1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVN.APPLICATION NO.41 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri V.G.Gangapurwala, Advocate for the revision applicants, Shri G.D.Shaikh, Advocate for Respondent Nos. 1 to 23, Shri Amol Gawali, Advocate for Respondent No. 24(a) and 24(b) and Shri Mujtaba Gulam Mustafa, Advocate for Respondent No.25. 2. This revision application is filed against order dated 17.4.2009 passed by learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad on application below Exh.33 in Application No.28 of 2008. Application at Exh.33 is under Order 6 Rule 6, Order 7 Rule 11 (a) and Section 115 of the Code of Civil Procedure, 1908. It is stated in the said application that it is an admitted position that in First Appeal No.469 of 1977, this Court by order dated 17.10.1989 has held that CTS No.395-A, Nana Peth, Pune, admeasuriang 15 gunthas is a Wakf property 2 and Wakf should be registered as a Public Trust under the provisions of the Bombay Public Trust Act 1950. The court considered the evidence that was led before the Assistant Charity Commissioner, decision by the Deputy Charity Commissioner and the Assistant Judge, Pune, but has specifically held that CTS No.395-A is a Kabrasthan but not CTS No.395- B. 3. The original proceedings (application No.28 of 2008) filed by present Respondent Nos.1 to 24-A and 24-B (in original proceedings serial No. 2 was mentioned twice and as such applicants were serial Nos. 1 to 23-A and 23-B) were stated to be under Section 83 of the Wakf Act 1995 seeking cancellation of the Order dated 24.4.2998 passed by the Maharashtra State Wakf Board, Aurangabad directing registration of the Kabrasthan at CTS No.395- A,Nana Peth, Pune and for cancellation of the Registration Certificate dated 24.4.2008 issued by the said Board. 04. By the impugned order dated 17.4.2009 while rejecting application (Exh.33), the learned Presiding Officer Maharashtra Wakf Tribunal, Aurangabad, observed in para 2 of his order that the applicants in the main proceedings (application No.28 3 of 2008) have in para.20 thereof made out a case for challenging the order dated 24.4.2008 passed by the Maharashtra State Wakf Board, Aurangabad by which Kabrasthan was directed to be registered at CTS no.395-A, Nana Peth Pune, and therefore prayed for setting aside the said order and for cancellation of the registration certificate issued by the said Board. 05. In paragraph 2 of the main application (No.28/2008), which is stated to be under Section 83 of the Wakf Act 1995, the applicants-present Respondents have stated that the suit property CTS No.395A, Nana Peth, Pune is their ancestral property and they gave genealogy. In paragraph 4, they have given history of previous litigation. It is no more disputed that applicant Nos. 1 to 23 were parties either directly or through their predecessors-in-title to the previous litigation. It is stated in paragraph 4 (paperbook page 37) that, CTS No.395-A and 395-B, Nana Peth, Pune are reserved for garden in the Development Plan for Pune City sanctioned by the Government of Maharashtra in 1966 and the reservation is shown at serial No.50 in Maharashtra Government Gazette dated 8.7.1966. It is further stated that the said properties were occupied by slum dwellers and the Competent Authority and Deputy 4 Commissioner PMC (Slum) have declared the suit property as slum area under the provisions of Section 4(1) of Maharashtra Slum Areas [Improvement, Clearance and Redevelopment] Act, 1971. 5. In paragraph 5, the applicants have further stated that they were the owners and they executed development agreement dated 31.3.2004 and power of attorney also dated 31.3.2004 in favour of Grace Constructions-applicant No.24 in application No.28/2008 and the said documents were registered. It is the case of the present respondents that after execution of development agreement, slum was removed and now the construction work is in progress and after the same was in progress for one year, the Wakf is registered which registration is being challenged. 6. As per the submission of learned counsel for revision petitioners who are original respondents, the entire application for cancellation of registration is nothing but to challenge the High Court order in First Appeal No.469 of 1997 and as such it is abuse of process of law. 7. Learned Presiding Officer of the Tribunal, in paragraph 2 of order dated 17.4.2009 5 has observed that the proceedings before him were in the form of an appeal under the Wakf Act 1995. The decision of the Wakf Board was being challenged before the Tribunal and as such, Order 6 Rule 16 or Order 7 Rule 11(a) of the Code of Civil Procedure, 1908 does not apply. In paragraph 3 of the order, he also noted that the arguments of the applicants in the main proceedings were heard and sufficient arguments on behalf of the respondents were advanced and still those proceedings are part heard for final hearing and with a view to prolong the hearing of the same, the application (Exh.33) was filed. So, it is clear that the application was filed after the main proceedings before the Tribunal were fully argued by the applicant and partially argued by the respondents-the present revision applicants. 8. In the affidavit-in-reply filed by Respondent No.24, in para.15, it is mentioned that the arguments on behalf of the present respondents were heard on 7.2.2009 and concluded on 18.2.2009 and thereafter even the arguments on behalf of present petitioners were almost over on 26.2.2009 and since then the matter was being adjourned to different dates viz. 2.3.2009, 6.3.2009, 9.3.2009, 19.3.2009, 21.3.2009, 26.3.2009, 1.4.2009, 4.4.2009, 9.4.2009, 16.4.2009, 17.4.2009 and 8.4.2009. 6 It is stated in paragraph 15 that with an intention to prolong the original proceedings, application (Exh.33) was filed on 1.4.2009. 9. After giving anxious thought to the scheme of the Code of Civil Procedure, particularly Order 6 Rule 16 which is regarding striking of pleadings, it is clear that the provision is sought to be exercised at an early stage, though it is true the court can at any stage order striking out or amendment in any pleading. Provision of Order 6 Rule 16 is not a provision which should be invoked when most of the arguments before the Tribunal are over. This is so, even assuming that provisions of Order 6 Rule 16 are applicable to the proceedings before the Tribunal. Order 6 rule 16 reads as follows. "ORDER VI. (1) to (15) ....................................... (16).Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious, or; (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court." 7 10. In my considered opinion, in Civil Revision Application, interference by the this Court is not called for. Alll questions are kept open and the Tribunal is competent to apply its mind to all questions which are raised and argued before this court. The scope of revision is very limited. Had it been a case that immediately after application was filed before the Tribunal and on the first date of appearance the present revision applicants had given application for striking out pleadings or under Order 7 Rule 11 of C.P.C. this court could have considered the matter in revisional jurisdiction. Considering the circumstances in which, after partially arguing the matter and obtaining 12 adjournments, application Exh.33 was moved, in my opinion it is in the interest of justice and to avoid abuse of process, this civil revision application should not be entertained. Hence, the same is dismissed, by keeping all contentions of the parties open for consideration by the Tribunal. It is made clear that this court has not given any finding on legal issues which are left open for consideration by the Tribunal. Date:11/08/2009 (P.R.BORKAR, J.) pnd/cra41.09