Waqf Masjid Pindain and Others Vs Athar Husain Haidri and Another

R.C. Deo Sharma, J.@mdashThis is a first appeal from the order dated 18-2-84 passed by the learned Special Judge, Lucknow, exercising the powers as an Additional District Judge. The brief facts giving rise to this appeal may be stated thus. There is a waqf under the name and style of Waqf Masjid Pindain having properties attached to the waqf at Lucknow. This includes a mosque and certain shops. The Shia Central Board of Waqfs exercises powers under the UP. Muslim Waqfs Act, 1960, and it is alleged on behalf of the appellants that in exercise of powers under the aforesaid Act the Board appointed the appellant No. 3 Sri Mujtaba Husain as mutwalli of the Waqf, Since the respondents were said to be interfering in the discharge of duties of the Mutwalli (appellant No. 3) a civil suit was filed in the Court of the Munsif (North) Lucknow praying that the defendants be restrained from interfering in the plaintiff''s management of the waqf property and realisation of rent from the tenants. In the meantime it appears that the respondent No. 1 had filed a reference before the Waqfs Tribunal constituted under the aforesaid Act and which case was registered as reference No. 76 of 1983. The real point for determination in that reference was as to whether the present respondent No. 1 was the Mutwalli of the Waqf or the appellant No. 3 was a duly appointed Mutawalli. The respondent No. 1 made an application before the learned Munsif praying that the suit was not maintainable and that the dispute was one which was within the jurisdiction of the said Tribunal. The suit was said to be barred by Section 75 of the U. P. Muslim Waqfs Act and various other provisions of the said Act which provide for the relief sought being granted by the Tribunal. The learned Munsif heard the parties on the said application and also considered the objections filed on behalf of the appellants. He found that the suit was not triable by the Civil Court and that the reliefs sought could, be validly granted by the Waqfs Tribunal. Holding that the same matter was already pending before the Tribunal in a reference made by the respondent, the Court felt that the plaint should be rejected since what the Tribunal could entertain was a reference and not a suit. A regular first appeal was filed against the aforesaid judgment and decree which came up for hearing before the learned Special Judge. By and large he agreed with the findings recorded by the learned Munsif but he felt that the plaint instead of being rejected should be returned for presentation to the Tribunal which could treat it as a reference and decide the same along with the reference No. 76 of 1983 already pending before it, more so, when the matter involved in both these cases was substantially the same. Parties were directed to appear before the learned Munsif on 14th March, 1984 so that the plaint could be returned to the plaintiffs.

2. It appears that the plaintiffs appeared before the Court on the said date and the plaint was returned to them along with the documents filed on behalf of the plaintiffs; Thereafter instead of presenting the plaint before the Waqfs Tribunal the plaintiffs preferred this first appeal from the order contending that the findings recorded by the Courts below were erroneous and that the plaint should not have been rejected nor should have been returned for presentation to proper Court.

3. A preliminary objection has been taken on behalf of the respondents to the effect that the first appeal from the order as filed was not maintainable. Main reliance was placed on the provisions of Rule 10-A of Order VII of the C.P.C. as inserted by the amending Act of 1976.

4. The averments made in the plaint which has since been filed by the appellants with an application u/s 151 of the C.P.C. will indicate that the main dispute between the parties relates to the right of Mutawaliship for which the appellant No. 3 and respondent No. 1 are the contenders. The contention of the respondent No. 1 is that his father had created the waqf and remained Mutwali during his lifetime and thereafter he (respondent No. 1) was continuing as such and the mere fact that the Waqf Board had appointed him Mutwali for a period of five years in 1975 did not mean that his right of Mutwalliship which he enjoyed in his own right could be taken away. Alternatively his contention was that even after the expiry of five years in 1980 he continued to remain Mutwalli without any fresh orders from the Waqf Board till 1983 when the appellant No. 3 was appointed as such by the Board. Another contention was that he had already filed a reference before the Waqfs Tribunal (Civil Judge) Lucknow in which the same matter was involved and as the Tribunal was the only competent authority to decide such disputes and the civil suit was barred by the provisions of the said Act the plaint was rightly rejected and later ordered to be returned for presentation to proper Court or Tribunal, The contention of the appellant No. 3 on the other hand was that he was duly appointed as Mutwalli by the Waqfs Board and consequently was entitled to maintain a suit in the Civil Court.

