Topic: Punjab Wakf Board vs Satish Kumar And Ors

Punjab Wakf Board vs Satish Kumar And Ors
Equivalent citations: AIR 2007 P H 141, (2008) 149 PLR 201 - Bench: V K Sharma – Date of Judgment: 14 February, 2007

Vinod K. Sharma, J.

1. Present revision has been filed against an order dated 9-6-2005 passed by the learned District Judge, Rewari vide which the appeal filed by the respondent-plaintiff was accepted and civil suit filed by the plaintiff in the Court of Additional Civil Judge (Senior Division), Rewari has been ordered to be transferred to the Court of learned Additional District Judge -I/Tribunal constituted under the Wakf Act, 1995.

2. The plaintiff respondent had filed a suit on 1-5-1999 against the Punjab Wakf Board and 178 others, relating to the wakf property. In view of the notification dated 25-9-2001 constituting a Tribunal under the Wakf Act an application was moved for return of the plaint for want of jurisdiction of the Civil Court to try and entertain the present suit. Learned Trial Court directed the return of the plaint for presentation before the competent Court.

3. In appeal the learned lower Appellate Court by placing reliance on the judgment of Hon'ble Madhya Pradesh High Court in Subhan Shah through L. Rs. Ramjan Khan and Ors. v. M. P. Wakf Board and Ors. was pleased to hold that instead of returning the plaint the same should be transferred to the Court of competent jurisdiction. The said appeal was accepted and it was ordered that the suit be transferred to the Tribunal constituted under the Wakf Act.

4. Learned Counsel appearing for the petitioner has challenged the said order by placing reliance on the Judgment of Hon'ble Rajasthan High Court in Syed Inamul Haq Shah v. State of Rajasthan and Anr. to contend that the lower Appellate Court was not justified in accepting the appeal challenging the order vide which the plaint was ordered to be returned for presentation In the proper Court.

5. It Is not in dispute that notification ousting the Jurisdiction of the Civil Court was issued after institution of the suit and therefore, the plaint as filed was not presented in the Court having no jurisdiction which could have entitled it to return the same for presentation in the proper Court. Therefore, the order passed by the learned lower appellate Court is in accordance with law. The learned lower Appellate Court, thus, was right in ordering the transfer of the case to the Court of competent jurisdiction in view of the notification dated 25-9-2001.

6. Learned Counsel for the petitioner thereafter by placing reliance on the judgment of Hon'ble Supreme Court in Smt. Isabella Johnson v. M. A. Susai (dead) by LRs. contended that all proceedings undertaken by the Court after 25-9-2001 cannot be sustained as the same are to be held to be without jurisdiction.

7. I find no force in this contention also. The Hon'ble Supreme Court has merely held that the Court having no jurisdiction cannot confer jurisdiction upon itself by applying the principle of res judicata and furthermore that there can be no estoppel against the question of law. In the present case it is not in dispute that at the time of filing of the suit the Court had the jurisdiction and the suit was filed in the competent Court of jurisdiction and proceeded with the same.

8. After the matter was brought to the notice of the Court that in view of the constitution of Tribunal, the jurisdiction of the civil Court has been ousted, the case has been ordered to be transferred to the Court of competent jurisdiction. No material right of the parties has been decided after issuance of the notification and only evidence has been recorded and therefore, there was no question of holding any proceeding to be without jurisdiction as contended by the learned Counsel for the petitioner. The judgment relied upon by the petitioner has no application to the facts of the present case.

9. Accordingly, finding no merit in the present revision petition the same is dismissed.