Rayees Alam vs Abhay Bhatika and Others

Ishan Chandra Das, J.—Heard learned Advocate for the respective parties.

Assailing the Order No. 12 dated 19th May, 2014 passed by the learned Presiding Officer, Wakf Tribunal, West Bengal in Suit No. 12 of 2013, the petitioner/defendant stated that the plaintiff/opposite party No. 1 filed the instant suit before the Wakf Tribunal, West Bengal seeking a decree for declaration that the petitioner/defendant No. 1 of the said suit being the Mutwalli of "Zahara Begum Wakf Estate" is bound to act by his agreement of power of attorney executed on 5th March, 2001 comprised of 29 premises, located at Somnath Lahiri Sarani, Kolkata-700053. The petitioner/defendant No. 1 herein by filing an application under Order VII Rule 11(a) & (d) of the Code of Civil Procedure read with Section 151 of the Code prayed for rejection of the plaint of Suit No. 12/2013 on the ground that in the aforesaid suit for declaration and permanent injunction wherein an order was prayed for restraining the defendant No. 3, Board of Wakf, West Bengal from granting any permission of long term lease beyond three years to the Mutwalli for transferring of any of the properties being the subject matter of the suit and other without disclosing sufficient actionable cause.

Mr. Aniruddha Chatterjee, learned Counsel for the petitioner herein at the very outset submitted that the opposite party filed the instant suit against his client and others on the strength of a manufactured agreement without having any sufficient actionable cause. Drawing my attention to the prayer portion of the plaint of the Suit No. 12 of 2013, he urged that the petitioner/defendant No. 1 of the instant suit was bound by the agreement dated 5th March, 2001 and the power of attorney executed by him coupled with further declaration that the plaintiff/opposite party has right to make legal construction on the disputed properties and the petitioner/defendant No. 1 herein is bound to act on the basis of the agreement for development and general power of attorney executed on 5th March, 2001. Drawing my further attention to the para (c) in the prayer portion of the plaint, he further urged that the plaintiff/opposite party No. 1 prayed for several declarations in terms of the prayers as per (c) and (d) of the plaint along with a decree for permanent injunction restraining the defendants of the suit, their men, agents and associates from parting with possession and other consequential relief''s without praying for specific performance of agreement without which no effective decree can be passed. To fortify his arguments in this respect, he brought it to my notice the provisions of Section 34 of the Specific Relief Act and further placing reliance on an unreported decision of this court in the case of Smt. Anjana Gupta vs. Hemant Kumar Pathak (C.O. 402 of 2010) wherein this Hon''ble Court while disposing of the revisional application concerning an application under Order VII, Rule 11(a) & (d) of the Code which was not entertained by the court below and while setting aside the order of the trial court passed in connection with rejection of application under Order VII Rule 11 of the Code of Civil Procedure held that:

"By following the settled principle of law, this court has carefully considered the averments made by the plaintiff in the plaint only for ascertaining the merit of the defendant''s said application. On perusal of the averments made in the plaint, this court finds that though the plaintiff claimed that his request for completion of the said transaction by giving delivery of possession of the suit property was not fulfilled by the defendant and thus the defendant has failed to discharge her obligation to perform her part of the contract in terms of the said agreement, but still then he filed the said declaratory suit without seeking further relief''s by way of specific performance of contract. Thus, if the averments made in the plaint is considered, then this court has no hesitation to hold that the suit is barred under the provision of section 34 of the Specific Relief Act as the plaintiff cannot get the relief which was sought for by him in the said suit without seeking further relief for specific performance of contract therein, particularly when, according to the plaintiff himself, his right for seeking relief for specific performance of contract has already matured."

Accordingly, drawing my further attention to the averments of the plaint as well as the relief''s sought for by the opposite parties herein, he further urged that the plaint filed by the opposite party No. 1 before the learned Tribunal should be summarily rejected in terms of Order VII Rule 11(d) of the Code of Civil Procedure.

Mr. Jahar Lal De, learned Counsel for the opposite party No. 1 herein drawing my attention to the terms of agreement (as per Annexure ''P-2'') submitted that his client filed the instant suit claiming relief''s in terms of prayers as per plaint. He confidently urged that in order to ascertain whether there was any actionable cause for filing the suit has been reflected in the averments of the plaint or not is a mixed question of law and fact and it should be dealt with taking into consideration the facts and circumstances of this case. To advance his argument, he clarified the provisions of Order VII Rule 11(a) & (d) of the Code of Civil Procedure and submitted that the court should consider the averments stated in the plaint with a view to ascertaining the cause of action in the plaint as well as the provisions of law of the land which will, prima facie, appear before the court to be a bar in deciding the merits of the case and giving relief to the plaintiff/opposite party in terms of his prayers as per plaint. He further urged that such course of action can only be possible after conclusion of trial and on recording evidence of both the sides the court can come to such a finding. He also opined that without going into the merits of the case, the court cannot come to a conclusion whether the relief''s claimed in this suit is hit by Section 34 of the Specific Relief Act, as submitted by his learned counterpart.

