The Bombay High Court recently comprising of a bench of Justice N.J. Jamadar observed that Under Order VII Rule 11 a plaint can only be rejected as a whole and not in part. (Aurangabad Smart City Development Corporation Limited V The Maharashtra State Board Of Waqf, Aurangabad)
The bench remarked that the plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part.
Facts of the Case
Through this civil revision petition the legality, propriety, and correctness of an order passed by the Maharashtra State Waqf Tribunal, Aurangabad, was challenged. In this impugned order dated 11th February 2021, an application preferred by Municipal Co. was submitted for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (Code) but it was rejected by the lower court.
The background facts leading to this application are land bearing Survey No. 210 including CTS No. 2340 (suit property), is the Waqf Property dedicated for the services of Jama Masjid, Aurangabad. In the record of rights, the suit property was shown in the name of Mohammad Azeemuddin, Mutawalli, who was caretaker of the land of the Jama Masjid. The plaintiff avers that while implementing the City Survey Scheme, probably in the year 1971, the name of defendant No.1-Municipal Corporation is recorded as owner and occupant of the suit land without any legal mandate. The mutation of the name of defendant No.1 – Municipal Corporation in the City Survey record, however, neither divest the ownership over the suit land of the Waqf Institution nor confers any right, title, and interest in the suit land upon the Municipal Corporation.
The plaintiff Board initiated the proceedings under Section 40 of the Waqf Act, 1995, and passed an order on 25th June 2013 declaring that the suit property and then did not proceed with any other applications. The order passed by the Board on 25th June 2013 declaring the suit property as the Waqf Property, thus, remained intact.
Later the appellants here threatened to commence construction of the War Room office of the Smart City Development Corporation over the suit land despite the order of the plaintiff-Board declaring the suit land to be the Waqf Property.
Hence the suit for perpetual injunction restraining the defendants from making any sort of construction over the suit land or creating third party interest therein.
Contention of the Parties
Mr. Sapkal, the learned Senior Counsel for the applicants, strenuously urged that the Tribunal committed a manifest error in reading of the plaint, according to Mr. Sapkal, it becomes abundantly clear that the plaintiff-Board has admitted in unequivocal terms that the defendant No.1-Municipal Corporation is in possession of the suit property and has erected multiple structures thereon. Thus, the Tribunal could not have observed that the plaintiff has not admitted the possession of the defendants over the suit property, especially after observing that there is no clear pleading to the effect that the plaintiff is in possession of the suit property. Secondly, according to Mr. Sapkal, the Tribunal misdirected itself in rejecting the application for rejection of the plaint on the premise that the plaintiff can amend the plaint and incorporate the relief of possession. This view vitiated the entire reasoning of the Tribunal, urged Mr. Sapkal
It was further submitted that the bar envisaged by the clause (d) of Rule 11 of Order VII of the Code need not be statutory alone. It is well recognized principle of law that a suit for prohibitory injunction simpliciter by a person who is not in possession of the suit property, without seeking the relief of possession, is not tenable.
Mr. Y.B. Pathan, the learned Counsel for the respondent-plaintiff joined issue by canvassing a submission that the provisions of Section 487 of the Act, 1949 were not at all attracted as the plaintiff has invoked the jurisdiction of the Civil Court against the unlawful act of defendant No.1-corporation. To commit encroachment and usurp the Wakf Property can never be an act done or purported to be done in pursuance or execution or intended execution of the Act, 1949, stoutly submitted Mr. Pathan.
On the aspect of nature of relief in the suit, Mr. Pathan urged that in the peculiar facts of the case, it is not open to the defendant No.1- Municipal Corporation to question the character of the suit property. The Board, in exercise of the powers vested in it U/S. 40 of the Waqf Act, 1995, has lawfully made a declaration that the suit property is the Waqf Property. A challenge thereto at the instance of defendant No.1-corporation has since been abandoned. In this state of affairs, the suit seeking the relief of injunction is perfectly in order, submitted Mr. Pathan.
Courts Observation & Judgment
The bench observed that “It is trite law that the rejection of the plaint envisaged by the Order VII Rule 11 of the Code is a rejection of the plaint as a whole. The plaint cannot be rejected in part. If the plaint survives against certain defendants or property, Order VII Rule 11 will have no application at all and the suit as a whole must then proceed to trial.”
Thus, it was stated that “the bar to the tenability of the suit in the absence of prayer of possession, does not apply with equal force. The prayer for rejection of the plaint on the said count does not merit acceptance since the Tribunal does not seem to have committed any error. in observing that notice U/S. 487 of the Act 1949 was not warranted as the act attributed to defendant No.1-corporation cannot be said to have been done or purported to be done in pursuance or execution or intended execution of the provisions of the said Act, 1949. The substratum of the plaintiff’s case is that the defendant No.1- corporation has arrogated the suit property though it is a Waqf Property and unlawfully erected structures thereon. In the circumstances, the notice U/S. 487 of the Act, 1949 is plainly not warranted.”
The bench noted that in the case at hand, the nature of injunctive relief sought by the plaintiff assumes critical significance. There are two dimensions to the relief sought by the plaintiff. One, the defendant be restrained from carrying out any kind of construction over the suit property. Two, the defendant be restrained from creating third party interest over the suit property. These reliefs, on a proper consideration, have their genesis in the claim of title over the suit property. As indicated above, until the declaration made by the Waqf Board U/S. 40 of the Act, 1995 holds the field the plaintiff is entitled to legally assert that the suit property is a Waqf Property.
The relief of injunction restraining the defendants from making any kind of construction over the suit property cannot be equated with a relief of prohibitory injunction restraining the defendants from causing obstruction to the possession of plaintiff, which is often found in run of mill cases. With a categorical assertion that the defendant No.1 has erected certain structures over the suit property, this relief of injunction seeking restraint on making construction over the suit property is required to be construed as one to restrain the defendants from carrying out further construction. The second part of the injunctive relief i.e. of restraint from creating third party interest in the suit property is an exercise of incidence of ownership over the suit property, plain and simple. Armed with the declaration that the suit property is a Waqf Property, the plaintiff-Board is within its rights in seeking such relief of injunction, irrespective of question of possession, as it emanates from the claim of title over the suit property.
Hence, the revision application was rejected by the HC since the Tribunal did not commit any jurisdictional error in rejecting the application for rejection of the plaint.
Read Judgment ;
SOURCE ; .latestlaws.com
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