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Judgment
Rakesh Kumar Jain, J.—This appeal is directed against order dated 10.7.2008 passed by Collector, Zira whereby an application filed under Order 6 Rule 17 of the CPC (for short ''CPC'') for amendment of the plaint has been allowed and simultaneously application filed by the defendant-petitioner under Order 7 Rule 11 CPC has also been ordered to have become infructuous.
The case set up by the plaintiff is that the land in question was earlier Kabristan before partition of the country. He also refers to a copy of jamabandi for the year 2002-2003 pertaining to the land in question in which in the column of ownership ''Punjab Wakf Board'' is recorded and in the column of cultivation ''Makbuja Ahle Islam''.
Learned Counsel for the petitioners has submitted that they had filed an application on 7.3.2008 under Order 7 Rule 11 CPC on the ground that if the land is recorded as Gair Mumkin Kabristan and is owned by Punjab Wakf Board, the suit in the present form is not maintainable as the proper forum would be the Tribunal constituted under the Wakf Act, 1995. It is submitted that after the petitioners had filed an application, the plaintiff filed an application for amendment of plaint on 7.4.2006 in order to incorporate para 12-A which reads as under:
Darshan Singh died 3/4 years ago leaving behind defendants No. 1 and 2. None of the defendant is employee of the plaintiff Gurudwara. A duly demand to vacant the property in dispute is duly made by the plaintiff Gurudwara through a registered notice dated 12.11.2007 and received by the defendant on 15.11.2007. Thus, the cause of action arose to the plaintiff after lapse of one month''s period from the receipt of said notice and arises daily.
The basic grievance of the petitioners is that while allowing the application under Order 6 Rule 17 CPC the learned court below has erred in disposing of the application filed by the petitioner under order 7 Rule 11 CPC as infructuous though his grievance is still alive in view of Order 7 Rule 11(d) of CPC which has to be adjudicated by the Civil Court.
As against this, learned Counsel for the respondents has argued that insofar as the amendment is concerned that has been correctly allowed by the learned trial Court and insofar as application under Order 7 Rule 11 CPC is concerned that has become infructuous for the reason that in the written statement his entire plea is with regard to cause of action.
I have heard learned Counsel for the parties and have perused the record with their assistance.
Undoubtedly, the application filed under Order 6 Rule 17 CPC is prior to time i.e. 7.3.2008 to which reply was filed by the plaintiff/respondents on 7.4.2008 who had simultaneously filed an application under Order 7 Rule 11 CPC on 7.4.2008 which was replied by the petitioners on 15.4.2008 on which the impugned order has been passed and in that process, application under Order 7 Rule 11 CPC has been rendered infructuous.
To my view, the impugned order suffers from exercise of jurisdiction as the averments made in both the applications i.e. under Order 6 Rule 17 CPC and Order 7 Rule 11 CPC are altogether different and have to be adjudicated separately and for that reason alone application filed under Order 7 Rule 11 CPC does not become infructuous because it is yet to be decided whether the plaint is to be rejected or not.
In view of the above, the present appeal is partly allowed. The parties are directed to appear before the trial Court on 25.2.2010.