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Rahmath Bi And Another v. The State Wakf Board...
Factual and Procedural Background
The petitions arise from two suits filed by the petitioners in the District/Additional District Munsif's Court, Vellore: O.S. No. 258 of 1980 and O.S. No. 111 (III) of 1980 (and a related suit O.S. III of 1980). The petitioners sought declarations of title and injunctions restraining the Tamil Nadu State Wakf Board from interfering with their possession and enjoyment of two items of property. The petitioners alleged that they (or their predecessors) had purchased and were in possession of the properties, and that the Wakf Board had earlier obtained ex parte decrees in older suits (O.S. 958 of 1967 and O.S. 1025 of 1967) purportedly against other persons. The petitioners claimed those decrees were obtained against wrong persons and that the Board was attempting execution based on those decrees.
The petitioners filed interlocutory applications (I.A. Nos. 2681 of 1980 and 2440 of 1980) under Order 23, Rule 1(3) C.P.C. seeking leave to withdraw their suits with liberty to file fresh suits, on the ground that the suits were bad for want of notice under Section 56 of the Wakf Act, 1954. The learned Additional District Munsif and the learned District Munsif reached different conclusions on the effect of non-compliance with Section 56: one declined to accept that Section 56 is mandatory and dismissed the withdrawal application; the other held that a suit without the notice must be dismissed and therefore refused to permit withdrawal. The dismissal of these interlocutory applications was challenged in the present civil revision petitions.
Legal Issues Presented
- Whether Section 56 of the Wakf Act, 1954 is mandatory and a condition precedent to instituting suits challenging acts of the Wakf Board.
- Whether failure to give the notice required by Section 56 is a mere formal defect permitting withdrawal under Order 23, Rule 1(3) C.P.C., or a fundamental (radical) defect requiring rejection of the plaint under Order 7, Rule 11(d) C.P.C.
- If Section 56 is mandatory, what is the appropriate remedy (withdrawal and re-filing versus rejection of plaint) and whether plaintiffs may present fresh plaints after complying with Section 56.
Arguments of the Parties
Petitioners' Arguments
- The notice requirement under Section 56 of the Wakf Act, 1954 is mandatory but the failure to give such notice amounts to a "formal defect" within the meaning of Order 23, Rule 1(3) C.P.C., permitting withdrawal of the suit with liberty to re-file after issuing proper notice.
- There are sufficient grounds (including absence of prejudice) to allow withdrawal and refiling after giving the statutory notice under Section 56.
Respondent's Arguments
- In the absence of the notice mandated by Section 56, there is no properly constituted suit; non-compliance goes to the root of the matter and is not a formal defect permitting withdrawal under Order 23, Rule 1(3) C.P.C.
- The correct remedy for failure to give the statutory notice is rejection of the plaint under Order 7, Rule 11 C.P.C., not permitting withdrawal under Order 23.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Madras State Wakf Board v. B. A. Jamal Mohammed, (1966) 2 Mad LJ 104 | Held that the act of the Wakf Board referred to in the statute covers both voluntary and involuntary acts; Section 56 must be interpreted widely and is mandatory. | The court relied on this Division Bench decision to conclude that Section 56 of the Wakf Act applies to suits of the nature instituted by the petitioners and attracts the first part of Section 56; this supported the conclusion that notice is necessary. |
| Bhagchand Dagdoosa v. Secretary of State for India, (1927) 53 Mad LJ 81; 54 Ind App 338; AIR 1927 PC 176 | Principle: a court should not read qualifications into express, explicit and mandatory statutory language; doing so would encroach on legislature's function. | The court invoked this authority to support the proposition that Section 56 is express, explicit and mandatory and admits of no exceptions. |
| Al. AR Vellayn Chettiar v. Government of Madras, (1947) 2 Mad LJ 208; 74 Ind App 223 | Reaffirmed that the analogous provision (Sec. 80 C.P.C.) applies to all forms of suits against government authorities. | The court used the analogy between Section 56 of the Wakf Act and Sec. 80 C.P.C. to support a broad application of the notice requirement. |
| State of Madras v. C. P. Agencies | Authority approving the comprehensive nature of Sec. 80 C.P.C. (as applied to suits against government). | Used as corroborative support for the analogy and broad interpretation of Section 56. |
| Venkatarangiah Appa Rao Bahadur v. Secretary of State, ILR (1931) 54 Mad 416; AIR 1931 Mad 175 (and AIR 1935 Mad 389) | Held that a suit instituted without issuing notice under Sec. 80 C.P.C. is not maintainable, and the plaint should be rejected; non-compliance is not a matter of discretion. | The court cited this to support the proposition that non-compliance with a mandatory notice provision should result in rejection of the plaint under Order 7 Rule 11(d) C.P.C. |
