IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P.No.125/2019 BETWEEN:
1. M/S. K.N.S. HAJEE SHEIKH ABDUL KHADER LABBAI SAHIB CO.(PVT) REPRESENTED BY ITS SENIOR BRANCH MANAGER NO.320, PRESENT NO.W-84 OLD THARAGUPET BENGALURU-560053.
2. THE DIRECTOR M/S.K N S HAJEE SHEIKH ABDUL KHADER LABBAI SAHIB CO.(PVT) REPRESENTED BY ITS SENIOR BRANCH MANAGER NO.320, PRESENT NO.W-84 OLD THARAGUPET BENGALURU-560053. ... PETITIONERS (BY SRI.NISHANTH A V, ADV.) AND:
1. THE CHIEF EXECUTIVE OFFICER KARNATAKA STATE BOARD OF WAKFS NO.6, CUNNINGHAM ROAD BENGALURU-560052.
2. THE MANAGING COMMITTEE MASJID-e-JAMATH-e-LABABEEN NO.470, AVENUE ROAD BENGALURU-560002 REP. BY ITS PRESIDENT/MUTHAVALLI MR.V R MOHAMMED AKBAR AGED ABOUT 61 YEARS S/O V R ABDUL SUBHAN (LATE). ... RESPONDENTS (BY SRI.MOHAMMED TIPPU SULTAN, ADV. FOR R1 SRI.MAHMOOD PATIL, ADV. FOR R2) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 83(9) OF THE WAKF ACT 1995, AGAINST THE ORDER DATED 19.10.2017 PASSED ON I.A.NO.I IN APPLICATION NO.31/2016 ON THE FILE OF THE PRESIDING OFFICER, KARNATAKA WAKF TRIBUNAL BANGALORE DIVISION BENGALURU, REJECTING THE I.A.NO.I FILED UNDER ORDER VII RULE 11(d) R/W SECTION 151 OF CPC, FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners are before this Court under Section 83 (9) of the Code of Civil Procedure assailing the order dated 19.10.2017 passed on I.A.No.1 in Application No.31/2016 before the Karnataka Wakf Tribunal, Bangalore Division, Bangalore.
2. The petitioners are respondent Nos.2 and 3 and respondent No.1 herein is Applicant before the Wakf Tribunal. The respondent No.1 filed application before the Wakf Tribunal under Section 83(2) R/w Section 54(3) of the Wakf Act, 1995, (for short ‘the Act’) praying for an order of eviction directing the respondents 2 and 3 to quit, vacate and deliver vacant possession of the Schedule Premises to the custody of the 1st respondent together with damages for the use and occupation of the schedule premises subsequent to termination of tenancy. The schedule property is shop premises bearing No.320, Present No.W-84, Old Tharagupet, Bengaluru – 560 053, measuring East to West 17.3 feet and North to South 63 feet. When the application was at the stage of enquiry for recording evidence of the applicant, the petitioners herein filed application under Order VII Rule 11(d) of CPC praying the Tribunal to reject the plaint/main application as the schedule shop premises would not come within the purview of the prescribed requirement contemplated under Section 54(1) of the Act. The application was opposed by the 2nd respondent herein by filing objection. The respondents denied the allegation made in the application and stated that it is a registered wakf property. The Tribunal under the impugned order dated 19.10.2017 rejected the application filed by the petitioners under Order VII Rule 11(d) of CPC.
3. Heard the learned counsel for the petitioners and learned counsel for the respondents. Perused the petition papers.
4. Learned counsel for the petitioners would submit that the property in question is not wakf property and it is not registered under Section 36 of the Act. Further he contends inviting attention of this Court to Section 54 of the Act that the said Section would have no application to the facts of the present case. It is his submission that as the property itself is not registered as wakf property, the question of filing application before the Wakf Tribunal would not arise.
5. Per contra, learned counsel appearing for the respondents would submit that the property in question is wakf property duly registered and also referred to the earlier proceedings before this Court in W.P.Nos.54833 and 54834/2015 and W.A.Nos.4046 and 4047/2016. Thus they prayed for dismissal of the petition.
6. On hearing the learned counsels and on perusal of the petition papers, the only question that requires consideration is whether the Tribunal is justified in rejecting the application filed under Order VII Rule 11(d) of CPC ? The answer to the said question is in the ‘affirmative’ for the following reasons.
7. The 1st respondent filed application under Section 83(2) r/w Section 54(3) of the Wakf Act to evict the petitioners herein from the application schedule property. The application averments would indicate that the petitioners herein had entered into lease on 03.06.1959 with the Wakf Institution. The tenancy is terminated in respect of the schedule property and as the petitioners herein have failed to vacate, they have been treated as encroachers and Section 54 of the Act is invoked. The contention of the petitioners herein who are respondents before the Tribunal is that, it is not Wakf property and the property is not registered as such under Section 36 of the Act. Whether the property is registered Wakf property or not is a matter for trial. The Tribunal based on the evidence that would be placed before the Tribunal has to come to the conclusion that whether it is a Wakf property registered under Sections 36 of the Act and thereafter whether Section 54 of the Act is applicable or not has to be determined. Hence without recording evidence the question raised by the petitioners cannot be gone into at this stage.
8. While considering the application filed under Order 7 Rule 11 of CPC, the averments made in the plaint are relevant and the pleas taken in the written statement or the defence of the respondent are irrelevant. The Tribunal while considering the application filed under Order 7 Rule 11 of CPC could not have looked into the documents produced by the respondents and could not have given a finding with regard to registration of Wakf property and finding as to whether it is notified Wakf property. The finding and observation made by the Tribunal in the impugned order shall not influence the Tribunal while passing the final order.
9. On perusal of the application filed under Order VII Rule 11 of CPC, it is contended that schedule premises would not come within the purview of the prescribed requirement contemplated under Section 54(1) of the Act. Whether Section 54(1) is attracted and whether petitioners herein are encroachers or not requires trial. The earlier proceeding referred to by the parties are to be placed before the Tribunal in evidence. Therefore, the Tribunal is justified in rejecting the application filed under Order VII Rule 11 of CPC. Tribunal to answer all the issues at the time of final disposal. All the contentions of the parties are left open.
10. In view of rejection of CRP itself, I.A.No.04/2019 filed for vacating stay does not survive for consideration, hence the application is dismissed.
Sd/- JUDGE NG* CT:bms