1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 81OF 2009 Haji Hasanali Khalily, R/o. Solapur Bazaar Camp, Pune -1 and others ....Applicant. Versus Shaikh Gulam Gous Gulam Mohd., R/o. 323/5, Mahatma Phule, Pune - 42 and others ....Respondents. Mr. S.S. Kazi, Advocate for applicants. Mr. S.V. Gangapurwala h/f. Shri. G.D. Shaikh, Advocate for R- 1 to 5. Mr. S.G. Chapalgaonkar, Advocat for R-6. Mr. M.B.W. Khan, Advocate for R-7. CORAM: R.K. DESHPANDE, J. DATED: 30th November, 2009. ORAL ORDER : 1. This civil revision application has been preferred by the original defendants, challenging the order dated 12.6.2009 passed below Exh. 54 in Regular Civil Suit No. 134/2007, by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad, rejecting the application for amendment of written statement. 2. Shri. Kazi, the learned counsel appearing for the applicant 2 submits that the applicants/the original defendants, had filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment in written statement on 4.5.2009 raising a plea that the Wakf in question is a Shiya Wakf and not a Sunni Wakf and hence, the plaintiffs, who are respondents herein, are not persons interested as they belonged to Sunni community. According to him, the Regular Civil Suit No. 134/2007 filed by the respondents/plaintiffs is, therefore, not maintainable. This application is rejected by the Wakf Tribunal by impugned order and hence, this, revision application. The facts are as under :- 3. The respondents/plaintiffs have filed Regular Civil Suit No. 134/2007, claiming declaration that the proposal given by the defendant Nos. 1 to 7 (who claimed to be Shiya Muslims) on 31.10.2006, to the defendant No. 8 i.e. Pune Municipal Corporation is illegal and against the provisions of Wakf Act, 1995 and hence, the relief, restraining the defendant No. 8 from giving approval to the proposal of defendant Nos. 1 to 7 in respect of suit/ Wakf property, without resorting to due course of law, has also been claimed. It is further claimed that the defendant Nos. 1 to 7 be restrained from dealing with the properties of the Wakf institution Dargah Hazrat Raja Shah Fakir, in any manner by creating third party interest and delivering the possession of Dargah property to defendant No. 8 and also from changing the nature of the suit property by a decree of perpetual injunction. The respondents/plaintiffs claimed 3 themselves as belonging to Sunni Muslim community. 4. The applicants/original defendants have filed their written statement on record, opposing the claim and the trial Court framed the issues on 21.4.2009. The application for amendment has been moved on 4.5.2009 (Exh. 54) stating therein that on earlier occasion, it was the reply filed to the application for temporary injunction, though wrongly styled as written statement and the defendants have not filed written statement on record. It is further stated in the application that in fact the applicants/ defendants wanted to file separate written statement, but since on the last date, the issues were framed and hence, without wasting time, they have filed the application for amendment of the original written statement, which is said to be the reply to the application for temporary injunction by the applicants/original defendants. The trial Court rejected the said application by its order dated 12.6.2009 passed below Exh. 54, which is the subject matter of challenge in the present civil revision application. 5. Shri. Kazi, the learned counsel appearing for the applicants states that the trial Court has committed an error in rejecting the application on the ground that the written statement is already on record and the amendment application is filed only to prolong the disposal of the suit. The trial Court has held that the applicants/defendants were not due diligent in filing the proposed amendment and there are no subsequent 4 events brought on record by filing the written statement. It is further contention of Shri. Kazi that the trial Court was further wrong in holding that no sufficient reasons are given by the appellants/defendants for not filing the application on earlier occasions, prior to framing of issues. Shri. Kazi, the learned counsel, relied upon the decision of the Apex court reported in 2009 (5) Mh.L.J., 597, Vimalchand Vs. Ramakant, wherein it has been held that the defendants are entitled to raise alternate and inconsistent plea. He has further relied upon the judgment of this Court reported in the 2009 (4) Mh.L.J. 685, Twist Spinning Industries Vs. K.H.S.M. Enterprises to urge that if the sufficient cause is shown for filing an application for amendment before the commencement of the trial, then the Courts below were right in allowing the application for amendment. The next judgment relied upon by the learned counsel is reported in AIR 2007 Supreme Court 1663, Usha Balasaheb Swami Vs. Kiran Appaso Swami & ors. to urge that the Court should be liberal in allowing the amendment applications. The last judgment relied upon by the learned counsel is reported in (2007) 7 SCC 167, Andhra Bank Vs. A.B.N. Amro Bank and others in which it has been held that the delay is no ground to refuse the prayer for amendment. The amendment was allowed in this case with a direction to the respondents to file an amended written statement within 7 days. Shri. Kazi states that if the application for amendment is allowed, then he shall file amended written statement within a period of 7 days. 5 6. Shri. Gangapurwala, the learned counsel appearing for the respondent Nos. 1 to 5, on the other hand, opposed the application. He states that by way of amendment, what applicants/defendants want to introduce is the plea that the Wakf in question is a Shiya Wakf and not a Sunni Wakf and all other pleas raised raised by way of proposed amendment are ancillary to the main question and amplify the existing pleadings. According to him, this plea has been raised specifically in the earlier written statement in para 16, wherein it has been stated that according to the scheme the trust has been declared as trust of Shiya Muslims and as such, only Shiya Muslims can become the members as well as the trustees of the said trust. It is further stated in written statement that hence, these defendants being Shiya Muslims, are managing the affairs and administration since its registration and as such, the trust property is vested with these defendants and the Court cannot interfere into the administration and the management of the said Wakf, as their existed an authority dealing with such matters and therefore, the suit in the present form is not maintainable in the law. In view of this, Shri. Gangapurwala states that there was no necessity to move an application for amendment. He further pointed out that the trial Court has also recorded a finding that the ground in the application that already detail proceeding has been pleaded in the earlier written statement of the present defendant, Exh. 18 and it would be lengthy amendments in the written statement of the defendants' application Exh. 54. 6 7. In view the finding and the fact that the written statement has already been filed at Exh. 18 on record by the applicants/defendants, which raises a specific plea that it is a Shiya Wakf and not a Sunni Wakf, the trial Court has held that there was no necessity to move an application. In view of the fact that the parties have clearly understood the said plea and that the other amendments proposed to be carried out being amplification, in my opinion, it was not necessary to allow the application for amendment and the trial Court was right in rejecting the same. 8. The judgments relied upon by the learned counsel for the applicants/defendants, all pertained to the point of delay in filing the written statement and raising the alternate plea. Though the trial Court has held that the applicant was not due diligent in filing an application for amendment, the basic plea that the Wakf is of Shiya Muslims and not of Sunni Muslims, being already there in the earlier written statement, the other findings recorded by the trial Court are of no consequences and this revision is not being dismissed on the said count. The judgments cited by the learned counsel for the applicants/defendants, are not applicable to the facts of the present case. In view of the specific findings recorded by the trial Court, the order impugned does not require any interference. 7 9. The learned counsel Shri. Kazi appearing for the applicant urged that the issue whether Wakf is of Shiya or of Sunni Wakf is not framed by the trial Court. However, it is for the defendants to move such an application before the trial Court and the trial Court is at liberty to adjudicate the same in accordance with law. 10. In the result, there is no substance in the present civil revision application and the same is, therefore, dismissed. [ R.K. DESHPANDE, J.] ssc/cra81.09