Case Note & Summary
The applicant, M/s Nirmal Associates, a partnership firm, filed a Civil Revision Application against the order of the Maharashtra Waqf Tribunal, Aurangabad, dated 9.4.2008, which rejected the plaint in Suit No.53/2005 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). The background of the case is that the Chief Executive Officer of the Maharashtra Waqf Board had passed an order on 1.9.2005 under Section 54 of the Waqf Act, 1995, directing the applicant to remove an alleged encroachment on Waqf land within 15 days, failing which the encroachment would be removed through the Sub-Divisional Officer. Aggrieved by this order, the applicant filed Suit No.53/2005 before the Waqf Tribunal challenging the action and orders of the Chief Executive Officer and seeking a declaration that the order was null and void. The respondent, Maharashtra Waqf Board, filed an application under Order VII Rule 11 CPC for rejection of the plaint on the ground that the suit was filed without giving notice under Section 89 of the Waqf Act, 1995. The Tribunal allowed the application and rejected the plaint. The legal issue before the High Court was whether the suit was maintainable without prior notice under Section 89 of the Waqf Act. The applicant argued that the notice requirement was not mandatory and that the suit was maintainable. The respondent contended that Section 89 is mandatory and the plaint was rightly rejected. The High Court analyzed the provisions of Section 89 of the Waqf Act, which requires two months' notice before instituting a suit against the Waqf Board. The Court held that the provision is mandatory and the suit filed without such notice is not maintainable. The Court further held that the Tribunal correctly rejected the plaint under Order VII Rule 11 CPC as the suit was barred by law. The revision application was dismissed, and the order of the Tribunal was upheld.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Mandatory Notice - Section 89 of Waqf Act, 1995 - The suit filed by the plaintiff against the Waqf Board without serving a notice under Section 89 of the Waqf Act, 1995 is not maintainable. The provision of Section 89 is mandatory and the plaint is liable to be rejected under Order VII Rule 11 CPC for non-compliance. The Tribunal's order rejecting the plaint was upheld. (Paras 1-10) B) Waqf Act - Notice - Section 89 Waqf Act, 1995 - Mandatory Requirement - The requirement of giving two months' notice before instituting a suit against the Waqf Board is mandatory and cannot be waived. The suit filed without such notice is premature and the plaint must be rejected. (Paras 5-10)
Issue of Consideration
Whether the suit filed against the Maharashtra Waqf Board without giving notice under Section 89 of the Waqf Act, 1995 is maintainable and whether the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the Civil Revision Application and upheld the order of the Maharashtra Waqf Tribunal dated 9.4.2008 rejecting the plaint under Order VII Rule 11 CPC for want of notice under Section 89 of the Waqf Act, 1995.
Law Points
- Notice under Section 89 of Waqf Act
- 1995 is mandatory before filing suit against Waqf Board
- Rejection of plaint under Order VII Rule 11 CPC for non-compliance of statutory notice
- Section 89 of Waqf Act
- 1995 is a mandatory provision
