P.V. Kakade. J.––Heard learned counsel for both the parties. Perused the record.

2. This revision is preferred by the petitioner-defendant against the order passed by the trial Court in Special Civil Suit No. 65/99, dismissing the defendant's application Exhibit-8 under Order 7, Rule 11(d) of the Civil Procedure Code, which was filed praying that the suit was liable to be disposed of by virtue of the said provision on the ground that it was barred by special law i.e. The Wakf Act, 1995.

3. The original defendant is the Mutawalli of Madina Masjid situated at Vasco-da-Gama. The plaintiffs filed the suit for declaration, rendition of accounts, removal of Mutawalli and ex parte appointment of Court Receiver. In the said application, it was submitted by the present appellant-defendant that the suit was brought by the plaintiffs in respect of the wakf property of Madina Masjid wherein the plaintiffs prayed for the relief under Section 92(a), (d), and (h) of the Code of Civil Procedure. It was alleged in the plaint that there was breach of a constructive trust of religious nature. The suit was not brought by the Advocate General and therefore, the plaintiffs must obtain leave of the Court to institute the suit. No such leave was obtained by the plaintiffs. Further it was alleged that the principal Civil Court of original jurisdiction was the District Court and the State Government had not issued any notification conferring such jurisdiction in the Civil Court and as such, it was submitted that the plaintiffs' suit was liable to be rejected by virtue of Order 7. Rule 11(d) of the C.P. Code.

4. It is an admitted as well as evident position that the Wakf Act, 1995 was extended and made applicable to the whole of India, including State of Goa, except the State of Jammu and Kashmir. The Central Government has issued Notification dated 27.11.1995, appointing 1.1.1996 as the day on which the Act shall come into force and, accordingly, it has come into force on and from 1st January, 1996. The Wakf Act was already implemented in Goa by due process of law and as a matter thereunder, the Survey Commissioner was duly appointed by the State of Goa for the purpose of making survey and identifying the wakfs existing in the State of Goa and, therefore, consequent establishment of machinery called "wakf board" eventually follows the completion of the said work. Therefore, the Act has de jure and de facto application in the State of Goa. These are the statements made in the plaint itself. However, it was further submitted that due to nonexistence of wakf board, there was no statutory body to ensure accountability of the financial affairs of the said mosque. It was allegedly mismanaged by the present appellant-defendant which gave rise to the suit. The plaintiffs have also challenged the very appointment of the defendant as the Mutawalli as he was appointed by his predecessor who was his father-in-law on 20.5.1994 through a letter on account of his ill-health (not on his death-bed). It is submitted on behalf of the plaintiffs that under Islamic Law, the Mutawalli, for the time being, may appoint a successor on his death-bed, meaning thereby he cannot do so while he is in health or mere ill-health, distinguished from death-bed. On such and other grounds, the appointment of the defendant as Mutawalli came to be challenged along with other allegations such as mismanagement of the wakf property by way of suit for declaration and consequential relief of perpetual injunction as well as seeking the order regarding rendering of accounts etc.

5. In the wake of this plaint, the application under Order 7, Rule 11 (d) of the C.P. Code came to be filed, which was, after hearing both sides, came to be dismissed by the trial Court on the ground that the Civil Court had jurisdiction to entertain and adjudicate the suit in spite of the specific bar under the special Act i.e. Wakf Act, 1995. Hence, the present revision petition.

6. Now the provision of Section 8