5. So far as the maintainability of the appeal is concerned it is apparent that the order passed by the learned Munsif rejecting the plaint amounted to a decree within the meaning of Section 2(2) of the C.P.C. and consequently a first appeal u/s 96 was properly filed before the learned District Judge which came up for hearing before the learned Special Judge. It is also apparent that the learned Special Judge substantially agreed with the findings recorded by the learned Munsif but felt that instead of rejecting the plaint it should have been returned for presentation to the proper Court and accordingly the decree was modified to this extent. It will also appear from the explanation appended to Rule 10 of Order VII of the C.P.C. that a Court of appeal could also pass an order for the return of plaint under that rule. Thus, the learned Special Judge was fully empowered to return the plaint under Order VII Rule 10 of the C.P.C. if he found that the Civil Court had no jurisdiction to try the suit. Now an order passed under Rule 10 for the return of the plaint is an appealable order within the meaning of Order XLIII Rule l(a) of the C.P.C. Thus ordinarily a first appeal from such order could lie even though the order returning the plaint was passed not by the trial court but by the first Appellate Court. The same Clause (a) of Rule 1 of Order XLIII however also contains an exception laying down that where the procedure specified in Rule 10-A of Order VII has been followed, an appeal against the order would not lie under Order XLIII.

6. Rule 10-A reads as below : --

"10-A. Power of Court to fix a date of appearance in the Cout where plaint is to be filed after its return.-- (1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under Sub-rule (1), the plaintiff may make an application to the Court,

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under Sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit.--

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearance is given under Sub-rule (3),--

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded, otherwise directs, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint."

7. The respondents have filed an affidavit dated 12-4-84 stating that the appellants after the order of the first appellate court appeared before the trial court and made an application which has been annexed as Annexure-C1 thereto praying for the return of the plaint along with the documents filed by them for presentation before the Civil Judge Lucknow. The Waqfs Tribunal was presided over by the Civil Judge Lucknow. In the same application Annexure-C1 to the affidavit the plaintiffs submitted before the trial court that the appellate court had directed return of the plaint for being presented before the Civil Judge Lucknow and it was therefore requested that the documents including the plaint, registered addresses and vakahtnama filed by the plaintiffs might be returned to the plaintiff for presentation before the court of the Civil Judge Lucknow. It was argued on the basis of this application that the plaintiffs had themselves submitted to the order passed by the first appellate court and in pursuance thereof had requested the trial court to return the plaint, registered addresses, Vakalatnama and other documents filed by the plaintiffs so that they could be presented before the court of the Civil Judge Lucknow. Sub-rule (5) of Rule-10A already reproduced earlier would indicate that in case the application of the plaintiff for the return of the plaint is allowed he shall not be entitled to appeal against the order returning the plaint. The application annexure-C1 was sufficient compliance of Sub-rule (2) of Rule 10A although it appears that no prayer was made for fixing a date for appearance before the Tribunal and no such directions were also given by the learned Munsif while returning the plaint that the parties should appear before the Tribunal on a particular date. The non-observance of this part of the provision should not, in my view, take away the main character of the application praying for return of the plaint for presentation to the Tribunal and there would be no escape from the consequences referred to in Sub-rule (5) of Rule 10A to the effect that on such application being allowed the plaintiff would not be entitled to prefer an appeal against the order for return of plaint. The provision is very much similar to the one contained in Section 96(3) of the C. P. C. which bars an appeal from a decree passed by a court with the consent of the parties. The effect of making an application under Rule 10A(2) and the order allowing the same would be very much similar to an order passed with the consent of parties. The mere fact that a date was not fixed for appearance of the parties before the Tribunal and no such prayer was made by the plaintiff would be of no consequence except that whenever the plaint is presented before the Tribunal which may treat it as reference it will issue notice to the opposite parties. In fact the opposite parties are already before the Tribunal as they have made a reference No. 76 of 1983 which is pending before it.

