Sayed Asif Ali Danishi Vs Chairman, Sunni Central Waqf Board, U.P., Lucknow and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CIVIL REVISION No. - 44 of 2023

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Sayed Asif Ali Danishi

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.....Revisionist(s)

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Versus

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Chairman, Sunni Central Waqf Board, U.P., Lucknow And Another .....Opposite Party(s) Counsel for Revisionist(s) : Karuna Shanker Rastogi, Mohammad Aslam Khan Counsel for Opposite Party(s) : Farhan Habib, Anuj Pratap Singh, Anwar Alam, Rakesh Kumar

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Along with :

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1. Civil Revision No. 50 of 2018: Sayed Asif Ali Danishi Versus Chairman Sunni Central Waqf Board Lko and Anr.

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Court No. - 6

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HON'BLE JASPREET SINGH, J.

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Heard Shri Mohd. Arif Khan, learned Senior Counsel along with Shri Karuna Shanker Rastogi, learned counsel for the revisionist and Shri Farhan Habib, learned counsel for the respondent No.1. Though, the names of several counsel have been shown as counsel for the privaterespondent in both the revisions, however, none has put in appearance on behalf of the private-respondent No.2, accordingly, the Court has proceeded to hear learned counsel for the appearing parties on merits.

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In order to appreciate the controversy involved in the instant two revisions, it will be appropriate to take a chronological bird's eye view of the facts.

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The disputes arose between the parties when the Waqf Board on 01.02.2011 passed an order relating to Dargah Hazrat Makhdoom Sheikh Sarang Saheb, Waqk No.103, Barabanki (hereinafter referred to as 'Waqf

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No.103') and by the said order Sayed Asif Ali Danishi (the revisionist) was appointed as a Mutawalli of Waqk No.103 and he was also permitted to reconstruct/construct the tombs and other necessary buildings of Saints buried in Dargah, without causing any encumbrance on the Waqf. In furtherance of the order dated 01.02.2011, a office memorandum was also issued by the Waqf Board on 01.02.2011 itself.

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One of the contesting parties, who had raised his claim before the Waqf Board, namely, Pirzada Sayyed Ishrat Ali, being aggrieved with the order dated 01.02.2011, invoked the jurisdiction of the Civil Court by filing a suit title as 'suit for a declaration and permanent injunction', which came to be registered as R.S. No.37/2011. In the said suit, the privaterespondent had sought a relief of declaration against the revisionist herein (who was the defendant No.1 in the suit) that the plaintiff had rights in the Waqf No.103, Barabanki. Another relief claimed was for injunction restraining the private-respondents, his associates from raising any canopy over the tomb of the father of the private-respondent.

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While the aforesaid suit remained pending, the same plaintiff (the private-respondent herein) filed another suit before the Civil Court bearing R.S. No.55/2011. It was titled as a petition under Section 83(2) of the U.P. Waqf Act, 1995 (in short, 'the Act of 1995') assailing the order passed by the Waqf Board dated 01.02.2011, whereby the revisionist herein was appointed as a Mutawalli. In the second suit, the plaintiff sought the relief that the order dated 01.02.2011 be set aside and the plaintiff be declared and made a bonafide Mutawalli of the said Dargah in question.

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While two suits were pending before the Civil Court, the revisionist herein moved an application under Order VII Rule 11 CPC in R.S. No.37/2011 (the first suit) and primarily raised the following grounds:-

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(i) no specific relief has been sought by the plaintiff and while seeking a decree of declaration unless clear right or legal character is pleaded for the grant of relief under Section 34 of the Specific Relief Act, it could not be granted.

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(ii) the second ground in the application was that the plaint did

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not disclose any cause of action.

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(iii) It was also stated that the suit was barred in terms of Section 85 of the Act of 1995.

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(iv) Since the plaintiff had not issued or served any notice to the Waqf Board as contemplated in terms of Section 89 of the Act of 1995, hence, the plaint was liable to be rejected.

