Allowed

Vinod S/O. Khemji Ladaya and Anr. v. the Chief Executive Officer Mah.Stte Wakf Board Aurangabad and Ors.

Bombay HC22 Jul 2010CRA/123/2009

Case brief

AI extract

What is this about?

The Bombay High Court at Aurangabad allowed a Civil Revision Application to set aside an order rejecting an amendment to a plaint. The applicants sought to raise a plea of limitation bar under the Wakf Act. The Court held that since trial had not commenced, the amendment was permissible and allowed the application.

What did the court decide?

The order of the Wakf Tribunal dated 13.07.2009 setting aside the amendment application is set aside. The application for amendment is allowed.

Vinod S/O. Khemji Ladaya and Anr. Vs the Chief… — Civil Procedure and Limitation | Bombay HC (2010)

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( 1 )

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CIVIL REVISION APPLICATION NO. 123 OF 2009

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Vinod s/o. Khimji Lodaya and Anr.

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..Applicants

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Versus

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The Chief Executive Officer and Ors...Respondents

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Shri A.P. Bhandari, Advocate for the applicants.
Shri M.B.W. Khan, Advocate for respondent No.1.
Shri H.V. Patil, Advocate for respondent No.10.

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CORAM : P.R. BORKAR,J.
DATED :22.07.2010

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P.C. :-

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1.This Civil Revision Application challenges order of
rejection below application Exh. 115, for amending plaint in
Suit No. 22 of 2005, by order dated 13.07.2009, passed by the
Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad.

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2.The facts giving rise to this application may be
stated as below :-

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.The suit is filed by the revision applicant for
declaration that the impugned order dated 05.03.2005 under

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( 2 )

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section 54 of the Wakf Act, 1995, passed by the Additional
Collector and Chief Executive Officer, Maharashtra State
Board of Wakf, Aurangabad, is illegal, null & void; and for
injunction not to implement or execute said order.
Initially, the Chief Executive Officer of the Wakf Board made
enquiry under section 54 (3) of the Wakf Act and has come to
a conclusion that 49 persons including present applicants had
made encroachment on the Wakf property pertaining to the
religious institution, namely, Dargah Hazrat Quader Auliya,
situated at C.T.S. No. 12889 at Aurangabad. The order was
for removal of encroachment. In para 5 of the suit, it is
averred by the present applicants that they have been in
possession of the property since 1331 Fasli i.e. 1921 A.D.
It is also alleged that they have possessory title by lapse
of time. The issues were framed at Exh. 102 on 10.08.2007.
Subsequently, there was amendment to the issues and issue No.
4 was re-cast. By proposed amendment sought by the
application Exh. 115, the plaintiffs/revision applicants
sought to raise plea of bar of limitation to the proceeding
under Section 54 of the Wakf Act and it is stated that since
the proceedings are barred by limitation, they are not
tenable.

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( 3 )

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3.Heard Adv. Shri A.P. Bhandari for the applicants,

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Adv.Shri M.B.W. Khan for respondent No.1 and Adv. Shri H.V.
Patil for respondent No.10.

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4.The learned advocate Shri Bhandari argued that as
held in the case of Bhagwandas Kanhaiyyalal Bubna V/s.
Shyamsunder Wasudeo Bubna and Ors., 2010 (1) Bom.C.R. 218in
para 6, until plaintiff files evidence of affidavit, trial
cannot be said to be commenced and in the circumstances, the
amendment which was sought at pre-trial stage ought to have
been allowed. He also relied upon law summarised in para 33
of the case of Bharat Petroleum Corporation Ltd., V/s.
Precious Finance Investment Pvt. Ltd., 2006 (6) Bom.C.R. 510.

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Particularly he referred to sub-paras (iii), (iv), (xi),
(xiii) and (xvi) of para 33, which lay down that Court should
not adopt hyper technical approach and amendment should be
allowed, if other side can be compensated with costs. Unless
the amendment is fraudulent, it should not be rejected. The

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case of Vidyabai & Ors., V/s. Padmalatha & Anr., AIR 2009 SC
1433, is cited for proposition that after filing of affidavit
in lieu of examination-in-chief, trial can be said to have

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( 4 )

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commenced. The reason given for refusing the amendment,
however, mainly is that application at Exh. 115 is given at
belated stage and object is mainly to prolong the litigation.
However, Adv. Shri Bhandari stated that the application is
bona fide and not actuated with any desire to protract the
litigation. He says that he is ready to co-operate for early
hearing and expeditious disposal of the suit. Adv. Shri
M.B.W. Khan and Adv. Shri H.V. Patil for respondent Nos. 1
and 10 respectively are also ready to co-operate.

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5.Adv. Shri M.B.W. Khan has drawn my attention to

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para 107 of the Wakf Act, 1995, which lays down that nothing
contained in the Limitation Act, 1963 (36 of 1963) shall
apply to any suit for possession of immovable property
comprised in any wakf or for possession of any interest in
such property. Said section along with section 27 of the

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Limitation Act, 1963 will have to be examined and
interpreted. Particularly in view of pleading by the
plaintiff that he has been in possession of the property

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since 1921 A.D. and having regard to the circumstances, the
Civil Revision Application deserved to be allowed in the
interest of justice, as trial has not yet commenced. It is

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( 5 )

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argued that for various reasons given in the order, the
matter has been protracted. But, it cannot be said that only
plaintiffs are responsible for the same. For example, when
the plaintiffs gave application Exh. 102 for rectification of
issues, it was found that issue No.4 really deserved
rectification and recasting and that was done by order dated
20.01.2009.

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6.Having regard to all circumstances, this revision
application is allowed. The order passed by the Wakf
Tribunal on 13.07.2009 below application Exh. 115 is hereby
set aside. Application Exh. 115 of amendment of the plaint
is allowed. The amendment be carried out at the earliest and
thereafter the suit to proceed further according to law and
it should be disposed of as expeditiously as possible.

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7.The Civil Revision Application is accordingly
allowed and disposed of.

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snk/2010/JUL10/cra123.09

Vinod S/O. Khemji Ladaya and Anr. v. the Chief Executive Officer Mah.Stte Wakf Board Aurangabad and Ors.

Case brief

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Vinod S/O. Khemji Ladaya and Anr. v. the Chief Executive Officer Mah.Stte Wakf Board Aurangabad and Ors.

Case brief

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