TaxTMI 
TaxTMI 
1990 (8) TMI 417
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....Sri V. K. S. Chowdhary, learned counsel for some of the defendants prayed that Issues 3, 5(b), 5(e), 5(f), 6, 18, 19(d), 19(e), 20(b) and 21 be also heard and decided as preliminary issues. The ground for making the prayer is that decision on those issues one way may bring the litigation to a close which will save the parties from the ordeal of summoning witness and incurring expense therein. It is submitted that these issues are of law and can be decided without oral evidence. It is also submitted that even if any oral evidence is required for deciding these issues the same may be recorded so that the parties may be saved of a protracted trial. Certain statements in the pleadings of the plaintiffs have been relied upon as containing admission in favour of the defendant. 3. The prayer has been opposed by Sri Abdul Mannan and Sri Z. Jitani, counsel for the plaintiffs. The main thrust of the argument of these counsel is that the matters raised by the defendants have already been dealt with by this Court in order dated 23-10-1989 whereby defendants' Civil Misc. Application No. I4(o) of 1989 dated 11-8-1989 under O. VII, R. 11(d) for rejection of plaint has been rejected. It is ....
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....as it relates to relief for possession? Issue No. 21 : Whether the suit is bad for non-joinder of alleged deities? 5. For submitting that the aforesaid issues require preliminary hearing the learned counsel for the defendants has invited our attention to the order dated 12-1-1990 passed by their Lordships of the Supreme Court on defendants Special Leave Petition No. 14891 of 1989 directed against this Court's order dated 23-10-1989 passed on Civil Misc. Application No. 14(o) of 1989. 6. Civil Misc. Application No. 14(o) of 1989 had been made by UK present applicant under O. VII R. 11 C.P.C. for rejection of the plaint on the grounds That:-- (i) relief for declaration claimed in para 24(a) was barred by the six year-rule of limitation prescribed in Art. 120 of the Indian Limitation Act, 1908. (ii) relief for delivery of possession by removal of idols and other articles was in effect a relief for mandatory injunction and the same was also barred by the six-year rule of limitation prescribed in the aforementioned Art. 120, (iii) the suit is beyond time under Art. 14 also, (iv) the idols or deities who are juristic persons under Hi....
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.... the Court is of opinion that the case or any part thereof may be disposed of on the issues, of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined." Under the above provision once the court came to the conclusion that the case or any part thereof could be disposed of on the issues of law only it was obliged to try those issues first and the other issues could be taken up only thereafter, if necessity survived. The court had no discretion in the matter. This flows from the use of the word "it shall try those issues first". Material change has been brought about in legal position by amended 0.14, R. 2 which reads as follows:-- "R. 2(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) t....
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.... of the plaintiffs to file the suit. It does not refer to the right of the other plaintiffs to institute the suit. At the most it may be said to be case of mis-joinder of party. Mis-joinder of party is also not covered by the expression "bar to the suit", referred to in cl. (b). Issue No. 6 16. This issue relates to the character of the suit. Even if it is held that the suit is not of representative character it will not lead to its dismissal. Therefore, this issue is also not covered by cl. (b). Issue No. 18 17. This issue is related to issue No. 5(c). Issue No. 5(e) has been held to be beyond the scope of cl. (b). Accordingly this issue is also not covered by cl. (b). Issues Nos. 19(2) and 19(e) 18. These issues do not relate to bar of suit but to bar of the claim made by the plaintiffs in respect of the property in dispute. Plaintiffs' claim is that the property in dispute is. mosque and grave-yard. This claim is denied by the defendants. The claim of one party may be upheld and of the other may be negatived. For determining which party is correct and which party is wrong there will have to be adjudication. Court is the appropriate forum for adjudication of....
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....duced. If the finding on these issues will depend upon oral evidence it may not be desirable to take up these issues as preliminary issues. 23. Let us now consider the pleas raised in the plaint. In para 11 of the plaint it is stated that the Muslims were in peaceful possession of the mosque in question till 23-12-1949 when a large crowd of Hindus entered it and placed idols therein. In para 13 it is averred that in proceedings u/S. 145 Code of Criminal Procedure, for short Cr. P.C., the City Magistrate, Faizabad attached the mosque and handed over its possession to the Receiver appointed by him. In paras 15 and 16 it is mentioned that Gopal Singh Visharad, defendant No. 1 of the present suit, filed Suit No. 2 of 1950 in which an interim injunction was issued restraining the defendants of that suit from removing the idols from the mosque in dispute and from interfering with Pooja etc., of the Hindus. The consequence of this interim injunction is stated in para 18 in these terms. "The result of the injunction order of the learned Civil Judge is that while Hindus are permitted to perform Puja of the idols placed by them in the mosque, the Muslims are not allowed even to enter t....
