The enactment of the Wakf Act does not retrospectively apply to suits and appeals initiated prior to its commencement, maintaining civil jurisdiction over such matters.

ORDER :

N.SENTHILKUMAR, J.

The Civil Revision Petition has been filed by the plaintiffs in O.S.No.1085 of 1985 against the order of dismissal in I.A.No.905 of 2014 in A.S.No.206 of 2011, dated 03.09.2019, on the file of the Principal Subordinate Court, Tiruchirappalli.

2.The petitioners are the plaintiffs in O.S.No.1085 of 1985 on the file of the District Munsif Court, Tiruchirappalli. The suit was filed for declaration and permanent injunction. The said suit was dismissed by the trial Court and as against which, the plaintiffs/petitioners preferred an appeal in A.S.No.206 of 2011 on the file of the Principal Subordinate Court, Tiruchirappalli. During the pendency of the said appeal, the plaintiffs have filed an application in I.A.No.905 of 2014 praying to dismiss the suit by granting liberty to the plaintiffs to file a fresh suit for the same cause of action.

3.The learned Principal Subordinate Judge, Tiruchirappalli, after taking into consideration the facts and circumstances of the case, had come to the conclusion that the petitioner is not entitled to withdraw the suit and to file a fresh suit for the same subject matter and transferred the entire appeal to the Wakf Tribunal. Aggrieved by the same, the present Civil Revision Petition is filed.

4.The main contention of the revision petitioners is that the order of the First Appellate Court, transferring the entire appeal to the Wakf Tribunal, is not in accordance with law and it is beyond the jurisdiction and scope of the appellate Court. The learned Counsel for the revision petitioners contended that the Wakf Tribunal is constituted only for the purpose of deciding the disputes arising under the WAKF ACT and it had no jurisdiction to try the appeal suits, which should be decided by the civil Court itself. He further contended that there is no impediment for the First Appellate Court to decide the appeal suit.

5.The First Appellate Court, while disposing the interlocutory application referred a judgment reported in 2019 (2) MWN (Civil) 533 stating that the suit is not maintainable in view of the Wafk Act, 1995 and transferred the appeal to the Wakf Tribunal.

6.The learned Counsel for the petitioners contended that the suit was instituted in the year 1985 and the cause of action had arisen in the year 1985, whereas, the WAKF ACT came into effect only in the year 1995. In the absence of any pleadings before the trial Court, the First Appellate Court has without taking cognizance of the pleadings before the trial Court, transferred the appeal suit to the Wakf Tribunal under WAKF ACT .

7.The learned Counsel for the petitioners contended that Order XXIII Rule 1 and 2 of CPC, refer only with regard to the permission to be sought from the Court to withdraw the suit and file another suit with the leave of the Court for the very same cause of action. The language of the proviso to Order XXIII Rule 1 and 2 makes it clear that it is applicable only to withdrawal of the suit and it is not applicable at the appeal stage, when the right of a minor is also involved.

8.For better appreciation, Order XXIII Rule 1 and 2 of CPC is extracted hereunder:

“1. Withdrawal of suit or abandonment of part of claim.

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of