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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Sreenivas Harish Kumar, J.
The Institute of the Ursuline Franciscan congregation, Hunsur Branch, St. Joseph’s Educational Institutions – Petitioner
Versus
The Chief Executive Officer, Karnataka State Board of Wakf and ors. – Respondents
Civil Revision Petition No.275 OF 2016
Decided On : 21-05-2020
Wakf Act - Section 89 – Civil Procedure Code - Order XXIII - Rule 1 (3) - Permanent injunction – Claim of compensation - Petitioner is plaintiff in suit - It is an education institution - Its institutions are situated in land measuring approximately nine acres - This property is described in schedule A to plaint - There exists a road marked with letters QRDCQ in sketch providing access to institution from main road - It has been making use of said road without any hindrance - Defendants caused obstruction to making use of this road by erecting pillars and fixing a gate – Therefore petitioner brought suit seeking relief’s of declaration that it has got easement of prescription over said road mandatory injunction to defendants for removing obstacles and permanent injunction to restrain defendants from putting up any obstruction on road - Defendants filed written statement denied case of petitioner and contended specifically that suit was not maintainable as notice under section 89 of Wakf Act was not issued before institution of suit – Held, It is true that as has been held by Hon’ble Supreme Court in above decisions application for withdrawal of suit with liberty to file fresh suit should not be granted if such permission destroys decree and rights accrued in favor of a party by virtue of decree cannot be nullified - Appellate court or court exercising provisional powers should find a strong reason for granting application and merely coming to conclusion that a formal defect is made out cannot be a reason for allowing application - As has been held by te Supreme Court in case of supra discretion must be exercised with caution and circumspection - So what can be made out from ratio laid down in three decisions is that power of court to allow application under Order 23 Rule 1 (3) CPC is not totally taken away merely because one party to suit is benefited by decree but before exercising power court must be very careful and apply its mind - Appellants in said judgment were purchasers from plaintiff in whose favor there was a decree of declaration of title - After selling property to appellants if he entered into compromise with defendants at appellate stage appellants had a real grouse to object to that application as they being successors in interest of plaintiff had been benefited by decree - In case on hand petitioner being plaintiff in suit wants to enforce easement of prescription over road as according to it has been using said road without any hindrance and thereby it could enforce right of easement by prescription - It is clear from judgment of Wakf Tribunal that it has not decided issue of easement by prescription rather it has proceeded to decide whole case thinking that petitioner is claiming right of easement by necessity which is altogether a different concept - Having found that there exists another road tribunal non-suited petitioner - This is one of reasons for dismissing suit - Therefore it is clear that Wakf Tribunal has not decided actual issue before it and in this view if revision petition is decided on merits obviously it deserves to be allowed and matter remanded to Tribunal for decision afresh - In that event respondent being defendant should necessarily appear before tribunal and defend its case once again - Therefore non-application of mind by tribunal can be considered to be a sufficient ground for allowing application - Another reason for dismissing suit is non-issuance of notice as required under Section 89 of Wakf Act - As rightly argued by notice of this nature is issued for drawing attention of Wakf Board for addressing grievance of plaintiff so that institution of suit can be avoided - Non-issuance of notice according to court is a defect formal in nature which can be rectified by issuing notice once again - An analogy from section 80 of CPC can be drawn - Subsection (2) of section 80 CPC states that to obtain an urgent or immediate relief against Government suit can be filed without issuing notice but by obtaining permission from court - If court finds no urgency it can return plaint to plaintiff for presentation after issuing notice - That means to say court can itself direct plaintiff to issue notice and then reinstitute suit - In same way plaintiff is not precluded from withdrawing suit if he notices defect of non-issuance of notice for purpose of instituting a new suit after curing defect - In this case also if no notice was issued by petitioner under section 89 of Wakf Act he can be permitted to withdraw suit to comply with said provision – Petitioner is allowed
ORDER :
This application is filed by the petitioner under Order XXIII Rule 1 (3) of CPC. The petitioner has prayed for permitting it to withdraw its suit O.S.1/2012 on the file of the Wakf Board, Mysuru. If brief background is given, it is as follows :
2. The petitioner is the plaintiff in the suit. It is an education institution at Hunsur. Its institutions are situated in the land bearing Sy. Nos. 23 and 24 measuring approximately 9 acres. This property is described in schedule ‘A’ to the plaint. There exists a road marked with letters ‘QRDCQ’ in the sketch providing access to the institution from the main road. The case of the petitioner is that since the year 1957, it has been making use of the said road without any hindrance. The defendants caused obstruction to making use of this road by erecting pillars and fixing a gate. Therefore, the petitioner brought the suit seeking the relief’s of declaration that it has got easement of prescription over the said road, mandatory injunction to the defendants for removing the obstacles and permanent injunction to restrain the defendants from putting up any obstruction on the road. The defendants filed written statement, denied the case of the petitioner and contended specifically that the suit was not maintainable as notice under section 89 of the Wakf Act was not issued before institution of the suit.
3. The Wakf Tribunal recorded the evidence of the witnesses and dismissed the suit. One of the reasons for dismissal of the suit was non-issuance of notice as required under section 89 of the Wakf Act. Challenging the order of dismissal of the suit, the petitioner preferred the revision petition in which the present application under consideration has been filed.
4. I have heard the arguments of Sri T.N.Raghupathy, learned counsel for the petitioner and Smt. S.R.Anuradha, learned counsel for the respondents.
5. Sri T.N.Raghupathy firstly submitted that he would not press identical application I.A.1/2016. Accordingly the said application was dismissed. So far as I.A.2/2017 is concerned, it is his argument that the main ground for dismissal of the suit was non-issuance of notice under section 89 of the Wakf Act. It is true that the petitioner did not issue notice. This was a formal defect which can be rectified. He has argued that issuance of notice under section 89 of the Wakf Act, just like issuance of notice under section 80 of the CPC, is with a view to drawing the attention of the Wakf Board for addressing the grievance of the plaintiff in order to avoid institution of the suit. Actually question of maintainability of suit does not arise; issuance of notice is only a statutory requirement which can be rectified at any stage and therefore in the present revision petition, the application made by the petitioner can be granted so that the petitioner will institute a new suit by issuing a notice to the defendants, The interest of the defendants will not be affected in any way. He has referred to Order 23 Rule 1 (3) to substantiate his argument that whenever formal defect is made out, the plaintiff can withdraw the suit any time and with the leave of the court, a fresh suit can be instituted for the same cause of action. He also argued that even for any other reason, suit can be permitted to be withdrawn.
6. Smt. S.R.Anuradha countered this argument by arguing that the Wakf Tribunal dismissed the suit not only for the reason that notice was not issued, but also for the reason that the petitioner failed to prove its easementary right over the defendant’s property. The judgment of the Wakf Tribunal clearly indicates findings on all the issues as required under Order 14 Rule 2 of CPC. With the dismissal of the suit, a right accrued in favour of the defendants; and if permission to withdraw the suit is given now, it only results in destroying that right. She referred to three judgments of the Supreme Court, namely (i) R.RATHINAVEL CHETTIAR AND ANOTHER vs V.IVARAMAN AND OTHERS [(1999) 4 SCC 89]; (
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