Arya Prithinidhi Sabha (Punjab) vs Punjab Wakf Board and Others

R.L. Anand, J.—Heard.

This is a R.S.A. and has been directed against the order dated 8.10.1998 passed by the Additional District Judge, Sirsa, who affirmed the order dated 25.3.1998 passed by the Civil Judge (Sr. Divn.), Sirsa.

The brief facts can be described in the following manner:-

Arya Prithinidhi Sabha, Punjab, Jalandhar, through its President Jagdish Shinwar and member Har Lal Arya filed a suit for declaration to the effect that the plaintiff is the owner in possession of the land measuring 30 kanals 10 marlas, along with old structures and Gumads in it, comprised in Khewat No. 850 Khatauni No. 1235, Khasra No. 858 min (30-10), situated near Railway Crossing. Old Court Road, as recorded in the Jamabandi for the year 1991-92 situated at Sirsa, described in the head note of the plaint. The suit was instituted against the Punjab Wakf Board, Arnar Singh, Rachana Devi, Ravinder, Radha Rani, Mahi Pal, Gurmit Kaur, Dr. R.S. Sangwan and Dalip Singh.

During the pendency of the suit before the trial Court, the Punjab Wakf Board filed an application under Order 7 Rule 11, C.P.C. and took an objection that the suit of the plaintiff was bad by virtue of the provisions of Section 89 of the Wakf Act as the statutory notice of two months was not given to the Board before filing the suit. This application was contested by the plaintiff and vide order dated 25.3.1998, the trial Court held that "the present suit is not maintainable and the plaint is liable to be rejected under Order 7 Rule 11 of CPC."

Aggrieved by the order, the plaintiff filed an appeal before the Additional District Judge, who did not find any force in the appeal and dismissed the same. Hence, this second appeal.

I have heard the counsel for the parties.

The learned counsel for the appellant submits that even if, for the sake of arguments, it may be taken that the plaintiff did not give any statutory notice as objected to by the Board, defendant No. 1, still the plaint could not be rejected as a whole. It could only be rejected against defendant No. 1. The learned counsel for the respondents has no answer to this proposition.

Under Order 7 Rule 11, CPC, a plaint can be rejected in the following cases:-

"(a) xx xx xx xx xx xx xx xx

(b) xx xx xx xx xx xx xx xx

(c) xx xx xx xx xx xx xx xx

(d) where the suit appears from the statement in the plaint to be barred by any law..."

If the trial Court came to the conclusion that the mandatory notice was required on the part of the plaintiff, it could reject the plaint of the plaintiff with regard to defendant No. 1 only and not with regard to the other defendants. In this view of the matter, an illegality has been committed by the Court below. The entire suit of the plaintiff has been dismissed.

Resultantly, the present appeal is allowed, the impugned judgment is set aside and the case is remanded back to the trial Court to re-admit the suit to its original number and proceed against defendants 2 to 10. It may be clarified that it will always be open to the plaintiff to file a separate suit against defendant No. 1 after serving a notice and it shall also be open to the defendants No. 2 to 10 to plead before the trial Court that the suit of the plaintiff is bad for non-joinder of the necessary parties.

Parties, through their counsel, are directed to appear before the trial Court on 27.9.1999.