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Judgment
H. Billappa, J.—Heard the learned counsel for the petitioner and also the learned counsel for the respondent No. 1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 21.8.2012, passed by the trial court in S.C. No. 15470/11 on I.A. No. 6.
By the impugned order, the trial court has deferred consideration of I.A. No. 6 along with the main matter. Therefore, this writ petition.
The 1st respondent has filed suit in S.C. No. 15470/11 for ejection of the petitioner and respondents 2 to 9 and also for damages. In the said suit, the petitioner has filed I.A. No. 6 u/s 85 of the Wakf Act praying to dismiss the suit. The trial court has deferred consideration of I.A. No. 6 along with the main matter. Therefore, this writ petition.
The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the suit is barred u/s 85 of the Wakf Act, 1995 and therefore, the trial court should have considered I.A. No. 6 without deferring it. He therefore submitted that the impugned order cannot be sustained in law.
As against this, the learned counsel for the 1st respondent submitted that the impugned order does not call for interference. He also submitted that it is only to protract the proceedings I.A. No. 6 has been filed and therefore, the impugned order does not call for interference. He placed reliance on the decision of the Hon''ble Supreme Court reported in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, .
I have carefully considered the submissions made by the learned counsel for the parties.
The point that arises for my consideration is, Whether the impugned order calls for interference? It is relevant to note, the suit in S.C. No. 15470/2011 has been filed by the 1st respondent for ejection and damages. The petitioner has filed I.A. No. 6 praying to dismiss the suit. Section 85 of the Wakf act provides that, no suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a tribunal. I.A. No. 6 has been filed raising question of jurisdiction. The trial court should have considered I.A. No. 6 and passed appropriate orders. Instead of that, the trial court has deferred consideration of I.A. No. 6 along with the main matter which is not correct. The decision relied upon by the learned counsel for the respondent can be considered while considering I.A. No. 6 on merits. The impugned order cannot be sustained in law.
Accordingly, the writ petition is allowed and the impugned order dated 21.8.2012 deferring consideration of I.A. No. 6 in S.C. No. 15470/2011 is hereby set aside. The trial court is directed to consider I.A. No. 6 in accordance with law by giving opportunity to the parties within four weeks from the date of receipt of a copy of this order.
I.A. No. 1/13 does not survive for consideration and accordingly, it is rejected.