The main legal point established is that a suit can be dismissed due to non-joinder of a necessary party, and the court's decision is influenced by the legal principles from the Supreme Court's judgment in Rame Gowda (Dead) by LRs. vs. M. Varadappa Naidu (Dead) by LRs. and Another (2004) 1 SCC 769.

VALMIKI J. MEHTA, J. (ORAL)

I.A. No.17653/2015 (exemption)

1. Exemption allowed subject to just exceptions.

I.A. stands disposed of.

CS(OS) No.2537/2015 and I.A. No.17654/2015 (stay)

2. This is a suit filed by the plaintiff/Mr. Abdul Rashid, claiming himself to be a Mutawali, seeking the relief of permanent injunction effectively by which plaintiff wants that it should he held that he is in possession of the suit property being Dargah/Mazar Biwi Fatima, Kaka Nagar, New Delhi-110003 and that the sole defendant/Delhi Waqf Board be restrained from interfering with the possession of the plaintiff.

3. The suit is predicated on the averments that injunction should be granted because plaintiff is in possession of the suit property which is a Dargah/Mazar. The case of the plaintiff as per the plaint is that the plaintiff is in open and settled possession for the past 60 years and which is so stated in para 17 of the plaint. Plaintiff claims that plaintiff’s possession is being threatened by the sole defendant/Delhi Waqf Board and therefore plaintiff is entitled to injunction against the Delhi Waqf Board from dis-possessing the plaintiff.

4. At the time of arguments, counsel for the plaintiff did not press the issue that plaintiff is in possession for 60 years but argued that since the plaintiff is in settled possession at least from the year 2007, plaintiff’s possession be protected by the relief of injunction which is prayed in the suit and the interim application.

5. On behalf of the plaintiff, reliance is placed upon the following to seek the relief of injunction and issuing of summons in the suit and for ex parte interim orders:-

(i) The property in question appears in the letter attached to the Notice of the Government of India dated 27.3.1984 at serial no.56 whereby the title in this property was to vest with the government, but, the government was to create a lease of the property in favour of the defendant.

(ii) Order dated 12.1.2011 passed by the Division Bench of this Court disposing of W.P.(C) No.1512/1984.

(iii) Order dated 20.8.2014 of a Division Bench of this Court disposing of W.P.(C) No.2901/2014.

(iv) Documents which are filed from running page 105 of the paper book till page 141 that plaintiff is in settled possession of the property in question since 2007.

In addition to the aforesaid factual aspects, reliance is placed upon the judgment of the Supreme Court in the case of Rame Gowda (Dead) by LRs. Vs. M. Varadappa Naidu (Dead) by LRs. and Another (2004) 1 SCC 769.

6. In my opinion, the suit is a clear cut abuse of the process of the law and the plaintiff cannot be said to be in settled possession, but which aspect I am not observing finally, because the suit is in fact liable to and is being dismissed on account of non-joinder of the necessary party being Union of India and as required by Order I Rule 9 of the Code of Civil Procedure, 1908 (CPC) which states that in the absence of a necessary party the suit is not maintainable. Counsel for the plaintiff states that Union of India is not a necessary party because plaintiff only has disputes with the defendant i.e the Delhi Waqf Board and which is seeking to dispossess the plaintiff and the suit lies without Union of India being a defendant and thus Union of India is not liable to be made a defendant in the present suit.

7. In my opinion, before the suit is maintainable not only by showing plaintiff in settled possession, plaintiff will also have to show that the possession of the suit property was in fact given by the government to the Delhi Waqf Board and thus the plaintiff has a claim to possession as a Matawali. Also, the Union of India being interested on the issue of possession of the suit property, the following aspects are relevant in this regard:-

(i) The Notice of the Government of India dated 27.3.1984 relied upon by the plaintiff itself states in so many terms that a lease will be executed in favour of the Delhi Waqf Board, but, no lease execut