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(v) Apart from the aforesaid another feeble grounds relating to the valuation of the suit and payment of Court fee was also raised.

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In the meantime, the private-respondent No.2 filed his objections to the application under Order VII Rule 11 CPC and also moved an application under Order VI Rule 17 CPC seeking amendment in the plaint relating to the first suit bearing R.S. No.37/2011.

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In the aforesaid backdrop while the matter was pending before the Civil Court, the Uttar Pradesh Waqf Tribunal (in short, 'the Tribunal) was constituted. Accordingly, both the suits, at the given stage, were transferred before the Tribunal and from this point onwards, the proceedings proceeded before the Tribunal. The Tribunal first considered the application for amendment moved in R.S. No.37/2011 and the same came to be allowed by means of the order dated 09.05.2017. It will not out of place to mention here that this order whereby the amendment was allowed vide order dated 09.05.2017 was not assailed by the revisionist and the same attained finality.

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Thereafter, it came the turn for considering the application under Order VII Rule 11 CPC and it did not find favour with the Tribunal and the application was dismissed vide order dated 13.06.2018 against which the revisionist preferred Civil Revision No.50/2018.

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Insofar as the other suit was concerned, since there was an interim order, which the Tribunal taking note of the decision of the Apex Court in Asian Resurfacing of Road Agency (P) Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299 found that the interim order passed in

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the other suit was operating beyond six months and its operation came to an end as per the dictum of the Apex Court, hence, the interim order granted by the High Court dated 21.08.2018 was treated having lapsed by the Tribunal and it directed the matter to proceed on merits. This order dated 29.03.2023 passed by the Tribunal ignoring the interim order passed by the High Court, in light of the decision of the Apex Court in Asian Resurfacing (supra), came to be challenged in Civil Revision No.44/2023 and it is in this factual backdrop that both the revisions are before this Court for consideration.

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At the very outset, it may be noticed that insofar as the Civil Revision No.44/2023 is concerned that has lost its efficacy inasmuch as the Tribunal cannot be faulted from following the dictum of the Apex Court in the case of Asian Resurfacing (supra) at the relevant time as much thereafter this very issue was reconsidered by the Apex Court in High Court Bar Association, Allahabad v. State of U.P. and others, (2024) 6 SCC 267 , wherein the position was clarified.

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In the meantime, the matter proceeded before the Tribunal and thereafter there was no stay by this Court in the revision, thus, now no adjudication is required in Civil Revision No.44/2023 , which stands disposed of for the reason that it has become redundant.

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The core controversy which remains to be decided is in context with Civil Revision No.50/2018, examining the order passed by the Tribunal dated 13.06.2018, whereby an application under Order VII Rule 11 CPC, filed by the revisionist, has been rejected.

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Shri Mohd. Arif Khan, learned Senior Counsel along with Shri Karuna Shanker Rastogi, learned counsel for the revisionist has vehemently urged that the suit bearing No.37/2011 was patently barred. A three fold submission has been raised by the learned Senior Counsel for the revisionist:-

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(i) first and foremost, since the Waqf Board was a party, hence, without serving a notice to the Board under Section 89 of the Act of 1995 and waiting for time period to expire, the plaint itself could not have been entertained and for the said reason

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the plaint was barred by law.

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(ii) the second ground raised by the learned Senior Counsel for the revisionist is that no cause of action was disclosed in the suit coupled with the fact that vague assertions were made and even the relief claimed could not be granted either by the Civil Court or the Tribunal. Hence, the plaint was liable to be rejected.

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The third submission as advanced by the learned counsel for the revisionist is the fact that while the revisionist had filed an application under Order VII Rule 11 CPC, the privaterespondent was aware of the obstacle and, therefore, he moved an application for amendment trying to overcome the obstacle sought a change in the cause title and sought deletion of the word 'suit for declaration', rather got it amended as 'a reference' and this was also bad as once the Court or Tribunal did not have the jurisdiction to entertain the suit, then, it did not have the jurisdiction to consider and allow the amendment.

