Case Note & Summary
The case involves a civil revision application filed by the original plaintiffs against an order of the Waqf Tribunal rejecting their plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (CPC) read with Section 89 of the Waqf Act, 1995. The plaintiffs had filed a suit for perpetual injunction to restrain the Deputy Collector (Atiyat), Parbhani, from taking possession of a property situated at village Karegaon, Taluka and District Parbhani. The Maharashtra State Waqf Board was arrayed as defendant No.2. The plaintiffs pleaded that succession proceedings were pending before the Deputy Collector from 2004, but suddenly on 30.7.2007 and 12.4.2008, the Deputy Collector issued notices for taking possession of the suit land based on an internal communication. The plaintiffs issued notices to both defendants on 2.9.2008 calling upon them not to take further action, and then filed the suit before the statutory period seeking permission to present the suit as the Deputy Collector was taking steps to take possession. The suit also sought quashing of the notice dated 12.4.2008. The Waqf Board filed applications under Order VII Rule 11(d) CPC read with Section 89 of the Waqf Act, contending that the suit was barred because no notice was given two months before filing as required by Section 89. The Waqf Tribunal allowed the applications and rejected the plaint. The High Court, in revision, examined the provisions of Section 89 of the Waqf Act, which mandates that no suit shall be instituted against the Board or its officers in respect of any act done in pursuance of the Act unless two months' notice has been given. The court noted that the plaintiffs' own case showed that they issued notice on 2.9.2008 and filed the suit on 8.9.2008, well before the expiry of two months. The court held that the requirement of notice is mandatory and the suit was premature. The court also rejected the argument of urgency, stating that the plaintiffs could have sought other remedies. The revision application was dismissed, and the order of the Waqf Tribunal was upheld.
Headnote
A) Waqf Law - Pre-suit Notice - Section 89 Waqf Act, 1995 - Mandatory Notice - The suit for perpetual injunction against the Deputy Collector and Waqf Board was filed without serving the statutory two months' notice under Section 89 of the Waqf Act, 1995. The plaintiffs argued urgency due to imminent possession, but the court held that the notice requirement is mandatory and the suit was premature. The plaint was rightly rejected under Order VII Rule 11(d) CPC. (Paras 1-6) B) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Barred by Law - The Waqf Tribunal rejected the plaint on the ground that the suit was barred by Section 89 of the Waqf Act, 1995 as no notice was given two months before filing. The High Court upheld the rejection, noting that the plaintiffs' own pleadings showed the suit was filed before the statutory period. (Paras 1-6)
Issue of Consideration
Whether the suit filed by the plaintiffs was barred under Section 89 of the Waqf Act, 1995 for non-compliance with the mandatory requirement of giving two months' notice before filing the suit against the Waqf Board and Deputy Collector.
Final Decision
The High Court dismissed the civil revision application, upholding the order of the Waqf Tribunal rejecting the plaint under Order VII Rule 11(d) CPC for non-compliance with Section 89 of the Waqf Act, 1995.
Law Points
- Order VII Rule 11(d) CPC
- Section 89 Waqf Act 1995
- mandatory pre-suit notice
- rejection of plaint
- limitation period for notice
