are stated to be not necessary parties. I have perused the material record.

3. The facts of the case, which are necessary to be stated as a prelude to this order, in brief, are as follows:-

The first respondent/plaintiff-Trust (hereinafter referred to as plaintiff-Trust) brought the suit in O.S. No. 1688 of 2011 against the defendants, including the Revision Petitioners/ defendants, on the file of the learned VII Senior Civil Judge, City Civil Court, Hyderabad, for eviction from the suit schedule shops and for mesne profits and other reliefs. The petitioners/defendants 1, 2, 5, 8 to 13 (hereinafter referred to as defendants) are resisting the suit. While so, the defendants filed the afore-stated interlocutory application under Order VII Rule 11 of the Code of Civil Procedure, 1908, requesting to reject the plaint on the ground that the civil Court has no jurisdiction to entertain and decide the suit on merits. The said application was resisted by the plaintiff-Trust by filing counter. On merits and by the orders impugned in this Revision, the trial Court dismissed the petition of the defendants. Therefore, the defendants are before this Court.

4. The case of the defendants, in support of the afore-stated request and the submissions made on their behalf, in brief, are as follows:-

The plaintiff-Trust is a registered Wakf. The suit schedule property was originally let out in the year 1948 to one Hussain Zabith and his partners in business. The Wakf Board already initiated proceedings against Habeeb Alladdin, who is presently representing the plaintiff-Trust/Wakf. Several criminal cases were registered against him and they are pending before various Courts. The said Habeeb Alladdin is not a competent person to represent the plaintiff-Trust/Wakf and prosecute the suit. Therefore, the suit filed by him as a representative of the plaintiff-Trust is not maintainable. The management of the plaintiff-Trust has been taken over and the plaintiff-Trust is now under the direct management of the Wakf Board and the suit schedule property is a Wakf property. As per the amended provisions of the Wakf Act, particularly, the provision of Section 85 of the Wakf Act, which came into force with effect from 01.11.2013, a suit for eviction against tenants in occupation of the Wakf property has to be filed before the Wakf Tribunal and the Wakf Tribunal is having exclusive jurisdiction to try such suit for eviction like the present suit, in view of the said amended provision of the Wakf Act, which came into force with effect from 01.11.2013. Therefore, the plaint is liable to be rejected. The learned Judge of the trial Court failed to appreciate the change in the legal position and the ouster of jurisdiction of the civil Courts after the amended provision of the Wakf Act came into force on 01.11.2013. The learned Judge of the trial Court ought to have seen that the person presently representing the plaintiff-Trust is no longer having locus standi to represent the plaintiff-Trust and, therefore, the learned Judge of the trial Court ought to have considered the request of the defendant and ought to have rejected the plaint.

5. The case of the plaintiff-Trust and the submissions made on its behalf, in brief, are as follows:-

The petition filed seeking rejection of the plaint is misconceived. While considering the request for rejection of the plaint, the Court has t



















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