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Elaborating the aforesaid submissions, it has been urged by the learned counsel for the revisionist that initially the suit which came to be filed was in the nature of declaration and injunction. Such declaration and injunction, if relatable to a Waqf, was not maintainable before the Civil Court and by virtue of Section 83(2) of the Act of 1995 could only be entertained by the Tribunal.

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It has also been urged that assuming if the suit was maintainable, but the fact remains that in terms of Section 85 of the Act of 1995, the jurisdiction of the Civil Court was barred and for the said reason also the Civil Court did not have the jurisdiction to entertain the suit and the plaint was liable to be rejected outright.

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It is urged that even taking the amendment as it is even then the legal hurdle could not be overcome since the Act of 1995 in terms of Section 83(2) does not contemplate either a suit or a reference rather the invocation of powers of the Tribunal can be in context of an application and, therefore, terming it as a reference also excluded the jurisdiction and

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thus these facts which were apparent from the bare perusal of the plaint itself and for the given reasons, the suit could not have been entertained apart from the fact that though these points were pressed before the Tribunal, but the submission and its consideration it did not find place in the impugned order dated 13.06.2018, accordingly, the impugned order stands vitiated for all the aforesaid reasons.

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Shri Farhan Habib, learned counsel for the respondent No.1 while refuting the aforesaid submissions has pointedly informed that insofar as the bar of Section 89 of the Act of 1995 is concerned, that plea is party specific for the benefit of the Board and it cannot be extended to the private-respondent/defendant of the suit.

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It has also been urged that insofar as the bar of jurisdiction of the Civil Court as provided under Section 85 of the Act of 1995, but the said Section was amended and incorporated in the year 2013, whereas the instant two suits were filed in the year 2011, therefore, the said bar would not operate against the respondents.

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The Court has considered the rival submissions and also perused the material on record.

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Insofar as the facts are concerned, there is not much dispute between the parties inasmuch as the impugned order has to be seen within parameters and scope of indulgence as can be granted in terms of Order VII Rule 11 CPC.

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Before proceeding further, it will be appropriate to notice certain decisions of the Apex Court, wherein the scope of Order VII Rule 11 CPC has been considered and the aforesaid decisions are (i) P. Kumarakurubaran v. P. Narayan and others, 2025 SCC OnLine SC 975, (ii) Smt. Uma Devi and others v. Anand Kumar and others, AIR 2025 SC 1670, (iii) Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2024) 3 SCC 137, (iv) Saleem Bhai Vs. State of Maharastra : (2003) 1 SCC 557; (v) Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510 as well as judgments of this court in (vi) Jagdish Chandra and others v. Krishna Mohan Aggrawal and others, 2020 SCC OnLine All 2669 and (vii)

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Mudit Verma v. Ram Kumar, 2018 SCC OnLine All 3411 , wherein this Court has dealt with the law of Order VII Rule 11 CPC.

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Having noticed the scope within which the application under Order VII Rule 11 CPC can be considered, it can succinctly be said that it is only on meaningful and complete reading of the plaint without adding or subtracting any fact, or considering any part of defense except the plaint and documents filed by the plaintiff and from its bare perusal, if it is found that the suit/plaint is barred by any specific provision of law or no cause of action is disclosed, the plaint can be rejected.

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However, insofar as the bar relating to deficiency of Court fee and incorrect valuation is concerned, that cannot be a ground for rejection of plaint, unless it could be pointed out specifically and after having afforded an opportunity to a party to correct the same by the Court yet it is not done, only then the said provision could be imported for rejecting the plaint.

