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IN THE HIGH COURT OF ALLAHABAD
S. C. MATHUR, BRIJESH KUMAR, S. H. A. RAZA
SUNNI CENTRAL WAQF BOARD - Appellant
Versus
GOPAL SINGH VISHRAD - Respondents
O. O. S. 4 Of 1989
Decided On : 08/22/1990
O. 14, R. 2 - PRELIMINARY ISSUES - LIMITATION - JURISDICTION - WAQF PROPERTY - NOTIFICATION - MAINTAINABILITY OF SUIT - NON-JOINDER OF IDOLS - JURISDICTION OF CIVIL COURT - APPLICABILITY OF LIMITATION ACT AND MUSLIM WAQF ACT - DISCRETION OF COURT.
Fact of the Case:
The applicant, Paramhans Ram Chandra Das, filed an application under Order XIV R. 2 (2) (b) and S. 151 of the Code of Civil Procedure, 1908, seeking to dismiss the suit filed by Sunni Central Board of Waqfs without recording findings on other issues, based on the finding recorded by the Civil Judge, Faizabad, on issue No. 17 that no valid notification u/s. 5 (1) of the Muslim Waqf Act No. XIII of 1936 was ever made relating to the specific disputed property of the present suits.
Finding of the Court:
1. The amendment brought about in O. 14, R. 2 in 1976 made it discretionary for the Court to decide an issue of law as a preliminary issue, unlike the mandatory provision under the old rule. 2. Only issues of law falling within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2 of O. 14 can be decided as preliminary issues. Cl. (a) mentions "jurisdiction of the Court", and clause (b) deals with "bar to the suit created by any law for the time being in force." 3. Issues 5 (b), 5 (e), 6, 18, 19 (d),19 (e), 20 (b) and 21 do not fall within the ambit of cl. (b) and hence cannot be decided as preliminary issues. 4. Issues 3 and 5 (f) relate to the question of limitation and jurisdiction, which are covered by cl. (b), but the determination of these issues involves questions of fact for which evidence may be required, making it undesirable to take them up as preliminary issues. 5. The finding recorded by the Civil Judge on Issue No. 17, that no valid notification has been made in respect of the property in suit u/s. 6 (1) of the Muslim Waqfs Act, does not affect the maintainability of the suit filed by the Sunni Central Board of Waqfs, as the Waqf Board is specifically authorized under S. 19 (2) (q) of the Waqfs Act to institute suits and proceedings in a court of law relating to Waqfs, irrespective of whether they have been notified u/s. 6 (1).
Issues: 1. Whether the issues raised by the defendants can be heard and decided as preliminary issues under Order XIV R. 2 (2) (b) and S. 151 of the Code of Civil Procedure, 1908. 2. Whether the finding recorded by the Civil Judge on Issue No. 17, that no valid notification u/s. 5 (1) of the Muslim Waqf Act No. XIII of 1936 was ever made relating to the specific disputed property of the present suits, bars the maintainability of the suit filed by Sunni Central Board of Waqfs. 3. Whether the issues relating to limitation and jurisdiction, namely, Issues 3 and 5 (f), can be taken up as preliminary issues.
Ratio Decidendi: 1. The amendment to O. 14, R. 2 in 1976 made it discretionary for the Court to decide an issue of law as a preliminary issue, and only issues of law falling within the ambit of cls. (a) and (b) of sub-r. (2) of R. 2 of O. 14 can be decided as preliminary issues. 2. The determination of issues relating to limitation and jurisdiction, Issues 3 and 5 (f), involves questions of fact for which evidence may be required, making it undesirable to take them up as preliminary issues. 3. The finding recorded on Issue No. 17, regarding the absence of a valid notification under S. 6 (1) of the Muslim Waqfs Act, does not affect the maintainability of the suit filed by the Sunni Central Board of Waqfs, as they are specifically authorized under S. 19 (2) (q) of the Waqfs Act to institute suits and proceedings relating to Waqfs, irrespective of whether they have been notified.
