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Andhra Pradesh Wakf Board, Hyderabad Vs. Alapati Mangamma and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 13 of 1970
Judge
Reported inAIR1975AP8
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 5
AppellantAndhra Pradesh Wakf Board, Hyderabad
RespondentAlapati Mangamma and ors.
Appellant AdvocateMirza Munnawar Ali Baig, Adv.
Respondent AdvocateN. Bapiraju, Adv.
DispositionAppeal dismissed
Excerpt:
.....referred to the decision in (1893) 1 qbd 185 (supra). in the second or the cases the subordinate judge dismissed the plaintiff's suit for failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrogatories filed by the defendant. held i am clear that the application was one under order 6, rule 5 that the original orders were passed upon it under that rule and that the order dismissing the suit would have been a perfectly legal order to pass for a failure to comply with the teems of that rule. this has been held recently by reilly and cornish j, in ilr 53 mad 645 =(ath 1930 mad 473) (supra) and indeed it is difficult to see what other course a court could adopt upon the failure of a plaintiff to furnish the information..........with by the plaintiff. the suit was then posted for hearing to 2-1-1969. on that day, the learned judge dismissed the suit with costs, as the terms of the order in i. a. 1358 of 1968 were not complied with; it is against this order that this appeal has been filed. 3. sri munwar ali baig contended that on 1-1-1969 the plaintiff filed an application for extension of time and also a statement on 2-1-1969 furnishing the particulars with regard to some of the lands mentioned in the plaint schedule, and the lower court should have therefore extended the time. but on a perusal of the record of the lower court and the b. diary we do not find that any such petition or statement was filed by the plaintiff on 1-1-1969 or on 2-1-1969 respectively as contended for by the learned counsel. the learned.....
Judgment:

Ramachandra Rao, J.

1. This is an appeal by the plaintiff against the dismissal of his suit, O. S. No. 8 of 1968 by the learned Subordinate Judge, Eluru. The plaintiff the Andhra Pradesh Waqf Board, filed the suit for recovery of possession of certain lands alleging that the said lands were constituted as waqf properties and that the alienations made by one Mohammad Abdul Rahman and his heirs from 1952 to 1954 in favour of each of the defendants 1 to 16 were void and not binding on the plaintiff. The relevant paragraphs in the plaint read as follows:--

'3. The inam lands covered by R. S. Nos. 268, 269, 270, 271, 272 of Pasivedala village measuring Ac. 17-05, Ac. 15-74, Ac. 26-30, Ac. 14-18, and Ac. 26-05 and by R. S. Nos. 254/3,255/1,255/2, 255/3,254, 191, 193, 194 and 195 measuring Ac. 1-80, Ac. 7-29, Ac. 0-91, Ac. 1-18, Ac. 8-49, Ac. 20-56, Ac. 26-10, Ac. 25-02 and Ac. 4-59 cents are waqf properties having been endowed for the support of and services in the mosque at Aurangabad village, Kovvur Taluk, West Godavari District.

The income of the said lands were utilised for the support, of and services in the said mosque of Aurangabad, Kowur, taluk West Godavari district for over 200 years

4. After the constitution of Wakf Board under the Waqf Act, 1954 (Act 20 of 1954 Central) the Waqf Board notified the said lands to be Want properties by a notification published in the Andhra Pradesh Gazette Part II dated 19-4-1962 (Pp 440 and 441;.

5. Sri Mohammed Abdul Rahaman and his heirs alienated Ac. 13-11 cents in the above said numbers from 1952 to 1954 in favour of each of the defendants 1 to 16. The said alienations being alienations of portions of Waqf properties, they are void and not binding on the plaintiff.

xx xx xx

8. The cause of action for the suit has arisen on 19-4-1972 when the suit schedule properties were notified as Waqf properties and on several dates when the Mutawalli and his heirs or representatives alienated the suit schedule properties from 1952 to 1954 to several of the defendants and on all such dates of alienation when the defendants were in unlawful occupation of the suit land and when the said alienations are void and not binding on the plaintiff. On 1-8-1967 when the plaintiff got issued a registered notice demanding delivery of possession and no compliance to it is made within the jurisdiction of this Hon'ble Court at Pasivedala and Vemulluru, Kowur Taluk where the suit schedule lands are situated.

XX XX xX

10. The plaintiff therefore prays that this Hon'ble Court may be pleased to pass judgment and decree in favour of the plaintiff.

1. for the recovery of possession of the suit schedule properties after ejecting the defendants therefrom.

2. for costs of the suit.

3. for such other and further reliefs as are necessary in the circumstances of the case. 'Plaint Schedule

S. No.T.D. No. Survey No. ExtentAc. Cts.D. M.

1.(a)12492680-450-18 (b)2701-200-482.12492720-500-203.12492680-300-124.12492681-150-465.12491911-200-456.(a)12491910-600-24 (b)1932-300-927.12491930-300-148.12491930-600-249.12491940-200-0810.12491940-700-2811.8012540-550-2212.8012541-560-6218.8012540-100-0414.8012540-450-1815.8012540-500-2016.8012540-45

0-1813.11 5. H.M. 5 D.M.'

The other paragraphs of the plaint are omitted as not necessary.