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Learned Senior Counsel as well as Shri Rastogi could not point out as to what was the defect insofar as the valuation and the Court fee is concerned. Thus, to state that even though the said issue was raised in the application under Order VII Rule 11 CPC and it was not specifically dealt with by the Tribunal cannot be a ground to interfere in the impugned order, moreover, it cannot also be said to have caused any prejudice to the revisionist. However, the fact that the issue generally relating to inadequate valuation or Court fee can always be decided after framing of an issue in case if any party seriously wishes to pursue it, moreover when the aforesaid deficiency in Court fee or defect of valuation does not impact the jurisdiction of the Court insofar as pecuniary jurisdiction and deficiency of Court fee is concerned, then such party cannot be said to be aggrieved to permit a challenge by filing a revision.

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Now considering the other ground that has been raised by the counsel for the revisionist relating to the bar of Section 89 of the Act of 1995, is concerned, from a bare perusal of the said Section 89 of the Act of 1995, it would indicate that the same is for the benefit of the Board.

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Now once, Shri Farhan Habib, learned counsel for the respondent

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No.1, has candidly submitted that the Waqf Board did not raise any such objection regarding want of notice in terms of Section 89 of the Act of 1995 to the Board this plea does not come to the aid of the revisionist.

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Be that as it may, this issue can also be seen with another angle inasmuch as Section 80 CPC provides that no suit against the Government can be instituted without furnishing a notice. There are a plethora of decisions of the Apex Court where it has been held that the said provision is for the benefit of the Government and this objection cannot be raised by a private-party. This Court in Committee of Management, Jami Masjid, Sambhal Ahmad Marg Kot Sambhal v. Hari Shankar Jain and others, 2025 SCC OnLine All 6268 has also taken note of the aforesaid provision and has held that bar of Section 89 of the Act of 1995 is personal to the Waqf Board and unless taken by the Waqf Board it is not open for the private-respondent to raise such an issue and for the said reason, the submission of the learned Senior Counsel that the plaint was barred in terms of Section 89 of the Act of 1995 does not find favour with this Court.

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The other issue relating to the bar of jurisdiction of the Civil Court is concerned, that also does not impress this Court for more than one reasons. From a bare perusal of the plaint of the two suits, which have been filed and have been brought on record as Annexure No.4 and Annexure No.5 respectively with the paper-book, if seen, it would indicate that they are referable to the Waqf Board, but at that point of time, since the Tribunal was not functioning, hence, such powers were being exercised by the Civil Courts and it is in that context that the name of Court of Civil Judge, who was seized with the matter was indicated in the cause title. The other reason is that once the powers of Waqf Board were being exercised by the Civil Judge in absence of functioning of the Tribunal, it cannot be said that the Civil Court had no jurisdiction to entertain the said suits in light of Section 85 of the Act of 1995, hence, for the aforesaid reasons, the submission of the learned counsel for the revisionist does not find favour with this Court and is accordingly turned down.

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Considering the next ground regarding no cause of action, if seen

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carefully, it would indicate that in the suit bearing R.S. No.37/2011, which was initially instituted as a suit seeking declaration and injunction, clearly, in Para-9 to 13 and in Para-16 has made specific pleadings regarding the cause of action which necessitated filing of the said suit. Whether on the given set of facts, the relief could or could not be granted, is a subject matter of trial.

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As already noticed in the dictum of the Apex Court relating to law under Order VII Rule 11 CPC, it would indicate that the plaint is to be taken as a whole and sentences cannot be culled out in isolation. It is considering the fact that assuming what the counsel for the revisionist states that the relief of declaration has been prayed against the privaterespondent and it is vague as no clear right has been pleaded, again is a subject matter of trial, where the parties can lead their evidence to indicate their respective rights.

