Heard Shri Mohd. Yasin, learned counsel for the revisionist and Shri M.M. Salman, learned counsel for the opposite party No.3.
The instant revision has been preferred under Section 83(9) of the Waqf Act, 1995 against the order dated 03.10.2019 passed by the U.P. Waqf Tribunal in Waqf Case No.106/2019, whereby the application of the revisionist purporting to be under Order 7 Rule 11 CPC has been rejected.
The submission of the learned counsel for the revisionist is that the opposite party No.3 while moving an application before the Waqf Tribunal has sought a relief of injunction against the Waqf Board. Accordingly, this amounts to filing of a suit and, therefore, in light of the embargo contained in Section 89 of the Waqf Act, the instant petition filed before the Waqf Board is not maintainable.
It has further been submitted that the Waqf Tribunal has not considered this aspect of the matter and has merely held that since it is not a suit under Section 6 or Section 7 of the Waqf Act, 1995, consequently, Section 89 of the Waqf Act has not applicability.
Opposing the aforesaid submissions, learned counsel for the opposite party No.3 has pointed out that it is not in dispute between the parties that the property in question is a Waqf property. The only grievance raised by the opposite party No.3 was laying a challenge to the order dated 31.07.2019 passed by the Waqf Board whereby a new Mutwalli has been appointed despite the fact that the opposite party No.3 is already continuing as a Mutwalli and Managing Committee is already in place.
In the aforesaid backdrop, it cannot be said that Section 89 of the Waqf Act has any role to play. Accordingly, the Waqf Tribunal has rightly rejected the application under Order 7 Rule 11 CPC by means of the impugned order.
Learned counsel for the opposite party No.3 has relief upon a decision of this Court reported in 2009 (4) AWC 4044 - Shahroz Khan vs. U.P. Sunni Central Waqf Board, Lucknow & Ors., wherein paragraphs 5 and 6, the Court has considered this aspect of the matter, which reads as under:-
"5. It is settled law that the Court can interpret a provision in order to iron out the creases but it cannot weave a new texture. The Legislature clearly intended to provide for a notice under Section 89 but it did not consciously include any such provision in Section 83. The procedure, which has not been provided for in Section 83, cannot be introduced even applying Heydons' rule of interpretation. This Court will not read into the provision and virtually enact a procedure which has not been provided for. If the section does not contemplate a specific procedure then merely because some other section in the Act, which in the present context is for a suit and not for an application for reference, cannot be applied on the basis of an interpretation and an inference drawn on the strength of the judgment relied upon by the learned counsel for the applicant. The Court is not to legislate or introduce any rule or procedure by judicial intervention.
6. Nonetheless, it is the choice of the opposite party to move an application under Section 83 of the Act. Whether the suit would lie or a reference would lie is an altogether different question but so far as moving of an application under Section 83 is concerned, the same does not require any compliance of the procedure prescribed under Section 89. The judgment relied upon by the learned counsel for the applicant does not come to the aid of the applicant on the proposition advanced."
The Court has considered the rival submissions of the parties and also perused the record.
It is not in dispute that the application preferred by the opposite party No.3 is under Section 83(2) of the Waqf Act, 1995. A challenge has been made to the order dated 31.07.2019, which has passed by the Waqf Board. There is no such dispute raised in the application regarding any property of the Waqf nor it is disputed. Prima-facie no role or applicability of Section 89 of the Waqf Act, 1995 is made out. Merely because a relief of injunction has been prayed by the opposite party No.3 does not change the nature of the application. In case if the revisionist has any objection he can contest the proceedings on merit. However, so far as the applicability of the Order 7 Rule 11 CPC is concerned, the scope is limited as to ascertain from a bare perusal of the application whether it is barred by any law.
Learned counsel for the revisionist could not point out any error and upon being asked regarding the fact whether there is a dispute of the waqf property, he has candidly submitted that there is no dispute to the fact that the proceedings before the Waqf Tribunal does not relate to any waqf property in terms of Section 6 and 7 of the Act.
In light of the aforesaid, the Court has considered the impugned order and finds that there is no error. The application under Order 7 Rule 11 has rightly been rejected. No case is made out. Accordingly, the revision is devoid of merits and is dismissed at the admission stage.
Order Date :- 28.11.2019 Rakesh/-