Pending suits and appeals are exempt from the jurisdictional limitations of the Wakf Act, 1995, as established by the court's interpretation of Sections 7(5) and 85.

ORDER

1. Instant appeal has been preferred on behalf of the appellants against the impugned order dated 27.10.2009 passed by the Court of learned Additional District Judge, No.2, Bharatpur, (hereinafter to be referred as the "appellate Court"), whereby application under Order 7 Rule 10 of C.P.C. filed by the respondent-Board had been allowed and the appeal of the appellants had been returned back to file the same before the competent Court.

2. Facts of the case, in brief, are that the respondent-Board filed a petition before the Estate Officer under the Rajasthan Public Premises (Eviction of unauthorized Occupants) Act, 1964 seeking eviction of the alleged wakf property stating therein that the appellants are in unauthorized occupants thereupon. The aforesaid proceedings were admittedly filed in 1992. The Estate Officer vide its order dated 24.02.2001 allowed the petition of the Board and ordered to vacate the premises and further handover the possession of the same to the Board with a further direction to make payment of rent from 1981 to 1986 @ Rs.1000/- per month and further mesne-profit for the use and occupation @ Rs.1000/- per month till delivery of the possession. Against the aforesaid order of the Estate Officer, an appeal under Section 9 of the Act of 1964 was filed by the appellants before the competent Court of District Judge, which was transferred to A.DJ. No.2, Bharatpur for hearing. On appearance, the Board filed an application under Order 7 Rule 10 of C.P.C. The appellants filed reply to the aforesaid application on 30.07.2009. The appellate Court had allowed the application filed by the respondent-Board and returned the appeal to file the same before the competent Court. Hence, this miscellaneous appeal.

3. During the course of arguments, learned counsel appearing for the appellants, has submitted that the provisions of Order 7 Rule 10 of C.P.C. are not applicable at appellate stage and that too in an appeal under Section 9 of the Act, 1964 and not arose out of civil suit. The impugned order (Annexure-4) is illegal and contrary to the provisions of Section 7 (5) of the Wakf Act, 1995 and also in disobedience of the order of the Hon'ble Supreme Court in Sardar Khan & Others Vs. Syed Najmul Hasan (Seth) & Others, reported as 2007 D.N.J. (S.C.) 434 and also against the Circular of this Court dated 02.09.1997, hence, the appeal of the appellants be allowed. Learned counsel appearing for the appellants has also placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Rajender Bansal and others Vs. Bhuru (Dead) through Legal representatives and Others, reported as (2017) 4 S.C.C. 202.

4. Learned counsel appearing for the respondent-Board has opposed the appeal and submitted that the impugned order passed by the learned appellate Court be upheld.

5. Heard learned counsel appearing for the parties and perused the impugned judgment and the material available on record.

6. Section 85 of the Wakf Act, 1995 reads as under :-

"85. Bar of jurisdiction of Civil Courts.- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal."

7. Hon'ble Supreme Court in the case of Sardar Khan & Others (Supra) observed as under :-

"13. Now coming to the facts of the present case, it is an admitted fact that suit was filed on 19.12.1976 before Addl. District Judge, Jaipur and arguments were heard and judgment was reserved on 16.12.1995 and the judgment was delivered on 23.01.1996 against which the appeal was filed before the High Court on 1.3.1996. Therefore, from these facts it is clear that the suit was pending since 19.12.1976, i.e., prior to the commencement of the Act, i.e., 1.1.1996. Therefore, by virtue of sub-section (5) of Section 7, the Tribunal will have no jurisdiction to decide the suit or the appeal arising from that suit. In the present cas