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Mohd. Shamim Farooqi and anr. Vs. Delhi Wakf Board - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 690 of 1984
Judge
Reported inAIR1985Delhi464; 28(1985)DLT251; 1986(10)DRJ101; 1985RLR461
ActsCode of Civil Procedure (CPC), 1908 - Order 5, Rule 17
AppellantMohd. Shamim Farooqi and anr.
RespondentDelhi Wakf Board
Advocates: Abdul Jaleel and; S.S. Sabharwal, Advs
Cases ReferredPanchdeo Narain Srivastava v. Km Jyoti Sahay and
Excerpt:
code of civil procedure - order 6, rule 17--leave sought to amend the written statement to challenge the maintainability of the snit on the ground that there was no sanction for filing of the suit against the defendant. leave refused by the trial court on the ground that the proposed amendment amounted to withdrawal of admission.; that under respdt. regulations sanction of the committee was required for filing the suit. amendment was allowed. - .....to amend the written statement (2) briefly these are the facts. on 27th september, 1979 delhi wakf board, delhi, plaintiff filed a suit for possession of premises situated at masjid qazi wali, bazar paharganj, new delhi against the defendants petitioners paras 1 and 2 of the plaint are as under: '1.that at delhi the plaintiff is corporated body under wakf act (29 of 1954) and he is entitled to suit. 2. that shri mehmood qamar is the secretary of the plaintiff who is fully conversant with the facts of the- case- and is the principal officer of the plaintiff. he is authorised to- file: suit and is compete to sign and verify plaint'.in the written statement these two paragraphs were admitted by the defendants'. on 16th april, 1984 the petitioners filed an application for leave to amend.....
Judgment:

Sultan Singh, J.

(1) This revision petition under Section 115 of the Code of Civil Procedure (for short 'the Code') is directed against the order dated 6th August, 1984 dismissing the petitioner's application for leave to amend the written statement

(2) Briefly these are the facts. On 27th September, 1979 Delhi Wakf Board, Delhi, plaintiff filed a suit for possession of premises situated at Masjid Qazi Wali, Bazar Paharganj, New Delhi against the defendants petitioners paras 1 and 2 of the plaint are as under:

'1.That at Delhi the plaintiff is corporated body under Wakf Act (29 of 1954) and he is entitled to suit. 2. That Shri Mehmood Qamar is the Secretary of the plaintiff who is fully conversant with the Facts of the- case- and is the Principal Officer of the plaintiff. He is authorised to- file: suit and is compete to sign and verify plaint'.

In the written statement these two paragraphs were admitted by the defendants'. On 16th April, 1984 the petitioners filed an application for leave to amend the written statement. It has been alleged that the Delhi Wakf Board is governed by the Wakf Act, 1954 as extended to Delhi and supplemented by the Rules and Regulations framed under the Act It is alleged that the Rule were framed under the Act on 23rd September 1963 & the Regulations were framed on 5th December 1963 but no copy either of Rules or Regulations is available in the market or the Publication Division of the Government of India.

(3) The petitioners submit that under Regulation No. 17 of Delhi Wakf Board Regulations, 1963 a Property Committee is to be appointed by the Board and under Regulation 35 the Property Committee only is authorised to take decision about the filing, of the suit relating, to the properties of the Wakf Board. The petitioners thereforee sought leave to amend the written statement as follows :

'2.Para 2 of the plaint is not admitted. The suit of the plaintiff as framed is not maintainable. The only body or committee authorised to sanction the filing of a Court case was the property committee, as per regulation framed under the Delhi Wakf Act on 5th of December, 1963 published in the Delhi Gazette at No. 51 (Part iv) dated 19.12.1963.'

'MORESO,as the person signing the plain as Principal Officer is no longer in the Board and the new Principal Officer, appointed in his place has not cared to be imp leaded in his place.''

The application was resisted. The trial court by the impugned order dismissed the application on the ground that the proposed amendment amounted to withdrawal of admission made by the defendants in the written statement.

(4) Learned counsel for the petitioners submit that an admission, if any can be withdrawn or explained. He further submits that the admission in the written statement arisen admission on law which can be withdrawn. He further submits that paragraph 2 of the written statement does not infringe the right of the petitioner to place on record the fact that the Property Committee of the Delhi Wakf Board is the only proper authority to sanction the filing of the court case and if such a sanction is absent the suit would not be maintainable.

(5) Learned counsel for the petitioners refers to Panchdeo Narain Srivastava v. Km Jyoti Sahay and another, : AIR1983SC462 wherein it has been observed that an admission made by a party may be withdrawn or may be explained away and thereforee it cannot be said that by amend- ment an admission of fact cannot be withdrawn. 'It is not disputed that under the Delhi Wakf Act, 1954, it Acts and Regulations suits are to be instituted by the Secretary. The question for decision however is whether the Property Committee which has been constituted under the Act by the Regulations over sanctioned the filing of the suit. Regulations 17 and 35 (A) (c) of Delhi Wakf Board Regulations, 1963 read as -under

'17.Appointment of Committees The Board shall appoint the following five permanent committees and as many other temporary committees as it deems fit: 1. finance Committee 2. Property Committee. '3. Committee for Education & Religions Affairs 4. Masjid & Qabristan Committee, and 5. Shia Wakfs Committee.'

'35.The powers and functions of the property Committee shall be as follows : (A) Wakfs directly administered by the Board: a) X X X -X 'b) X X X X c) X X X X 4) X X Xx e) To sanction the filing of court cases or cases connected with Wakf properties before the Wakf Commissioner.'

Event it the plaint has been signed and verifier .by the Secretary it is necessary for the plaintiff to fulfill Regulation 35 (A) (e) requiring the Property Committee to sanction the filing of court case regarding the property.

(6) Learned counsel for the respondent submits that under the Delhi Wakf Act the Delhi Wakf Board is authorised to institute the suit. It is correct., The question still remains whether the procedure laid down by the Regulations and the Act has been followed by the plaintiff or not. The signing '-and verification of the plaint by the Secretary is a matter different from the sanction by the Property Committee for institution of the suit. The proposed amendment goes to the root of the matter which ought to have been allowed by the trial court. The defendant is entitled to place on record facts available to him in law on the basis of which suit can be held to be not maintainable. Regulations framed under the Delhi Wakf Act are .to be complied with before a suit can be situated relating to a property. The proposed amendment is thus necessary for the decision of the suit. By the proposed amendment the defendant is challenging the right to institute the suit on the ground that there was no sanction for the filing of the present court case against the defendant. In view of the observations of the Supreme Court in Panchdeo Narain Srivastava (Supra) the petitioner arc entitled to the grant of leave to amend the written statement. Learned counsel for the petitioneri, however does not press second part of the proposed amendment.

(7) The revision is accepted setting aside the impugned order dated 6th August, 1984. The petitioners defendants are granted leave to amend the written statement by substituting to the following for the existing para 2 of the written statement :

2.Para 2 of the plaint is not admitted. The suit of the plaintiff as framed is not maintainable. The only body or Committee authorised to sanction the filing of a court case was the Property Committee, as per regulation framed under the Delhi Wakf Act on 5th of December, 1963 published in the Delhi Gazette at (No. 51 Part iv) dated 19.12.1963'.

(8) There will be no order as to costs.


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