WAQF MASJID PINDAIN Vs. ATHAR HUSAIN HAIDRI

JUDGEMENT

(1.) This is a first appeal from the order dated 18-2-1984 passed by the learned Special Judge, Lucknow, exercising the powers as an Additional District Judge. The brief facts giving rise to this appeal may be stated thus. There is a waqf under the name and style of Waqf Masjid Pindain having properties attached to the waqf at Lucknow. This includes a mosque and certain shops. The Shia Central Board of Waqfs exercises powers under the U.P. Muslim Waqfs Act, 1960, and it is alleged on behalf of the appellants that in exercise of powers under the aforesaid Act the Board appointed the appellant No. 3 Sri Mujtaba Husain as utwalli of the Waqf. Since the respondents were said to be interfering in the discharge of duties of the Mutwalli (appellant No. 3) a civil suit was filed in the Court of the Munsif (North) Lucknow praying that the defendants be restrained from interfering in the plaintiff's management of the waqf property and realisation of rent from the tenants. In the meantime it appears that the respondent No. 1 had filed a reference before the Waqfs Tribunal constituted under the aforesaid Act and which case was registered as reference No. 76 of 1983. The real point for determination in that reference was as to whether the present respondent No. 1 was the Mutwalli of the Waqf or the appellant No. 3 was a duly appointed Mutawalli. The respondent No. 1 made an application before the learned Munsif praying that the suit was not maintainable and that the dispute was one which was within the jurisdiction of the said Tribunal. The suit was said to be barred by Section 75 of the U.P. Muslim Waqfs Act and various other provisions of the said Act which provide for the relief sought being granted by the Tribunal. The learned Munsif heard the parties on the said application and also considered the objections filed on behalf of the appellants. He found that the suit was not triable by the Civil Court and that the reliefs sought could be validly granted by the Waqfs Tribunal. Holding that the same matter was already pending before the Tribunal in a reference made by the respondent, the Court felt that the plaint should be rejected since what the Tribunal could entertain was a reference and not a suit. A regular first appeal was filed against the aforesaid judgment and decree which came up for hearing before the learned Special Judge. By and large he agreed with the findings recorded by the learned Munsif but he felt that the plaint instead of being rejected should be returned for presentation to the Tribunal which could treat it as a reference and decide the same along with the reference No. 76 of 1983 already pending before it, more so, when the matter involved in both these cases was substantially the same. Parties were directed to appear before the learned Munsif on 14th March, 1984 so that the plaint could be returned to the plaintiffs.

(2.) It appears that the plaintiffs appeared before the Court on the said date and the plaint was returned to them along with the documents filed on behalf of the plaintiffs. Thereafter instead of presenting the plaint before the Waqfs Tribunal the plaintiffs preferred this first appeal from the order contending that the findings recorded by the Courts below were erroneous and that the plaint should not have been rejected nor should have been returned for presentation to proper Court.

(3.) A preliminary objection has been taken on behalf of the respondents to the effect that the first appeal from the order as filed was not maintainable. Main reliance was placed on the provisions of Rule 10-A of O.VII of the C.P.C. as inserted by the amending Act of 1976.