Dismissed

Syeda Fathima Begum v. Mir Fazle Ali Khan

Telangana HC25 Jan 2011CRP/5410/2008

Case brief

AI extract

What is this about?

This Court dismissed the civil revision petition challenging the trial Court's order refusing to issue a summons for the defendant's cross-examination. The Court held that issuing summons at the interlocutory stage was unwarranted as the documentary evidence was sufficient and the preliminary jurisdiction issue remains pending.

What did the court decide?

Civil Revision Petition is dismissed. No order as to costs.

Syeda Fathima Begum Vs Mir Fazle Ali Khan — Property and Title | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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CIVIL REVISION PETITION No.5410 OF 2008

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DATED: 25-01-2011

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Between:

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Syeda Fathima Begum.

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.... PETITIONER

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And

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MIR Fazle Ali Khan & 2 others.

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.... RESPONDENTS

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ORDER:

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This Civil Revision Petition is filed assailing the order, dated 07-08-2008, in I.A.No.973 of 2007 in I.A.No.631 in O.S.No.89 of 2005 on the file of the learned Junior Civil Judge, Banaganapalle, wherein the said application filed by the petitioner herein and other plaintiffs-respondents 2 and 3 seeking issuance of summons to the 1^st respondent herein for crossexamining him in I.A.No.603 of 2007, was dismissed.

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2. Heard the learned counsel for the petitioner and learned counsel for the 1^st respondent. Perused the record.

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3. Petitioner and the respondents 2 and 3 herein filed the suit-O.S.No.89 of 2007 for declaration of title and for permanent injunction against the 1^st respondent hereindefendant in respect of the plaint schedule property. 1^st respondent herein filed written statement contending that the suit property is a Wakf property and the Court has no jurisdiction to try the suit and the matter has to be referred to the Wakf Tribunal for adjudication. The 1^st respondentdefendant filed I.A.No.663 of 2007 seeking dismissal of the suit on the ground that the civil Court has no jurisdiction and the matter has to be adjudicated upon by the Wakf Tribunal. The said I.A.No.603 of 2007 is stated

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to be pending. Meanwhile, petitioner filed I.A.No.973 of 2007 seeking issuance of summons to the defendant for the purpose of cross-examination. The trial Court, after hearing both sides, dismissed the said application on the ground that cross-examination of witness at the threshold stage is not warranted and I.A.No.603 of 2007 can be disposed of based on the documents filed by both parties.

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4. The question as to whether or not the civil Court has jurisdiction to deal with the matter and whether or not the matter is liable to be referred to the Wakf Tribunal for adjudication is a matter to be considered by the trial Court in I.A.No.603 of 2007, which is still pending.

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5. Learned counsel for the petitioner would submit that the aspect of jurisdiction is a matter to be adjudicated upon by way of preliminary issue. The defendant filed I.A.No.603 of 2007 under the provisions of Sections 83 and 85 of the Wakf Act, questioning the maintainability of the suit before a civil Court. The trial Court has therefore to deal with the said matter while disposing of I.A.No.603 of 2007. The question of framing a preliminary issue at this stage does not arise and the trial Court is within its competence to deal with the issue of jurisdiction and maintainability of the suit before the civil Court in I.A.No.603 of 2007. The present application I.A.No.973 of 2007 is filed by the plaintiff seeking issuance of summons to the defendant for the purpose of cross-examination. The trial Court in its discretion has held that the documents placed on record are sufficient to deal with the matter and there is no need to record the oral evidence. There are absolutely no valid or justifiable grounds to

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interfere with the discretion so exercised by the trial Court in holding that the oral evidence is not required at this stage in view of the availability of documentary evidence on record.

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6. Order XVI Rule 1 CPC deals with issuance of summons to witnesses for the purpose of recording the evidence during trial and after the date on which the issues were settled. That stage has not reached in the present case. In the circumstances, it is held that the impugned order does not call for any interference of this Court in exercise of the revisional jurisdiction as there is no illegality or irregularity committed by the trial Court in refusing to issue summons at the interlocutory stage in exercise of its discretionary powers.

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7. In the result, Civil Revision Petition is dismissed. There shall be no order as to costs.

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_______________________ G.V.SEETHAPATHY, J

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25^th January, 2011. Tsy

Syeda Fathima Begum v. Mir Fazle Ali Khan

Case brief

What is this about?

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Syeda Fathima Begum v. Mir Fazle Ali Khan

Case brief

What is this about?

What did the court decide?

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