RAYEES ALAM Vs. ABHAY BHATIKA AND ORS.

JUDGEMENT

(1.) HEARD learned Advocate for the respective parties.

(2.) 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:

(3.) 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.