The provisions of Order VII Rule 11(a) & (d) of the Code of Civil Procedure provides:

" 11. Rejection of plaint. - The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) *** *** ***

(c) *** *** ***

(d) where the suit appears from the statement in the plaint to be barred by any law;"

In this context, he relied on a decision of the Hon''ble Apex Court in the case of Saleem Bhai and Others Vs. State of Maharashtra and Others, and pointed out that as per provisions of Order VII Rule 11 of the Code of Civil Procedure, it was made clear that the relevant facts which need to be looked into for deciding an application under Order VII Rule 11 of the Code of Civil Procedure are the averments of the plaint and opined that the learned trial court can exercise such power at any stage of the suit before registering the plaint or at any time before the conclusion of the trial. In this context, I may quote the decision of the Hon''ble Supreme Court in Saleem Bhai & Ors. vs. State of Maharashtra & Ors. (supra), which reads as follows:

"9. A perusal of Order 7 Rule 11 , C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 , C.P.C. at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7, C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage,..........................."

The learned Counsel for the opposite party No. 3 i.e. Board of Wakf, West Bengal submitted with reference to the provisions of Section 83(5) of the Wakf Act, 1995 and pointed out that the Tribunal is to be treated as a civil court and shall have the same powers to be exercised by a civil court under the Code of Civil Procedure, 1908 in the matter of trial of a suit or executing a decree or order. Further clarifying the provisions of Section 51(1) of the Wakf Act, 1995, he urged that notwithstanding anything contained in the Wakf deed, any lease of any immovable property which is a Wakf property, shall be void unless such lease is effected with the prior sanction of the Board. With reference to the provisions of Section 108A of the Wakf Act, 1995, he submitted that the provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of law other than this Act.

If we consider the facts and circumstances of this case, in the light of the provisions of the Wakf Act, 1995 as quoted above, it cannot be said at this premature stage that the case of the plaintiff/opposite party No. 1 suffers from lack of actionable cause nor it can be said that it is hit by any provision of law and the court can come to such a conclusion after the commencement of trial as pointed out earlier but not at the premature stage of trial. In this context, the decision taken by the learned court below who while disposing of the application under Order VII Rule 11(a) & (d) of the Code of Civil Procedure is quoted hereunder:

"certainly the averment of the plaint should be considered for deciding the instant application for rejection of plaint, it appears to me that the cause of action is a bundle of facts and cause of action has been disclosed by the Plaintiff in Paragraph 25 of the plaint, where it has been stated that the cause of action of the suit first arose in 21.01.2013 when notices issued by Ld. Advocate for the Plaintiff and served upon Defendant No. 1, were refused to be complied with by Defendant No. 1 and thereafter further cause of action arose after expiry of 60 days of the service of notice to Board u/s. 89 of the Wakf Act, 1995. As regards to order 7 rule 11(d) i.e. ''Where the suit appears from the statement of the plaint to be barred by law''. On careful consideration of the statement of plaint it appears to me that the suit is not barred by law at this stage. Accordingly, I have no hesitation to hold that the Defendant No. 1 has miserably failed to establish both the conditions laid down u/o. 7 rule 11(a) and (d) for rejection of the plaint.

Considering the facts and circumstances and in view of my foregoing observations made in the body of the order, I am not inclined to allow the instant petition filed by the Defendant No. 1 for rejection of the plaint. Accordingly, the same is liable to be rejected."

Hence, taking into consideration the facts and circumstances of this case and the observations of the learned trial court in the light of the catena of the decisions of the Hon''ble Apex Court and other Hon''ble Courts, I am of the view that this court while dealing with this revisional application and after examining the order impugned cannot take a different view, particularly when the party applying for rejection of plaint thoroughly and completely satisfies and proves the existence of necessary ingredients of law, in exercise of which entertaining the plaint is not permissible. Since the power conferred on the courts under Order VII, Rule 11 of the Code of Civil Procedure are extra ordinary, drastic, the same is required to be exercised very sparingly with great care & caution and the same should be considered in the light of the pleadings of the plaint. Here, I find no convincing ground to entertain the plea taken by the petitioner/defendant so that the plaint shall be rejected.

Hence, taking into consideration, the facts & circumstances of the case and the relief''s sought for, I find no merit in the instant revisional application and the same is accordingly, dismissed.

I make no order as to costs.

Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.