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2012 Supreme(All) 530
[2012(8) ADJ 726]
ALLAHABAD HIGH COURT
BEFORE : DILIP GUPTA, J.
SYED MUSTAJAB HUSAIN, MUTWALLI MASJID DHULIAGANJ, WAQF NO. 23, AGRA ....Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, AGRA AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 34662 of 2003, decided on 23rd February, 2012)
Counsel :
S.M.A. Kazmi and Parvez Alam for the Petitioner; Manish Kumar Nigam and Rahul Sahai for the Respondents.
Headnote:Wakf Act, 1995—Sections 87, 32 and 50—Provincial Small Cause Courts Act, 1887—Section 25—Code of Civil Procedure, 1908—Order VIII, Rules 3, 4 and 5—Evidence Act, 1872—Section 58—Wakf property—Whether a mutawalli can maintain a suit for ejectment of a tenant and for recovery of arrears of rent—Plaintiff-petitioner sought quashing of impugned judgment of Revisional Court dated 19.7.2003—Ejectment of defendants and recovery of arrears of rent sought—Allegedly building consists of five shops on the ground floor and Masjid on the first floor—Building is a Wakf property—Defendant-respondent admitted that the Wakf was a registered wakf—As per Section 58, Evidence Act, admission itself is proof of this fact and it was not necessary for plaintiff to have filed the certificate of registration of wakf—Thus, Revisional Court held erroneous in holding that the suit could not have been instituted as the plaintiff did not prove that the wakf was a registered wakf—Petitioner, however, brought on record the registration certificate of the wakf issued by Board—A Mutawalli can institute a suit for eviction of tenant and recovery of rent where the property has been let out by him—Impugned judgment set aside. [Paras 32 to 51]
Result; Petition Allowed.
Hon’ble Dilip Gupta, J.—This petition, at the instance of the plaintiff, seeks the quashing of the judgment and order dated 19th July, 2003 by which the Revision filed by the defendants for setting aside the judgment dated 30th November, 2000 of the Court of Small Causes for ejectment of the defendants and for recovery of arrears of rent, was allowed and SCC Suit No. 65 of 1997 was dismissed.
2. The first issue that will arise for consideration in this petition is whether the plaintiff Wakf was a Wakf registered in accordance with the provisions of the Wakf Act, 1995 (hereinafter referred to as the ‘Wakf Act’) because Section 87 of the Wakf Act, provides that no suit for the enforcement of any right on behalf of any wakf which has not been registered in accordance with the provisions of the Wakf Act shall be instituted. The plaintiff had made a specific averment in paragraph 1 of the plaint that the building including the disputed shop belonged to the Wakf which was registered in the office of the U.P. Sunni Central Waqf Board, Lucknow (hereinafter referred to as the ‘Board’) as Wakf No. 23 but all that was stated in the written statement in reply to the averments made in paragraph 1 of the plaint was that the contents were not admitted for want of knowledge. It has, therefore, to be determined whether the averments made in paragraph 1 of the plaint stood admitted by the defendants in the absence of any specific denial in the Written Statement.
3. The second issue that will arise for consideration in this petition is whether the suit for ejectment and recovery of arrears of rent can be filed by the Mutawalli of the Wakf on behalf of the Wakf.
4. Syed Mustajab Husain, as Mutawalli of Masjid Dhuliyaganj, Wakf No. 23 Kotwali Ward Agra, 3, instituted SCC Suit No. 65 of 1997 for ejectment of the defendant Majeed Uddin (since deceased) from the shop and for recovery of arrears of rent. In paragraph 1 of the plaint it was asserted that the building bearing Municipal No. 21/170, situated at Mohalla, Dhuliyaganj, which consists of five shops on the ground floor and a Masjid on the first floor, is Wakf property and is registered with the Board as Wakf No. 23. It was further asserted in the plaint that Syed Mustajab Husain is the Mutawalli of the aforesaid Wakf No. 23 and is looking after the affairs of the Masjid and the building and as such is the landlord of the building; that the deceased defendant was the tenant of one shop bearing No. 21/170/2 on the ground floor on a monthly rent of Rs. 35; that the defendant did not pay rent since 1st September, 1993 despite repeated demands; that as the building including the shop situated in the building belongs to and is vested in the Wakf, The U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ‘Act’) will not apply to the building in view of Section 2(1)(bbb) of the Act which was inserted w.e.f. 26th June, 1994 and despite service of notice on the defendant for termination of the tenancy, the defendant did not vacate the premises and nor did he pay the arrears of rent.
5. The defendant Majeed Uddin filed a written statement. The averments made in paragraph 1 of the plaint, with the exception that property No. 21/170, Dhuliyaganj Agra, consisting of five shops on the ground floor and Masjid on the first floor, were not admitted for want of knowledge. It was further stated that Mustajab Husain claiming himself to be the Mutwalli used to realise the monthly rent of Rs. 36/- from the defendant who was a tenant of the Wakf; that the building was not exempted from the operation of the Act since the amendment made in the Act for exempting buildings belonging to or vested in a Wakf was made after the shop was given on rent; that the plaintiff had no right to sue; that the Wakf is a legal entity capable of suing and that the suit filed by Mustajab Husain was not maintainable.
6. The following points arose for consideration of the Judge, Cour
