SWARAN SINGH Vs. MUSLIM WELFARE COMMITTEE AND ORS.

JUDGEMENT

(1.) Petitioner has filed this petition challenging the order dated 07.03.2014 whereby application moved by the petitioners under Order 7, Rule 11 Code of Civil Procedure 1908 (CPC in short) for rejection of the plaint, was dismissed.

(2.) Learned counsel for the petitioner has submitted that although the application had been filed by the petitioner under Order 7, Rule 11 CPC for rejection of the plaint on the ground of limitation and deficiency in Court Fee but petitioner could not urge before the trial court that the Civil Court has no jurisdiction to try the same. Learned counsel for the petitioner has further submitted that it was the case of the plaintiff that the property in dispute was Wakf Property. Since the suit property was alleged to be a Wakf Property by the plaintiff, the plaintiff could only approach the tribunal constituted under the Wakf Act, 1995 for redressal of his grievance. In fact the suit filed by the plaintiff was not maintainable. In this regard learned counsel for the petitioner has placed reliance on decision of the Apex Court in Haryana Wakf Board v. Mahesh Kumar, 2014 1 RCR(Civ) 311.

(3.) Respondent No.1 has filed suit for permanent injunction restraining the defendants from altering the nature of the suit land or dismantling the old construction. During the pendency of the suit, petitioner moved an application under Order 7, Rule 11 CPC. The case of the petitioner was that the plaintiff had failed to affix the advolerum court fee on the plaint and the plaintiff had no cause of action to file the suit and the suit was time barred. Application moved by the petitioner was dismissed vide the impugned order. A perusal of the impugned order as well as the application (Annexure-P3) reveals that the petitioner could not urge before the trial court that the Civil Court had no jurisdiction to try the suit. The objection now sought to be taken by the petitioner would go to the root of the matter.