8. Learned counsel for the appellant has however relied upon certain decisions in support of his contention.

9. In Durgah Committee v. Ahsanali AIR 1949 Ajmer 41 the plaint was returned for presentation to proper court under the order of the first appellate court and it was held that such an order could be made by the appellate court and a second appeal did not lie but it could be treated as a first appeal against the order. I agree that an order returning the plaint can certainly be passed by an appellate court as already observed above but it is Rule '' 10A of Order VII C.P.C. which bars the filing of an appeal against such an order. This Rule 10A has been incorporated by amendment in 1976 and was not there when the Durgah Committee case was decided.

10. Reliance was also placed on Mangamma v. Kalyanapu Appadu AIR 1948 Mad 315 and it was contended that simply because the plaintiffs had in this case taken back their plaint for filing it before the proper court they should not be debarred from challenging the matter in appeal. That case has also no application because in the instant case it is the operation of said Rule 10A of Order VII which bars the appeal and it was not there when the Madras case aforesaid was decided.

11. Another case relied upon was M. Ramnarain Private Limited and Another Vs. State Trading Corporation of India Limited, . In that case an appeal was filed against the granting of installments but soon thereafter it was withdrawn and a regular appeal against the decree was preferred. The argument that the previous appeal having been withdrawn no regular appeal could be filed was repelled and the appeal against decree which lay as of right was entertained It may be indicated that there was no statutory bar to the entertaining of an appeal as is the case here by virtue of Rule 10A of Order VII C. P. C. It was argued that the plaint and documents which were taken back by the plaintiffs have already been filed in this court along with an application u/s 151 C. P. C. with a prayer that the same may be sent back to the trial court with the direction to proceed with the case. It was also argued that if any confusion or ill advice of a counsel has resulted into this state of affair the party should not suffer on merits. In fact it is not a question of confusion or wrong advice. Rule 10A of Order VII prescribes this procedure which has been followed in this case. The contention of the learned counsel that the plaintiffs never intended to get the plaint back and file it before the Tribunal cannot be accepted because the application makes it abundantly clear, and then even if the plaint had been taken back in compliance of court''s order there was no occasion for "asking for the documents including the Vakalatnama and addresses of defendants to be returned and that too with a specific prayer that they were required to be filed before the Tribunal. If a first appeal from order was intended to be filed there was absolutely no necessity legal or otherwise to physically take back the plaint and the documents and file them here with a view to their being sent back again to the trial court. Obviously the intention to file an appeal was not there when the application for taking back the plaint and documents was made as required by Rule 10A.

12. On the other hand reliance was placed by the learned counsel for the respondents on C. Kalahasti Vs. P.C. Munuswami Chetti, . Apparently it appeared that the case supported the contention of the respondents but in fact it is not so. In that case the appellate court had passed an injunction order under Order XXXIX Rule I, C P. C. while hearing the appeal preferred under Order XLIII Rule 1. The bar of any further appeal contained in Section 104(2) of C. P. C. clearly operated in that case. That provision bars an appeal against an order passed in appeal preferred under Order XLIII Rule 1 read with Section 104 C. P. C In the instant case the appeal against rejection of plaint was regular first appeal u/s 96 C. P. C. and not one under Order XLIII Rule 1. In the circumstances, therefore, the bar of Section 104(2) did not operate. What operated was the bar under Order VII Rule 10A (5). Thus it is on a different ground that the appeal in the instant case will be barred and the principle in the case of C. Kalahasti (supra) will not apply in the circumstances. Besides the Bar contained in Sub-rule (5) of Rule 10A aforesaid, a first appeal from order of this nature is also specifically barred by Order XLIII Rule 1 (a) as amended by the Act of 1976.

13. In this view of the matter the appeal is not maintainable and is accordingly dismissed. There shall, however, be no orders as to costs.