| Jagadish Chandra v. Debendra Prasad, ILR (1931) 58 Cal 850; AIR 1931 Cal 503 | Expressed a view in line with rejecting plaints where mandatory statutory notice (Sec. 80 C.P.C.) was not given. | Used as supporting authority for the rule that failure to give mandatory notice results in rejection under Order 7 Rule 11(d). |
| Bachchu Singh v. Secretary of State, (1903) ILR 25 All 187 | Approved the view that non-compliance with mandatory notice requirements leads to rejection of the plaint. | Relied on as historical precedent consistent with the court's conclusion about mandatory notice provisions. |
| Pallarisetti Gotilingam v. State of Andhra Pradesh | Illustrated that a suit instituted without proper statutory notice (Sec. 80 C.P.C.) involved a fatal defect, not a formal one, and withdrawal with liberty to re-file was inappropriate. | Cited to support the conclusion that the defect in the present suits is fatal and the proper course is rejection of the plaint rather than permitting withdrawal under Order 23. |
| Gangappa Garupadappa Gugwad v. Rachawwa (Supreme Court) | Affirmed that courts should reject a plaint on the face of it when mandatory notice under Sec. 80 C.P.C. is not shown to have been served; such rejection does not bar a fresh plaint after compliance. | The court quoted and applied this principle to conclude that rejection of the plaints is the appropriate remedy, and that plaintiffs may present fresh plaints after issuing the required notice. |
Court's Reasoning and Analysis
The court proceeded in a stepwise fashion:
- Applicability of Section 56: The court accepted as not in dispute that Section 56 of the Wakf Act applies to suits of the type instituted by the petitioners, because the petitioners challenged acts of the Wakf Board (including obtaining and execution of decrees) falling within Section 15(1) of the Wakf Act. The court referred to the Division Bench decision in Madras State Wakf Board v. B. A. Jamal Mohammed to conclude Section 56 applies in its full amplitude.
- Analogy with Sec. 80 C.P.C.: The court observed that Section 56 is analogous to Section 80 C.P.C., which has been construed to apply to all suits against government-type bodies; authorities were cited for this analogy and its broad application.
- Mandatory character of Section 56: Relying upon precedent (including Bhagchand Dagdoosa), the court held that Section 56 is expressed in explicit, mandatory terms and admits of no exception; it is a statutory and unqualified obligation which the courts cannot qualify on grounds of hardship or absence of prejudice.
- Nature of the defect: The court concluded that failure to issue the notice under Section 56 is not a "formal" defect but a radical defect going to the root of the plaintiffs' cause of action. Because the notice is a condition precedent to instituting the suit, plaintiffs who set the law in motion without issuing the notice cannot secure relief on the merits.
- Remedy: The court held that the proper course where a mandatory notice requirement is not complied with is rejection of the plaint under Order 7, Rule 11(d) C.P.C. The court relied on authorities (including Venkatarangiah decisions, Jagadish Chandra, Pallarisetti Gotilingam, and Gangappa Garupadappa Gugwad) to support rejecting the plaint rather than permitting withdrawal under Order 23.
- Effect on the interlocutory applications: Given that the defect is fatal and not merely formal, the applications under Order 23, Rule 1(3) C.P.C. seeking leave to withdraw on the basis of a "formal defect" could not be maintained. The court therefore sustained the dismissal of those applications, albeit for different reasons than those originally given by the courts below.
- Directions: The court directed the trial court to pass orders in terms of Order 7, Rule 12 C.P.C., rejecting the plaints, and noted that Order 7, Rule 13 permits the plaintiffs to present fresh plaints in respect of the same cause of action after issuing proper notice under Section 56 of the Wakf Act.
Holding and Implications
Holding:
CIVIL REVISION PETITIONS FAIL AND ARE DISMISSED.
The court's operative directions and direct consequences are:
- The court held that Section 56 of the Wakf Act is mandatory and a condition precedent to instituting suits challenging acts of the Wakf Board; non-compliance renders the plaint liable to rejection.
- The interlocutory applications under Order 23, Rule 1(3) C.P.C. seeking withdrawal of the suits on the ground of a "formal defect" could not be maintained because the defect (failure to give notice under Section 56) is radical; the dismissal of those applications by the courts below is sustained (though the appellate court's reasoning differs).