Final Decision: The application filed by Paramhans Ram Chandra Das, seeking to dismiss the suit filed by Sunni Central Board of Waqfs without recording findings on other issues, is rejected. The prayer of Sri V. K. S. Chowdhary for hearing and deciding the aforesaid issues as preliminary issues is also rejected.
( 1 ) THIS application has been made on behalf of defendant No. 2, Paramhans Ram Chandra Das, to decide the matter mentioned therein as preliminary issues. The application has been made under Order XIV R. 2 (2) (b) and S. 151 of the Code of Civil Procedure, 1908. According to the applicant in view of the finding recorded by the learned Civil Judge, Faizabad, on issue No. 17 by order dated 21-4-1966 the suit filed by Sunni Central Board of Waqfs is liable to be dismissed without recording findings on other issues. On this basis the applicant prays that the suit may be dismissed at this very stage.
( 2 ) THE finding recorded by order dated 21-4-1966 is "no valid notification u/s. 5 (1) of the Muslim Waqf Act No. XIII of 1936 was ever made so far relating to specific disputed property of the present suits at hand. " At the time of hearing Sri V. K. S. Chowdhary, learned counsel for some of the defendants prayed that Issues 3, 5 (b), 5 (e), 5 (f), 6, 18, 19 (d), 19 (e), 20 (b) and 21 be also heard and decided as preliminary issues. The ground for making the prayer is that decision on those issues one way may bring the litigation to a close which will save the parties from the ordeal of summoning witness and incurring expense therein. It is submitted that these issues are of law and can be decided without oral evidence. It is also submitted that even if any oral evidence is required for deciding these issues the same may be recorded so that the parties may be saved of a protracted trial. Certain statements in the pleadings of the plaintiffs have been relied upon as containing admission in favour of the defendant.
( 3 ) THE prayer; has been opposed by Sri Abdul Mannan and Sri Z. Jilani, counsel for the plaintiffs. The main thrust of the argument of these counsel is that the matters raised by the defendants have already been dealt with by this Court in order dated 23-10-1989 whereby defendants Civil Misc. Application No. 14 (o) of 1989 dated 11-8-1989 under O. VII,r. 11 (d) for rejection of plaint has been rejected. It is passed that the reasons contained in that order are relevant for rejection of the present prayer also. It is submitted that substantial evidence will be required to decide the issues in question and the same evidence may have to be repeated at the trial of suit on all issues. Learned counsel, therefore, contend that the bearing of the issues as preliminary issues will be an exercise in futility and will impose unnecessary financial burden on the parties, apart from causing inconvenience and hardship to them.
( 4 ) BEFORE proceeding to examine the rival contentions it will be useful to reproduce the issues which are sought to be treated as preliminary issues. They are as follows :-ISSUE No. 3. It the suit within time?issue No. 5 (b) Has the said Act (U. P. Act No. XIII of 1936) no application to the right of Hindus in general and defendants in particular to the right of their worship?issue No. 5 (e) : Whether in view of the findings recorded by the learned Civil Judge on 21-4-1966 on issue No. 17 to the effect that "no valid notification u/s. 5 (1) of the Muslim Waqf Act (No. XIII of 1936) was ever made in respect of the property in dispute", the plaintiff Sunni Central Board of Waqf has no right to maintain the present suit?issue No. 5 (f) : Whether in view of the aforesaid finding the suit is barred on account of lack-of jurisdiction and limitation as it was filed after the commencement of the U. P. Muslim Waqf Act, 1960?issue No. 6 : Whether the present suit is a representative suit, plaintiffs representing the interest of the Muslims and defendants representing the interest of the Hindus?issue No. 18 : What is the effect of the judgment of their Lordships of the Supreme Court in Ghulam Abbas v. State of U. P. , AIR 1981 SC 2198 : (1981 Cri LJ 1835) on the finding of the learned Civil Judge recorded on 21-4-1966 on Issue No. 17. ISSUE No. 19 (d) : Whether the building in question cannot be a mosqu
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