AMIR ABDUL RASHEED Vs. ABDUL HALEEM

JUDGEMENT

(1.) The present second appeal is directed against the judgment dated 30.03.2015 passed by the First Appellate Court, namely the ASCJ, Central District, Tis Hazari Courts, Delhi in RCA No.8/2013 preferred by the respondent/ plaintiff. By the impugned judgment, the First Appellate Court has set aside the order dated 27.02.2013 passed by the Trial Court, namely the Civil Judge, Central-03, Tis Hazari Courts, Delhi, whereby the plaint of the respondent/ plaintiff was rejected by invoking Order VII Rule 11 CPC.

(2.) The respondent/ plaintiff filed the suit in question to seek permanent & mandatory injunction and rendition of accounts against the appellant/ defendant on the premise that his father late Maulana Abdul Salam Bastawi had created a Wakf, which is presently been managed by the defendant his nephew. The plaintiff discloses that he is in occupation of a room/ hall having his belongings, almirahs, books, etc. in the suit property. As per the said plaint filed by him, he was having a driving license, LPG connection, license for manufacturing small electronic goods issued by the MCD and electricity connection, etc., which showed his occupation of the suit property. He stated that he used to visit the property for carrying on research work in the library of late Maulana Abdul Salam Bastawi, which is a private Wakf. His grievance was that the defendant had, however, prohibited his entry into the premises, particularly into the portion where his belongings and books are kept in the library of late Maulana Abdul Salam Bastawi, as shown in the plan. Upon his being beaten up, he had filed a police complaint on 13.05.2012. He claimed that late Maulana Abdul Salam Bastawi had given the books/ library for the private Wakf. He claimed that being a descendant of late Maulana Abdul Salam Bastawi, he has the right to visit the library of late Maulana Abdul Salam Bastawi and enjoy the benefits of the Wakf properties. He also raised a grievance that the defendant is raising unauthorised construction in the suit property. He also raised a grievance that his letter box was also removed from the property, and his signboard of "Islamic Research & Guidance Centre" had also been removed by the defendants. Consequently, he filed the suit claiming the following reliefs:

(3.) The appellant/ defendant filed an application under Order VII Rule 11 CPC, which, as aforesaid, was allowed by the Trial Court. The Trial Court, while allowing the application, observed that the plaintiff was seeking rendition of accounts of Wakf and injunction against construction of the Wakf property. Section 85 of the Wakf Act was relied upon to say that the said provision bars jurisdiction of the Civil Courts in respect of any dispute, question and matter relating to Wakf and Wakf property. Reliance was placed on the Madras High Court judgment in Salam Khan & Others Vs. Tamilnadu Wakf Board, Chennai, 2005 AIR(Mad) 241. He also relied upon the judgment of the Supreme Court in Dhulabai & Others Vs. State of M.P., 1969 AIR(SC) 78, wherein it was held that if a dispute falls within the ambit of Section 85 of the Wakf Act, the Civil Court had no jurisdiction. Consequently, the plaint was rejected.