- The trial court is directed to reject the plaints in terms of Order 7 (reference made to Rule 12 and Rule 11(d) principles), but the plaintiffs remain free to present fresh plaints in respect of the same cause of action after issuing proper notice under Section 56 in accordance with Order 7, Rule 13 C.P.C.
- No order as to costs was made by the court in this matter.
Implications beyond the parties: The opinion applies and reaffirms existing authorities that mandatory statutory notice provisions (like Section 56 of the Wakf Act, analogous to Section 80 C.P.C.) must be complied with and that failure to do so is fatal to the plaint. The opinion does not purport to create a new principle of law beyond applying the cited authorities.
1. These civil revision petitions are at the instance of the plaintiffs in O.S. No. 258 of 1980 and O. S. 111 of 1980 on the file of the District Munsif's court, Vellore, and arise out of the dismissal of 1. A. 2681 of 1980 in 0. S. 258 of 1980 and I. A. 2440 of 1980 in 0. S. 111 of 1980, filed under O. 23, R. 1 (3), C. P. C., praying for the withdrawal of the suits 0. S. 258 of 1980 and 0. S. 111 of 1980, with liberty to file fresh suit on the same cause of action. The petitioners in C. R. P, 3311 of 1980 instituted 0. S. 258 of 1980 on the file of the Additional District Munsif's court, Vellore. with reference to two items of properties praying for a declaration of their title and for an injunction restraining the Tamil Nadu State Wakf Board, from interfering with their possession and enjoyment of the properties or by taking forcible possession of the properties by execution of the decree in 0. S. 958 of 1967. According to the case of the petitioners, on 9-2-1967, they purchased the suit properties for a sum of Rs. 7500 from one Mahaboob Bi and that they were is possession of the properties so -purchased. While so, the petitioners alleged that the Wakf Board had instituted a suit against one Maimoona Bi in 0. S. 958 of 1967, District Munsif's court, Vellore, and obtained ex parte decree against her for possession of the suit properties. The suit according to the petitioners, was instituted against wrong person and that the petitioners were not parties to the same and did not know anything about the decree therein: but that the Wakf Board by filing E. P. 966 of 1979, attempted to take possession of the properties. Alleging that the petitioners are bona fide purchasers of the properties and that they had also prescribed title to the properties by adverse possession, the petitioners prayer for the reliefs set out earlier.
2. Likewise, the petitioners in C, R. P. 47 of 1981 instituted 0. S. III of 1980 on the file of the District Munsif's Court. Vellore. praying for a declaration that they are the owners of the suit I)ropertie5 and for restraining the Wakf Board from interfering with their possession and enjoyment of the properties by execution of the decree passed in 0. S. 1025 of 1967, District Munsif's Court, Vellore, and for other incidental reliefs. There also, the petitioners claimed that their father Mohammed Hussain Sahib purchased on 27-8-1951 the suit properties from one Ahamed Hussain and that ever since the date of the purchase, the father of the petitioners was in possession and that after his death, the petitioners continued to remain in possession of the properties. According to the case of the petitioners, the Wakf Board instituted a suit 0. & 1025 of 1967 against one Ammaji Bi and was attempting to interfere with the paitioners, possession and enjoyment of the properties on the basis of such a decree which, according to the petitioners, was obtained against a wrong person, who had no interest whatever in the suit properties. Alleging that the petitioners came to know about tha obtaining of such a decree by the Board and that the Board had als() taken steps for securing possession of the properties, the petitioners instituted 0. S. III of 1980 Praying for the relief set out earlier. In both the suits, the respondent herein has been impleaded as the defendant and the respondent has not even filed a written statement in the suits.
3. In I. A. Nos. 2681 of 1980 and 2440 of 1980. in 0. S. No. 258 of 1980 and 0. S. 111 of 1980, respectively the petitioners prayed for the withdrawal of the suits on the ground that the suits were bad for want of notice under S. 36 of the Wakf Act, 1954 which is mandatory, and that the petitioners should, therefore, be permitted to withdraw the suits with liberty to institute a fresh suit on the same cause of action af ter issuing a proper notice. The learned Additional District Munsif, Vellore who dealt with 1. A. 2681 of 1980 in 0. S. 258 of 1980 was not inclined to accept the stand taken by the petitioners in C. R. P. 3311 of 1980 that S. 56 of the Wakf Act 1954, is mandatory and in this view dismissed the application, while the learned DistrIct Munsif, Vellore who dealt with 1. A. 2440 of 1980 in 0. S. I I I of 1980, was of the view that a suit without a notice under S. 56 of the Wakf Act has to be dismissed and therefore, no option is left to permit the withdrawal of such a suit. Consequent to the conclusion so arrived at I. A. 2681 of 1980 and 1. A. 2440 of 1980 in 0. S. 258 of 1980 and 0. S. 111 of 1980 on the file of the Additional District Munsif's Court, and District Munsif's Court. Vellore respectively, were dismissed. It is the correctness of this order that is challenged in these civil revision petitions.
