Case Note & Summary
The petitioner, original defendant in Regular Civil Suit No.34/2016, challenged the order of the Trial Court dated 11.06.2018 which held that the suit for injunction simplicitor filed by the respondent (original plaintiff) was maintainable before the Civil Court, despite the suit property being admittedly wakf property. The petitioner had raised an objection under exhibit 17, leading to a preliminary issue on jurisdiction under Order XIV CPC. The Trial Court ruled against the petitioner, prompting the writ petition. The High Court examined the provisions of the Wakf Act, 1995, particularly Sections 83 and 85. Section 85 bars the jurisdiction of civil courts in matters that are required to be determined by the Wakf Tribunal under Section 83. The Court noted that the Wakf Tribunal has powers under Section 83(5) equivalent to those of a civil court under the CPC, including the power to grant temporary injunctions under Order 39 Rules 1, 2, and 2A. The Court relied on the Supreme Court decision in Board of Wakf, West Bengal vs. Anis Fatma, which held that the jurisdiction of civil courts is ousted in such matters. The Court distinguished the earlier decision in Ramesh Gobindram's case, which had suggested that the bar under Section 85 may not apply to injunction simplicitor, but noted that the later Supreme Court decision clarified the position. The Court also considered the submissions of the amicus curiae, who supported the petitioner's view. Consequently, the High Court allowed the writ petition, set aside the impugned order, and held that the Civil Court has no jurisdiction to entertain the suit. The suit was directed to be returned to the plaintiff for presentation before the appropriate Wakf Tribunal.
Headnote
A) Civil Procedure - Jurisdiction - Preliminary Issue - Exclusion of Civil Court Jurisdiction - Wakf Act, 1995, Sections 83, 85 - The issue was whether a civil court can entertain a suit for injunction simplicitor concerning wakf property. The Court held that the Wakf Tribunal has exclusive jurisdiction over disputes relating to wakf property, including suits for injunction, and the civil court's jurisdiction is barred under Section 85 of the Wakf Act, 1995. The impugned order of the Trial Court holding the suit maintainable was set aside. (Paras 2-10)
B) Wakf Law - Jurisdiction of Wakf Tribunal - Injunction Suit - Wakf Act, 1995, Sections 83, 85 - The Court considered the bar under Section 85 and the powers of the Wakf Tribunal under Section 83(5) which includes powers of civil court under CPC. It was held that the Tribunal has jurisdiction to grant injunctions and the civil court cannot entertain such suits. The decision in Ramesh Gobindram's case was distinguished. (Paras 5-10)
Issue of Consideration
Whether the Civil Court has jurisdiction to entertain a suit for injunction simplicitor in respect of wakf property, in light of Section 85 of the Wakf Act, 1995.
Final Decision
The writ petition is allowed. The impugned order dated 11.06.2018 passed by the Trial Court in R.C.S. No.34/2016 is set aside. The Civil Court has no jurisdiction to entertain the suit. The suit is directed to be returned to the plaintiff for presentation before the appropriate Wakf Tribunal.
Law Points
- Exclusion of civil court jurisdiction
- wakf property
- injunction simplicitor
- Section 85 Wakf Act 1995
- Section 83 Wakf Act 1995
- Order XIV CPC
- preliminary issue
- maintainability of suit
Case Details
2019 LawText (BOM) (12) 20
Writ Petition No.12083 of 2019
Shri Kadam Vithal P., Shri P.P.Mandlik, Shri Ajay S. Deshpande (Amicus Curiae)
Syed Abdulla s/o Syed Hasan
Rajeshwar Madhavrao Deshpande
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Nature of Litigation
Writ petition challenging the order of the Trial Court holding that the Civil Court has jurisdiction to entertain a suit for injunction simplicitor in respect of wakf property.
Remedy Sought
The petitioner (original defendant) sought to set aside the order dated 11.06.2018 passed by the Trial Court in R.C.S. No.34/2016, which held the suit maintainable before the Civil Court.
Filing Reason
The petitioner raised an objection that the suit property is wakf property and the Civil Court lacks jurisdiction under Section 85 of the Wakf Act, 1995.
Previous Decisions
The Trial Court framed a preliminary issue on jurisdiction and by order dated 11.06.2018 held that the suit is maintainable and the Civil Court has jurisdiction.
Issues
Whether the Civil Court has jurisdiction to entertain a suit for injunction simplicitor in respect of wakf property in view of Section 85 of the Wakf Act, 1995.
Submissions/Arguments
Petitioner argued that the suit property is wakf property and the Civil Court's jurisdiction is barred under Section 85 of the Wakf Act, 1995.
Respondent argued that the suit is for injunction simplicitor and the bar under Section 85 does not apply, relying on Ramesh Gobindram's case.
Amicus Curiae submitted that the later Supreme Court decision in Board of Wakf, West Bengal vs. Anis Fatma has clarified that the jurisdiction of civil courts is ousted and the Wakf Tribunal has exclusive jurisdiction.
Ratio Decidendi
Under Section 85 of the Wakf Act, 1995, the jurisdiction of civil courts is barred in matters that are required to be determined by the Wakf Tribunal under Section 83. The Wakf Tribunal has powers under Section 83(5) equivalent to those of a civil court under the CPC, including the power to grant temporary injunctions. Therefore, a suit for injunction simplicitor in respect of wakf property is not maintainable before a civil court and must be filed before the Wakf Tribunal.
Judgment Excerpts
The issue raised in this petition by the petitioner, original defendant in Regular Civil Suit No.34/2016, is as to whether, the Civil Court would have jurisdiction to deal with a suit purely filed for injunction in connection with the wakf property.
The decision in Ramesh Gobindram's case says that the bar under Section 85 would not be applicable for the proceedings instituted for injunction simplicitor, upon taking overall review of the provisions of the Wakf Act, 1995.
The Supreme Court in Board of Wakf, West Bengal vs. Anis Fatma has held that, the jurisdiction of the Civil Courts would be ousted, in as much as Section 83(5) of the Wakf Act confers powers on the Wakf Tribunal as are available to the Civil Court under Code of Civil Procedure and thus, has observed that, powers under Order 39 Rule 1, 2 and 2A of CPC of granting temporary injunctions and enforcement thereof would as well vest with Wakf Tribunal.
Procedural History
The respondent filed Regular Civil Suit No.34/2016 for injunction simplicitor in the Civil Court. The petitioner (defendant) filed an objection under exhibit 17 challenging the maintainability on the ground that the suit property is wakf property. The Trial Court framed a preliminary issue on jurisdiction and by order dated 11.06.2018 held the suit maintainable. The petitioner challenged this order by filing Writ Petition No.12083 of 2019 before the Bombay High Court, which was heard and decided on 04.12.2019.
Acts & Sections
- Wakf Act, 1995: 83, 85
- Code of Civil Procedure, 1908: Order XIV, Order 39 Rules 1, 2, 2A
