Dismissed

Mohd. Azim and another v. Mohd. Ishaq and others

Allahabad HC10 Sept 2024CLRE/56/2024

Case brief

AI extract

What is this about?

In acivil revision challenging the rejection of an application under Section 83(2) of the Waqf Act, 1995, the court held that a prior notice under Section 89 is not required for such applications, unlike suits under Sections 6 and 7. The revision was dismissed at the admission stage.

What did the court decide?

Revision dismissed at admission stage; no interference with the impugned order regarding the applicability of Section 89 notice.

Mohd. Azim and another vs Mohd. Ishaq and… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:62409

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Court No. - 19

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Case :- CIVIL REVISION No. - 56 of 2024

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Revisionist :- Mohd. Azim And Another Opposite Party :- Mohd. Ishaq And Others Counsel for Revisionist : - Aftab Ahmad Counsel for Opposite Party : - Mohd Kashif Iqbal,Ajit Verma

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Hon'ble Subhash Vidyarthi,J.

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1. Heard Sri Aftab Ahmad, learned counsel for the revisionist, Sri Mohd. Kashif Iqbal and Sri Ajit Verma, learned counsel for the opposite party nos. 1 and 2. Sri Farhan Habib has accepted notice on behalf of the opposite party no. 3 but he has not appeared to assist the Court.

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2. By means of the instant revision filed under Section 83 (9) of the Waqf Act, 1995 (hereinafter referred to as "the Act, 1995") the petitioners have challenged the validity of an order dated 26.3.2024 passed by the U.P. Waqf Tribunal, Lucknow in 22 of 2016 whereby the petitioners' application under Order VII Rule 11 of the C.P.C. for rejection of plaint on the ground that the plaintiffs had filed the suit without giving any notice under Section 89 of the Act, 1995, has been rejected.

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3. Waqf Board has filed objections against the maintainability of the case stating that it was not preceded by the notice under Section 89 of the Act, 1995 and, therefore, it is liable to be dismissed. The petitioners' application and Waqf Board's objection have been decided by the impugned order dated 26.3.2024.

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4. Regarding the Waqf Board's objection, the Waqf Tribunal has held that learned counsel for the Waqf Board has not filed any objection/written statement and the Board's counsel did not press the objection regarding non submission of notice under Section 89 of the Act, 1995 due to which it shall be deemed that he has abandoned the objection regarding notice. Waqf Tribunal further held that the opposite party nos. 2 and 3 (petitioners) cannot raise the plea of non service of notice to the Waqf Board.

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5. Learned counsel for the petitioners has submitted that service of notice under Section 89 of the Act, 1995 is prerequisite for filing any suit and in absence of notice having been served to the Waqf Board, the suit is not maintainable. In

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these circumstances, no useful service would be served in continuance of the proceedings instituted on the basis of the suit, which is not maintainable.

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6. Replying to the aforesaid submissions, learned counsel for the opposite party nos. 1 and 2 has submitted that the requirement of serving a prior notice under Section 89 of the Act, 1995 applies to the filing 'suits', which are filed under Section 6 and 7 of the Act, 1995. What the opposite party nos. 1 and 2 have filed is an application under Section 83 (2) of the Act, 1995 and not a suit filed under Section 6/7 of the Act, 1995 and, therefore, there was no requirement for any prior notice.

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7. Learned counsel for the opposite party nos. 1 and 2 have relied upon a judgment and order dated 27.1.2020 rendered by a Co-ordinate Bench of this Court in Anwar Saeed Vs. Mohd. Arbi & Anr. (Civil Revision No. 59 of 2019) , wherein this Court has held that requirement of notice under Section 89 of the Act, 1995 applies to the suit and not to the proceedings under Section 83 (2) of the Act, 1995.

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8. According, following the decision rendered by the Coordinate Bench in the case of Anwar Saeed (Supra), this Court is of the considered view that there was no requirement of issuance of any notice under Section 89 of the Act, 1995 for filing the applicant under Section 83 (2) of the Act, 1995. Thus, there was no good ground for making any interference in the order dated 26.3.2024 in exercise of revisional jurisdiction of this Court under Section 83 (9) of the Act, 1995, accordingly, the revision is dismissed at the admission stage.

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[Subhash Vidyarthi,J.]

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Order Date :- 10.9.2024 A nuj S ingh

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Digitally signed by :- ANUJ PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Azim and another v. Mohd. Ishaq and others

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Mohd. Azim and another v. Mohd. Ishaq and others

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