4. The learned counsel for the petitioners contends that the requirement of a notice under S. 56 of the Wakf Act 1954. is mandatory and that the failure to give such a notice would be in the nature of a formal defect' within the meaning of 0. 23, R. 1 (3) Civil P. C. and therefore. the petitioners should be permitted to withdraw the suits with liberty to institute fresh suits on the same cause of action. It is also contended that there are otherwise sufficient grounds for allowing the petitioners to withdraw the suit and to permit them to institute another suit after giving a proper notice under S. 56 of the Wakf Act. Per contra, the learned counsel for the respondent contends that in the absence of a notice under S. 56 of the Act, which is a mandatory requirement, there is no suit at all which has been properly laid and that therefore, there is no question of withdrawal of such a suit under the provisions of 0. 23, R. 1 (3) C. P. C. Further it is also contended that the institution of the suit without giving a notice under S. 56 of the Wakf Act would not be a formal defect but would be a radical defect going io the root of the matter and consequently, the suit cannot be entertained at all, and the plaints should be rejected under 0 7, R. 11 C. P. C.
5. It is not in dispute in the present case that S. 56 of the Wakf Act would apply to a suit of the nature instituted by the petitioners in 0. S. 258 of 1980 and 0. S. ill of 1980. The scope of. S. 56 of the Wakf Act had been considered by a Division Bench of this court in Madras State Wakf Board v. B. A. Jamal Mohammed, (1966) 2 Mad LJ 104. Therein, it has been held that the act of the Board referred to in S. 36 of the Wakf Act would cover both voluntary and involuntary acts. In the instant case. the act of the Wakf Board complained of by the petitioners relates to proceedings taken by the Board in a court of law with reference to properties which, according to the Board. belong to a Wakf and this would also fall under S. 15 (1) of the Wakf Act. There can, therefore, be no doubt that the cause for the complaint of the petitioner is only the securing of a decree by the Wakf Board under colour of which the possession of the petitioners is sought to be interfered with, though the petitioners claimed that the decree had been obtained against wrong persons. But even, so, the sum and sub-stance of the claim of the petitioner is the obtaining of the decree by the Board against a wrong person and its execution against the properties claimed by the petitioners to be theirs. In other words, the petitioners complained of an act of the Wakf Board under S. 15 (1) of the Wakf Act, and therefore, the first part of S. 56 of the Wakf Act would be undoubtedly attracted. In the decision referred to above, the amplitude of S. 56 has been considered and at p. 108. the Bench points out this S. 56 has to be interpreted in its widest amplitude when the terms are express, explicit and mandatory and do not admit of any exception. It is expressed in very wide language and there is no warrant for excluding its application in suits under Sec. 6 of the Act. To read a qualification into it would be, to borrow the language of their Lordships of the Privy Council in Bhagchand Dagdoosa v. Secretary of State for India, (1927) 53 Mad LJ 81 : 54 Ind App 338 : (AIR 1927 PC 1'76) an encroachment on the function of the Legislature. In our opinion this section imposes a statutory and unqualified obligations upon the * Courts to dismiss a suit if there is no compliance with that section.
It is worthy of note that S. 56 is analogous to Sec. 80 C. P. C. and this section, as Sec. 80 C. P.C. has been construed as applying to all types of suits against the Government. It has been laid down in Bhagchand Dagdusa v. Secretary of State for India, (1927) 53 Mad LJ 81, that that section applies to all forms, of suits and whatever the relief sought, including a suit for an injunction. and this proposition was reaffirmed in Al. AR Vellayn Chettiar v. Government of Madras, (1947) 2 Mad LJ 208:74 Ind App 223 and was approved Supreme Court in State of Madras v. C. P. Agencies, . Having regard to the comprehensive nature of the terms of Sec. 56 of the Act, we have no option but to agree with learned counsel for the appellant that the Board could seek protection in S_ 56."
