The jurisdiction of the civil court is plenary in nature and cannot be ousted unless expressly or by necessary implication. Material is required to support the claim of waqf property as per the Act, 1995, and the bar under Section 85 of the Act, 1995 has a limited scope.

JUDGMENT :

1. Heard Sri Bashir Ahmad Khan, learned counsel for the petitioners and Sri Ravi Agrawal along with Sri Rakesh Kumar Pandey, learned counsel for the respondents.

2. The present petition has been filed seeking a prayer to set aside the order dated 24.11.2018 passed by the Civil Judge (Junior Division)I, Hapur in Original Suit No.199 of 2017 (Sanjeev Kumar & Ors. Vs. Siraj Ahmad & Ors.) whereby the application (Paper No.90Ga) filed by the petitioners under Order VII Rule 11 of the Code of Civil Procedure, 1908 CPC has been rejected.

3. The petitioners also seek to assail the order dated 23.07.2019 passed by the District Judge, Hapur in Civil Revision No.75 of 2018 (Siraj Ahmad & Ors. Vs. Sanjeev Kumar & Ors.) in terms of which the order rejecting the application under Order VII Rule 11 CPC has been affirmed.

4. The only ground which has been sought to be canvased on behalf of the petitioners to support their claim for rejection of plaint under Order VII Rule 11 CPC is by placing reliance upon Section 85 of the Waqf Act, 1995 the Act, 1995 to contend that the property in question being a waqf property the jurisdiction of the civil court would be barred.

5. Per contra, learned counsel for the respondents has supported the orders passed by the courts below by submitting that no material was placed on record by the petitioners to support their claim that the property in question is a waqf property. It has further been submitted that there was no material to show that the property was included in the list of auqaf published under the Act, 1995 and the claim of the petitioners which was based merely on certain revenue entries could not be accepted.

6. In order to examine the rival contentions the scope of the provisions under Order VII Rule 11 CPC is required to be considered and it has also to be seen as to whether, in the facts of the case the jurisdiction of the civil court would be barred in view of the provisions contained under Section 85 of the Act, 1995.

7. Section 9 CPC enables any person, as a matter of right, to file a suit of a civil nature excepting those, the cognizance whereof is either expressly or impliedly barred.

8. The two conditions which are required to be fulfilled for a civil court to have jurisdiction are; (a) the suit must be of a civil nature; and (b) the cognizance of such a suit should not have been expressly or impliedly barred.

9. The expression "civil nature" and the scope of jurisdiction of a civil court under Section 9 CPC was considered in the case of Most Rev. P.M.A. Metropolitan & Ors. Vs. Moran Mar Marthoma & Anr. 1995 Supp (4) SCC 286, and it was held as follows:

“28. ...The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word 'shall' and the expression, “all suits of a civil nature” unless “expressly or impliedly barred”.

29. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word 'shall' makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of expression 'all suits of civil nature'. The word 'civil