Dismissed

Syed Sadiq Hasnain v. Mirza Mohammad Akbar and 2 Others

Allahabad HC30 Jan 2019SAPL/1123/2018

Case brief

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What is this about?

The appellant, a tenant, filed a second appeal challenging the dismissal of a suit for permanent injunction against evicting him from waqf property. The second appeal was dismissed because the original suit was barred by Section 89 of the Waqf Act, 1995 for lack of prior notice to the Board and factually barred due to failure to prove tenancy.

What the court decided

AI extract

Syed Sadiq Hasnain Vs Mirza Mohammad Akbar and 2… — Writ and Judicial Review | Allahabad HC (2019)

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Court No. - 16

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Case :- SECOND APPEAL No. - 1123 of 2018

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Appellant :- Syed Sadiq Hasnain Respondent :- Mirza Mohammad Akbar And 2 Others Counsel for Appellant :- Hari Bans Singh

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Hon'ble Rajiv Joshi,J.

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Heard Sri Hari Bans Singh, learned counsel for the appellant.

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It is plaintiff's second appeal arising out of a suit for grant of permanent and mandatory injunction restraining the defendants from evicting the plaintiff. The suit proceeded ex-parte and was dismissed vide judgment and decree dated 31.8.2015.

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The appeal preferred against the judgment and decree passed by the trial court, was too dismissed vide order dated 18.8.2018. Both the orders passed by the courts below are impugned in the present appeal.

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The case of the plaintiff is that he was a tenant of the defendants at the rate of Rs. 40/- per month; he regularly paid the rent to the defendants but they wanted to evict him without following the procedure prescribed under the law.

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The suit has been dismissed ex-parte with the findings that no evidence has been adduced by the plaintiff to establish that he was the tenant of the defendants and even rent receipts in Urdu were filed along with the translated copy of the same in Hindi but no certificate of the same has been filed by the plaintiffappellant. The suit is against the Waqf Property and Shia Central Waqf Board Lucknow U.P. (in short 'Board') is one of the defendants in the suit and yet, the suit has been instituted without giving any notice to the Waqf Board which is mandatory as per Section 89 of the Waqf Act, 1995. Section 89 of the Waqf Board Act, 1995 (in short 'Act') is quoted hereunder:

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Notice of suits by parties against Board . No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

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From the bare reading of the aforesaid Section, it is mandatory

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upon the plaintiff to give notice to the Board before filing the suit. In absence of any notice, the suit filed by the plaintiff is not maintainable. Even otherwise, the plaintiff has also failed to prove his tenancy. In these circumstances, the trial court and the lower appellate court appear to have rightly dismissed the suit and the appeal respectively.

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In view of the above, the present appeal being concluded by findings of fact and the suit also being barred by Section 89 of the Act, there appears to be no illegality or infirmity in the judgment and decree passed by the courts below. No substantial question of law is involved in the appeal.

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In the result, the appeal lacks merit and is accordingly dismissed. No order as to costs.

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Order Date :- 30.1.2019 Akbar

Syed Sadiq Hasnain v. Mirza Mohammad Akbar and 2 Others

Case brief

What is this about?

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Syed Sadiq Hasnain v. Mirza Mohammad Akbar and 2 Others

Case brief

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