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Significant feature relating to Suit No.37/2011 is that apart from seeking a relief of declaration, a relief of injunction has also been sought. It has clearly been pleaded that the cause of action for the said suit accrued on 03.02.2011, when the private-respondent had started raising a canopy over the tomb of the father of the plaintiff. It is now too well settled to be disputed that a suit where more than one relief has been claimed and though one relief amongst other relief prayed cannot be granted yet the plaint cannot be rejected as the rejection of the plaint is as whole and not in piecemeal. This aspect has already been noticed above in the decision of Karam Singh v. Amarjeet and others, 2025 SCC OnLine SC 2240 , the aforesaid submission also does not come to the aid of the revisionist.

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Much emphasis was laid by the learned Senior Counsel that the suit was not maintainable and while moving an application for amendment in order to overcome the obstacle under Order VII Rule 11 CPC, a suit was then titled 'as a reference' and since a reference is not provided in terms of Section 83(2) of the Act of 1995, hence, on this ground also, the plaint should have been rejected. This submission is per se misconceived. It is not the nomenclature of a petition which determines the jurisdiction of the Court. Even if an incorrect provision has been quoted, but the fact

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remains if the said authority or Court is possessed with jurisdiction to entertain, then it cannot be said that by quoting incorrect or a wrong provision, jurisdiction of the Court or the Tribunal concerned is denuded.

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Learned counsel for the revisionist referred to the decision of the Apex Court in T. Arivandandam v. T.V. Satyapal and another, AIR 1977SC 2421 , wherein reliance has been placed on the observations that the plaint can be rejected only on a meaningful reading of the plaint and a party is not entitled to create an illusion of cause of action to get over the bar of under Order VII Rule 11 CPC. Though, this Court is in full agreement with the observations which have followed the test of time and even till the decisions rendered by the Apex Court in the year 2025, the aforesaid proposition still continues to hold good, but what is doubtful is its applicability to the instant case. Apparently, there is no averment in the plaint which if taken at its face value amounts to not disclosing any cause of action, hence, the said decision does not come to the aid of the revisionist.

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Reliance has also been placed on a decision of the Apex Court in Bhanwar Lal and others v. Rajasthan Board of Muslim Wakf and others, (2014) 16 SCC 51 , wherein the Apex Court had considered threadbare the issue relating to exercise of jurisdiction by the Tribunal vis-a-vis the Civil Courts. While doing so, the Apex Court has relied upon the earlier decision of Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 . With due respect to the aforesaid decision the fact still remains that it has no applicability in the instant case for the reason that there is no case of overlapping jurisdiction. The suit bearing R.S. No.37/2011 is alleged to have been filed in the Civil Court as it was seeking a decree of declaration and injunction and only when the revisionist had raised the objection under Order VII Rule 11 CPC that application for amendment was moved.

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Be that as it may, the application for amendment came to be allowed by the Tribunal and admittedly that said order of amendment was not challenged and the revisionist acceded to the same, hence, the said argument of patent lack of jurisdiction does not come to the aid of the revisionist.

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There is another angle to look at the factual controversy that if the suit was instituted before a wrong forum and the Court which is empowered to exercise its power under Order VII Rule 10 CPC, it could return the plaint to be presented before the appropriate Court, however, the said eventuality did not arise for the reason that in the meantime the Tribunal got functional and the matters were transferred from the Civil Courts to the Tribunal. Admittedly, on the date when the suit of 2011 was instituted, the Tribunal was not in functioning. It is for that reason that the suit was filed in Civil Court, who was granted the jurisdiction to entertain matters for the Waqf. Thus, the said decision also does not come to the aid of the revisionist.

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Thus, for the detailed discussions and for the aforesaid reasons, this Court finds that there is no merit in the revision bearing Civil Revision No.50 of 2018 which is accordingly dismissed and Civil Revision No.44 of 2023 shall stand disposed of . There shall be no order as to costs.

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(Jaspreet Singh,J.)

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December 4, 2025

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Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Sayed Asif Ali Danishi v. Chairman, Sunni Central Waqf Board, U.P., Lucknow and Another

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Sayed Asif Ali Danishi v. Chairman, Sunni Central Waqf Board, U.P., Lucknow and Another

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