The rejection of a plaint under Order 7 Rule 11 of CPC must solely consider the plaint's averments, not the defendant's defenses, and misapplication of law can lead to erroneous outcomes.

Headnote:(A) Waqf Act, 1995 - Sections 6 and 88 - Rejection of plaint - The Tribunal rejected the plaint on grounds of res judicata and failure to seek larger relief in earlier litigation - The court found that the rejection was erroneous as it did not consider the plaint averments properly and misapplied the law regarding challenges to notifications. (Paras 4, 17, 21, 22)

(B) Order 7 Rule 11 of CPC - The court emphasized that the determination of an application under this rule should only consider the plaint averments and not the defenses set up by the defendant. (Paras 11, 20)

Facts of the case:
The plaintiff sought to be declared the hereditary mutawalli of a dargah and to correct a notification regarding the mutawalli's name, which the Tribunal rejected citing previous litigation.

Findings of Court:
The court allowed the petition, set aside the Tribunal's order, and remitted the matter for adjudication in accordance with law.

Issues: The main issues were whether the plaint was rightly rejected based on res judicata and whether the plaintiff's claims were barred under the Waqf Act.

Ratio Decidendi: The court ruled that the Tribunal's rejection was based on an incorrect application of law and that the plaint should be considered on its own merits without reference to the defenses.

Result: The petition is allowed and the matter is remitted to the Tribunal.

CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL

ORAL ORDER

(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

The petitioner/plaintiff is before this Court being aggrieved by the order dated 07.10.2023 passed in O.S.No.25/2022 on the file of the Karnataka Waqf Tribunal, Kalaburagi Division, Kalaburagi (hereinafter referred to as 'the Tribunal' for short) by which the Tribunal allowing the application filed by defendant No.2 under Order 7 Rule 11(a) and (d) of CPC rejected the plaint.

2. The above suit is filed by the petitioner/plaintiff seeking following reliefs:

A) It be declare that the plaintiff is the hereditary mutawalli of Dargah Zinda Shah Madar (RH), Kohinoor Pahad, Taluka Basavakalyan Dist.Bidar.

B) The name Hydersab/Madar Sab appeared in Col.No.6 of Sl.No.238 of the Gazetted notification No.KTW/561/ASA/74 dated 11.02.1974, be deleted and incorporate the name of plaintiff.

C) The name of plaintiff Zakeer Hussain S/o Madar Sab be incorporate in Col.No.6 at Sl.No.405 of the Gazette Notification No.KTW/561/ASA/74 dated 11.02.1974.

D) The defendant No.2 be restrained perpetually from interfering, creating obstruction in discharge of duties and responsibilities of plaintiff Mutawalli, in the management, administrative and development, of notified dargah Hazrat Zinda Madar Shah (RH) Tq.Basavakalyan Dist.Bidar.

E) Any such other relief under the facts and circumstances of the case, plaintiff is entitled may kindly be granted in the interest of justice and equity.

3. A detailed written statement has been filed by the defendant No.2 denying the plaint averments and allegations. Defendant No.2 also filed an application under Order 7 Rule 11(a) and (d) of CPC seeking rejection of plaint. Objection statement to the said applications has been filed by the petitioner. The Tribunal framed the following points for its consideration:

1) Whether I.A.No.4 under Order VII Rule 11 (A & D) of CPC filed by the defendant No.2 deserves to be allowed?

2) What order?

The Tribunal after hearing the parties, by the impugned order allowed the application by rejecting the plaint.

4. The learned counsel for the petitioner reiterating the grounds urged by the memorandum of petition submitted that the Tribunal grossly erred in rejecting the plaint, taking into consideration the defense set up by the defendants in the written statement, which is reproduced verbatim in the application seeking rejection of the plaint. He submits primarily the Tribunal has rejected the plaint on the ground of same having been adjudicated in earlier round of litigation and plaintiff not seeking a larger relief in the earlier round of litigation. He submits that these two grounds primarily falls within the provisions of res judicata and Order 2 Rule 2 which cannot be ground for rejection of plaint.

5. He submits for the purpose of cause of action the plaintiff at paragraph No.28 of the plaint has pleaded in elaboration and the Tribunal without adverting to the same has erroneously held that the cause of action pleaded by the plaintiff is illusory and has proceeded to reject the plaint accordingly. He submits plaintiff has sought for as many as four reliefs. One of them is seeking correction in the Notification of the year 1974. That the Tribunal has erroneously construed the said relief to be challenged to the very notification and referring to Section 6 and 88 of the Waqf Act, the Tribunal has held the suit is barred. He submitted such an approach by the Tribunal is impermissible as seeking correction to the notification would not amount to challenge the notification itself. In any event, he submits that the plaintiff is not questioning the nature of the waqf and is only seeking insertion of name of his father in the notification, which could not fall within the ambit of prohibition contained under Section 6 of the Waqf Act.

6. In support of his case, the learned counsel for the petitioner has relied upon the following judgments:

1. P.V.Guru Raj Reddy, Rep. by GPA Laxmi Narayan Reddy & Anr. V

Click Here to Read the rest of this document