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....other articles which the Hindus may have placed in the mosque as objects of their worship be passed in plaintiffs' favour against the defendants. (Q to (D) ..... 24. The defendant's learned counsel submits that the primary relief claimed by the plaintiffs is declaration and the relief for possession has been claimed only in the alternative and as such if the relief for declaration cannot be granted because of the bar of limitation, the relief for possession also will not be permissible to be granted. The further submission of the learned counsel is that the relief of possession has been claimed by removal of idols and other articles which the Hindus consider objects of worship. This, according to the learned counsel, in substance, constitutes claim of mandatory injunction. For both the reliefs, declaration as well as mandatory injunction, the learned counsel submits. Art. 120 of the Indian Limitation Act, 1908 would be applicable, as the suit was filed before the enforcement of the Limitation Act, 1963. This is the residuary Article inasmuch as it covers suits for which no period of limitation is provided else where in the Schedule and prescribes the limitation ....
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....ure and of performance of other religious ceremonies as claimed by them in the plaint. Similarly in respect of the graveyard they will have to establish that the land was used for burying the dead and that "Fatiha" was said on the graves. In respect of both, the learned counsel submits, oral evidence will have to be adduced. 28. We find substance in the submission of the learned counsel. The case made out by the plaintiffs in the plaint is that they had been saying prayers in the mosque and Fatiha in the graveyard and now there is obstruction by the defendants in performance of both these religious functions. It has been held by their Lordships of the Privy Counsel. In Hukuin Chand v. Maharaj Bahadur Singh that alleged obstruction in worship attracts S. 23 of the Indian Limitation Act, 1908. For attracting this provision the petitioners will have to establish that they had in fact been using the alleged mosque for saying prayers and the alleged graveyard for burying the dead and saying "Fatiha" on the graves. In others words, user of the two places in the manner alleged by the plaintiffs will have to be established by them. Obviously this can be done only through oral evidence. ....
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....on is not purely of law or it is a mixed question of law and fact the Court has no jurisdiction to try the issue as preliminary issue. 32. We have observed hereinabove that after the amendment brought about in the year 1976 it is discretionary with the Court to take up an issue as a preliminary issue. The Court is not bound to take up any issue as a preliminary issue. All judicial discretions have to be exercised reasonably. Reasonable exercise of discretion in the present case dictates us against taking up issues 3 and 5(f) as preliminary issues. The suit in question is connected with four other suits; namely suits numbered 1, 2, 3 and 5 of 1989. The corresponding number of these suits in the court of the Civil Judge were 2 of 1950, 25 of 1950, 26 of 1959 and 236 of 1989. The earliest suit was filed on 16-1-1950; this is Suit No. 2 of 1950 of the court of civil Judge which has been registered here as Original suit No. 1 of 1989. From this it would appear that dispute between the parties is pending for the last 40 years. The dispute raised in these suits is of vital importance to the country. It is not a suit between two individuals, it is a dispute between two major communities....
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....s that the character of the institution and of the property becomes unassailable by the Muslims. Such unassailability does not attach to members of other communities. S. 66 of the Act provides that in every suit or proceeding relating to the title to Waqf property or a right of Mutwalli, the court shall issue notice to the Board at the cost of the party instituting such suit or proceeding. The obvious purpose of issuing this notice is to give opportunity to the Waqf Board to place its version in respect of the title claimed to the property. If the Waqf Board has to be impleaded when a suit is filed by a stranger, we see no reason why the Waqf Board cannot maintain suit when it acquires knowledge that Waqf properly is under litigation before a Court of Law. In fact u/S. 19(2)(q) of the Waqfs Act the Board has been specifically authorised to institute suits and proceedings in a court of law relating to Waqfs. This provision does not say that the proceedings can be taken only in respect of Waqfs which have been notified u/S.6(1). S. 2(1) deals with the application of the Act and says that "Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created....