6. Having regard to the aforesaid statement of the law with reference to the scope of See. 56 of the Wakf Act, in the present case. it has to be held that a notice under Sec. 56 of the Wakf Act is necessary as claimed by the petitioners. The court cannot make exceptions or qualifications to the explicit terms of See. 56 of the Wakf Act. on account of consideration of hardship and absence of prejudice or detriment. A defect, as we have in the present case, cannot also be equated to a formal one as it is a radical defect going to the root of the claim of the petitioners. Section 56 of the Wakf Act is express, explicit, mandatory and admits of no exceptions. Therefore, the issue of a notice under Sec. 56 of the Wakf Act is a condition precedent to the institution of the suit itself. Tf that be so. the next question that arises for consideration is, are the suits liable to be dismissed? The petitioners, without issuing notice under Sec, 56 of the Wakf Act, had set the law in motion before the law permitted them to do so and they cannot, therefore. secure any relief either by way of declaration or otherwise. In other words, if the suits had been instituted without complying with one of the vital and essential requirements as to the notice under Sec. 56 of the Wakf Act, it appears that the proper procedure would be to reject the plaint under 0. 7. Rule 11 (d) C. P. C.
7. In Venkatarangiah Appa Rao Bahadur v. Secretary of State ILR (1931) 54 Mad 416: AIR 1931 Mad 175, Sundaram Chetty J. had occasion to consider this question and the learned judge pointed out that the suit instituted without issuing a notice under See. 80 C. P. C. is not maintainable and affirmed the orders of the courts below rejecting the plaint on the ground that notice under Section 80 C. P. C. was not given. In doing, so, the learned Judge pointed out that it is no longer a matter of discretion of the court to hold in favour of the maintainability of a suit in spite of the non-compliance with some of the requisites of Sec. 80 C. P. C. and that such defects if found to exist, should result in the rejection of the plaint as a whole. Therein, the view has also been expressed that non-compliance with the requisites of Sec. 80 C.P.C. would be covered by 0. 7 R 11 (d) C.P.C. This view was affirmed in Ven katarangiah ApPa Rao Bahadur v. Se cretary of State AIR 1935 Mad 389. A similar view has also been expressed by the Calcutta High Court in Jagadish chandra v. Debendra Prasad, ILR (1931) 58 Cal 850: AIR 1931 Cal 503, which had also approved of the view of the Division Bench of the Allahabad High Court in Bachchu Singh v. Secretary of State, (1903) ILR 25 All 187. In Pallarisetti Gotilingam v. State of Andhra Pradesh , a suit had been in stituted without a proper notice under Sec. 80 C, P. C. and the plaintiff prayed for permission to withdraw that suit with liberty to file a fresh suit and that Disfatal defect and not a formal defect. In considering the correctness of that order,it was pointed out that when it is discovered that there is a non-compliance with the mandatory provision under See. 80 C. P. C. the proper course would be to reject the plaint. This course had also been approved of by the Supreme Court of India in Gangappa Garupadappa Gugwad v. Rachawwa, . Mitter J. speaking for the court observed at p. 446
"No doubt it would be open for a court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under Sec. 80 C. P. C. claiming relief was served in terms of the said section, it would be the duty of the court to reject the plaint recording an order to that effect with reasons for the order. In such a ease, the court should not embark upon a trial. of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
8. Cases where suits -have been in stituted without the issue of a notice accordance with Sec. 80 C P. C. or Section 56 of the Wakf Act, as in the inslant case, would thus be causes which would fall under Order 7 Rule 11 (d) C. P.C. A reading of the plaint in the suits instituted by the petitioners would disclose that an act of the Wakf Board is challenged in the course of the suits without having given the requisite notice under See. 56 of the Wakf Act and on the face of it. even on the statements in the plaints, the suits appear to be barred by the provisions of the Wakf Act. It is also necessary to refer to 0. 7 R. 13 C. P. C. which declares that the rejection of the plaint on any of the grounds under 0. 7 R. 11 C. p. C. would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. In view of this safeguard which has been provided, no prejudice whatever will be caused to the petitioners by rejection of the plaints presented before the court below with,out issuing a notice under S. 56 of the Wakf Act. Consequently, the applications filed by the petitioners under 0. 23 R. 1 (3) C. P. C., on the ground that there is- a 'formal defect, in the suit or that there are Other sufficient grounds for permitting the withdrawal of the suits by the petitioners cannot be maintained. The dismissal of these application by the court below has, therefore, to be sustained, though for totally different reasons. The court below is directed to pass an order in terms of 0. 7 R. 12 C. P. C., rejecting the plaints and it would be open to the petitioners in terms of 0. 7 R. 13 C. P. C. to present fresh plaints in respect of the same cause of action after issuing proper notice under S. 56 of the Wakf Act. Subject to these directions, the civil revision Petitions fail and are dismissed. No order as to costs.
9. Order accordingly.
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