IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 563 OF 2017 (GM-CPC) BETWEEN:
LABBAI SUNNATH JAMATH MASJID REPRESENTED BY ITS PRESIDENT AKBAR S/O ABDUL RAZAK AGE ABOUT 54 YEARS, LABBAI SUNNATHJAMATH MASJID 2ND DIVISION, S.R.ROAD NEAR KODAHALLI CIRCLE GUNDALPET … PETITIONER (BY SRI. MOHAMMED TAHIR, ADVOCATE) AND:
1. MURALI S/O LATE L SWAMY AGED ABOUT 54 YEARS, R/AT NO.441, 11TH MAIN CANTUR ROAD, AALANAHALLI LAYOUT MYSORE 2. G.M.ABDUL GAFOOR S/O A M ANEEF AGED ABOUT 69 YEARS, 3. ABDUL LATHEEF S/O LATE ABDUL SAMAD AGED ABOUT 61 YEARS, 4. MUJEEB S/O LATE AWOOL HAMZA AGED ABOUT RESPONDENT NO.2,3 & 4 ARE MEMBERS OF LABBAI SUNNATH MASJID R/AT 2 DIVISION, SR ROAD, NEAR KODAHALLI CIRCLE, GUNDALPET.
5. ILIYAZ S/O T.K.NOORULLA AGED ABOUT 39 YEARS, R/AT NO.837, ABDUL NAZEER SAB LAYOUT, GUNDALPET.
… RESPONDENTS (BY SRI. S ANIL KUMAR, ADVOCATE FOR R1; NOTICE TO R2 TO R5 DISPENSED WITH V.C.O. DATED 28.02.2017) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY CIVIL JUDGE AND JMFC GUNDALPET IN IAS NO.4 IN O.S.NO.243/2014 VIDE DATED 23.08.2016 AT ANNEX-E.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the first defendant in a declaration suit in O.S.No.243/2014 is knocking at the doors of Writ Court for assailing the order dated 23.08.2016 a copy whereof is at Annexure-E whereby the learned Civil Judge, Gundlupete, having rejected petitioner’s application in IA NO.4 filed under Order VII Rule 11(d) of CPC, 1908, has held that the suit is maintainable. After service of notice, the first respondent having entered appearance through his counsel, resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the mater inasmuch as, rejection of plaint is a serous matter when the facts are disputed; secondly going by the text of Section 85 of the Karnataka WAKF Act, 1995, it is too difficult to hold that the civil court does to have jurisdiction in the matter and that it is only the WAKF Tribunal which has got the exclusive jurisdiction. This reasoning is consistent with the decision of the Apex Court in the case of DHULABHAI VS. STATE OF MADHYA PRADESH, AIR 1969 SC 78 3. The reasoning of the Court below that the respondent – plaintiffs have produced sufficient evidentiary material which prima facie establishes private ownership of the property is difficult to falter. There is a triable case in the suit and therefore rightly the request for rejection of the plaint is not acceded to.
In the above circumstances, the writ petition being devoid of merits, is dismissed.
However, all contentions of the parties are kept open for being urged, after the trial of the suit.
No costs.
Sd/- JUDGE Bsv