2. The 10th defendant filed an application I. A. No. 1353/1968 stating that the averments made in the plaint and the schedule appended thereto are vague and do not furnish any details with regard to the description of the lands or their boundaries or the villages in which they are situated or the persons who are alleged to be in possession of the said lands or the dates of the alienations of the said lands and the persons who alienated the said lands, and therefore the plaintiff should be called upon to furnish full particulars. That application was filed under Order VI, Rule 5 read with Section 151, C. P. C. The application was heard on 11-12-1968 and the learned Subordinate Judge passed an order directing the plaintiff to furnish full particulars on or before 1-1-1969 and that in default the suit shall stand dismissed with costs. This order was not complied with by the plaintiff. The suit was then posted for hearing to 2-1-1969. On that day, the learned Judge dismissed the suit with costs, as the terms of the order in I. A. 1358 of 1968 were not complied with; it is against this order that this appeal has been filed.

3. Sri Munwar Ali Baig contended that on 1-1-1969 the plaintiff filed an application for extension of time and also a statement on 2-1-1969 furnishing the particulars with regard to some of the lands mentioned in the plaint schedule, and the lower Court should have therefore extended the time. But on a perusal of the record of the lower Court and the B. Diary we do not find that any such petition or statement was filed by the plaintiff on 1-1-1969 or on 2-1-1969 respectively as contended for by the learned counsel. The learned counsel also, could not substantiate with reference to any record, that any such application or statement was filed in the lower court. Therefore, in the circumstances we do not think that the learned Subordinate Judge committed an error in dismissing the suit.

4. Then it is contended by the learned counsel that the learned Subordinate Judge should not have dismissed the suit for not furnishing better or further particulars pursuant to the order made in I. A. No. 1353 of 1968 and that the provisions of Order VI, Rule 5 C. P. C. do not confer any power on the Court for dismissing any suit for non-compliance with a direction given under Order VI, Rule 5 C. P. C. But this contention has not been expressly raised in the grounds of appeal. Even otherwise we are satisfied that this contention is devoid of any force. There is abundant authority for the position that the Court has jurisdiction while giving a direction under Order VI, Rule 5, C. F. C. for furnishing better and further particulars to impose a condition that the suit should stand dismissed if the said order was not complied with. In Davey v. Bentinck, (1893) 1 QBD 185 an action was brought for services performed and money paid by the plaintiff for the defendant at his request and on an account stated. There was also a claim for damages for libel. An order was made by The Master at the instance of the defendant directing the plaintiff to furnish particulars. Some particulars were furnished. But they were found to be insufficient and summons was then taken out to strike out the statement of claim and also to dismiss the action unless the plaintiff delivered the proper particulars within 7 days and an order was made accordingly. The summons was heard and an order was made dismissing the action with costs. An appeal to the judge in Chambers was also dismissed. On further appeal to the Divisional Court, an order was made dismissing the action with costs unless the plaintiff delivered the particulars within 15 days. The plaintiff, without delivering the particulars, preferred an appeal and the Court of appeal held that the order dismissing the action for non-furnishing of particulars was proper and valid. Lord Esher, M. R. held that Order XIX, Rules, 6 and 7 give the Court power in certain cases to order particulars and to impose terms, and that this includes the power to add as a consequence that it the order is not complied with in a certain time the action shall be dismissed, Lopes, L. J. also agreed with the view of Lord Esher M. R. Order XIX, Rule 7 of the Rules of the Supreme Court of England is in pari materia with Order VI, Rule 5 of C. P. C. which reads as follows:

'A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all be ordered, upon such terms as to costs or otherwise as may be just.'

5. Order VI, Rule 5 C. P. C., hasbeen construed by two decisions of the Madras High Court in Nedungadi Bank Ltd. v. Official Assignee of Madras, ILR 53 Mad 645 = (AIR J930 Mad 473) and Vasudevan Nambiyar v. Nedungathiripad, AIR 1932 Mad 316. In the first of the cases, the learned fudges Reilly and Cornish JJ. held as follows:

'Where under Order VI, Rule 5 of the Code of Civil Procedure a Court has ordered a defendant in a suit to give further and better particulars of a matter pleaded in his written statement, on failure by him to comply the Court has jurisdiction to direct that his defence be struck out'

6. The learned Judges referred to the decision in (1893) 1 QBD 185 (supra). In the second or the cases the Subordinate Judge dismissed the plaintiff's suit for failure to comply with the terms of a previous order calling upon him to supply certain information in response to interrogatories filed by the defendant. On appeal, Curgen-ven J. held

'I am clear that the application was one under Order 6, Rule 5 that the original orders were passed upon it under that rule and that the order dismissing the suit would have been a perfectly legal order to pass for a failure to comply with the teems of that rule.'

His Lordship further observed;

'This has been held recently by Reilly and Cornish j, in ILR 53 Mad 645 = (ATH 1930 Mad 473) (supra) and indeed it is difficult to see what other course a Court could adopt upon the failure of a plaintiff to furnish the information required by Rule 5 except to dismiss the suit'

The Nagpur High Court also held in Firm Baxiram Rudmal v. Seth Gokul Das Kisan-lal Mahajan, AIR 1940 Nag 261 as follows:--

'Where a plaintiff is ordered to give particulars, one of the terms of the order may be that the action shall be dismissed unless the particulars are delivered within a certain time. Where the plaintiff has, after several chances, failed to produce necessary particulars within the time granted, the Court can dismiss his suit and where the trial Judge makes an order of this kind and makes it fairly giving every kind of chance, an Appellate Court if indeed it has any power at all to interfere with such a discretion so judicially exercised, should be ex-ceedingly slow to do so.'

7. In view of the above decisions, we hold that a Court has ample jurisdiction to dismiss his suit where further and better particulars are not furnished pursuant to an order passed by the Court under Order VI, Rule 5, C. P. C. In this view we find that the order passed by the learned Subordinate Judge is proper and valid. No other contention is raised before us. In the result the appeal fails and is dismissed with costs. One set


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