HARYANA WAKF BOARD Vs. GULSHAN VALECHA AND ORS.

JUDGEMENT

(1.) This is defendant's second appeal against the order passed by Additional District Judge, Hisar holding that notice under Section 89 of the Haryana Wakf Act, for short 'the Act', was not necessary and that as plaintiff- respondents having filed a suit without prior notice under Section 89 of the Act, the trial Court should have decided the suit on merits. This order was passed by the first Appellate Court while setting aside the findings of Civil Judge (Junior Division), Hisar that suit of the plaintiff- respondents for injunction against the appellant Wakf Board was not maintainable for want of notice under Section 89 of the Act.

(2.) Brief facts relevant for adjudication of the present appeal are that the plaintiff- respondents had filed a suit for permanent injunction to restrain the defendant-appellant Wakf Board from interfering in the peaceful possession of the shop in dispute except by due process of law claiming themselves to be tenants under the Wakf Board. The trial Court framed seven issues including issue No.4 i.e. "whether suit is bad for want of notice under Section 89 of the Haryana Wakf Act, 1995" and issue No.6 was framed regarding the jurisdiction of the Civil Court. Both these issues were taken as preliminary issues. The suit was dismissed for want of notice under Section 89 of the Act vide order dated March 4, 2013.

(3.) On an appeal having been filed by the plaintiff- respondents before the Appellate Court, the Appellate Court has set aside the findings of the trial Court on preliminary issue No.4 and held that suit was not bad for want of notice under Section 89 of the Act and in the exercise of powers under Order 41 Rule 23 CPC remanded the case to the trial Court directing that the suit will be decided on merits by deciding the other issues. The Wakf Board has preferred this second appeal against the said order claiming that the Appellate Court has not considered the judgment in Rewti Vs. Raj Kumar and another,2010 160 PunLR 456 and Syed Abdul Razzak Aminuddin and anr. Vs. Maharashtra State Board of Wakfs Head Office Panchakki Aurangabad, 2009 5 AllMR 818, a judgment of Bombay High Court, and wrongly held that the suit is maintainable without a notice under Section 89 of the Act.