CR No.1150 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1150 of 2009 Date of decision: 3.3.2009 Punjab Wakf Board (Now called as Haryana Wakf Board), Ambala Cantt. ......Petitioner Versus Pal Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.R. Takkar, Advocate for the petitioner. * * * Rakesh Kumar Garg, J. The defendant-Board has filed this revision petition challenging order dated 14.1.2009 passed by the Wakf Tribunal, Haryana whereby application filed by the Board, under Order 7 rule 11 read with Section 151 of Code of Civil Procedure for rejection of the plaint on the ground that suit filed by the plaintiffs was bad for non-compliance of mandatory provisions of Section 89 of the Wakf Act, 1995 (for short the 'Act'), has been dismissed. Respondents No.1 to 3 on their behalf as well as in representative capacity filed a civil suit inter alia praying for a decree of mandatory injunction directing the defendant-petitioner to demolish/remove the illegal construction raised in the suit land and to restore it to its original position and further for issuance of a decree for permanent injunction restraining the defendant-Municipal Council, Thanesar from sanctioning any building plan concerning the suit land which was a graveyard. The suit was contested by the defendants. Apart from merits, CR No.1150 of 2009 2 objection was raised by the defendant-Board that the plaintiff had not served the mandatory notice in terms of Section 89 of the Act and therefore, the suit deserves to be dismissed. The petitioner-Board also filed a separate application under Order 7 rule 11 read with Section 151 CPC for rejection of the plaint on the ground that the suit filed by the plaintiff was bad for non-compliance of mandatory provisions of Section 89 of the Act, as the statutory notice of of two months had not been given to the Board by the plaintiff before filing the suit. The plaintiff-respondents filed reply to the aforesaid application and prayed that for the purpose of deciding the application under Order 7 Rule 11 CPC, averments made in para No.9 of the plaint be perused. The trial Court dismissed the aforesaid application vide impugned order holding that the plaintiff-respondent in para No.9 of the plaint has clearly mentioned that legal notice was issued to all the concerned parties and therefore, the plaint cannot be rejected at this stage as it shall be a matter of evidence to be adduced by the parties in this case to prove the said notice. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the order passed by the trial Court is in total contradiction with the stand taken by the plaintiff-respondents and the plaint was liable to be rejected as in their reply, the plaintiff-respondents have nowhere pleaded that any notice was issued to the petitioner-Board, Rather the stand taken by the plaintiff-respondents was that there is no such requirement of law. Learned counsel has further argued that it is a settled proposition of law that issuance of notice in terms of Section 89 of the Act is a mandatory requirement and failure of the same renders the plaint to be rejected at the very threshold. In support of his case, learned counsel for the petitioner has relied upon a judgment of this Court in Arya Prithinidhi Sabha (Punjab) Jalandhar now Haryana, Sirsa v. Punjab CR No.1150 of 2009 3 Wakf Board, Ambala Cantt PLR 2000(1) 92. I have heard learned counsel for the petitioner. I find no merit in the contention raised by him. In reply to the application filed by the petitioner-Board for rejection of the plaint, the plaintiff-respondents have clearly stated that the averments mentioned in the plaint be perused for the purpose of deciding the application. It is not disputed that in para No.9 of the plaint, the plaintiff-respondents have specifically averred that notice under Section 89 of the Act was issued to all the parties concerned. No doubt, the petitioner- Board had disputed the issuance of notice but the factum of notice having been issued by the plaintiff, can only be proved by adducing evidence and therefore, at this stage, the plaint of the plaintiff-respondents cannot be rejected. It is a settled principle of law that the plaint can be rejected under Order 7 rule 11 of the CPC if same does not disclose any cause of action. The issuance of notice under Section 89 of the Act is the legal requirement as per provisions of Wakf Act. In the case in hand, the plaintiff has come to this Court by way of the present plaint and has specifically stated in para No.9 of the plaint that legal notice was issued to the parties concerned. The plaintiff has come with a plea that it shall be a matter of evidence to prove the notice by leading positive evidence and on this count, plaint cannot be rejected under Order 7 rule 11 of Code of Civil Procedure. This Court In Rajesh Grover v. Smt.Rita Khurana and others 2006(3) CCC 15 has held that rejection of plaint can be ordered if the Court comes to the conclusion that any of the conditions enumerated in clause (a) to (f) of Rule 11 of Order 7 CPC are satisfied and the same should be done in exceptional circumstances only. It has also been held that the facts in the plaint or written statement are not to be judged at the CR No.1150 of 2009 4 stage of rejection of plaint which is only a matter of evidence. For the reasons recorded above, I find no merit in this petition. Dismissed. March 3, 2009 (RAKESH KUMAR GARG) ps JUDGE