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Under Order VII Rule 11 a plaint can only be rejected as a whole and not in part: Bombay High Court

The plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. This remarkable judgment was passed by the Bombay High Court in the matter of AURANGABAD SMART CITY DEVELOPMENT CORPORATION LIMITED V THE MAHARASHTRA STATE BOARD OF WAQF, AURANGABAD [CIVIL REVISION APPLICATION NO. 16 OF 2021] by Honourable Justice N.J. Jamadar.

Through this civil revision petition the legality, propriety, and correctness of an order passed by the Maharashtra State Waqf Tribunal, Aurangabad, is challenged. In this impugned order dated 11th February 2021, an application preferred by Municipal Co. was submitted for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (Code) but it was rejected by the lower court.

The background facts leading to this application are land bearing Survey No. 210 including CTS No. 2340 (suit property), is the Waqf Property dedicated for the services of Jama Masjid, Aurangabad. In the record of rights, the suit property was shown in the name of Mohammad Azeemuddin, Mutawalli, who was caretaker of the land of the Jama Masjid. The plaintiff avers that while implementing the City Survey Scheme, probably in the year 1971, the name of defendant No.1-Municipal Corporation is recorded as owner and occupant of the suit land without any legal mandate. The mutation of the name of defendant No.1 – Municipal Corporation in the City Survey record, however, neither divest the ownership over the suit land of the Waqf Institution nor confers any right, title, and interest in the suit land upon the Municipal Corporation.

The plaintiff Board initiated the proceedings under Section 40 of the Waqf Act, 1995, and passed an order on 25th June 2013 declaring that the suit property and then did not proceed with any other applications. The order passed by the Board on 25th June 2013 declaring the suit property as the Waqf Property, thus, remained intact. Later the appellants here threatened to commence construction of the War Room office of the Smart City Development Corporation over the suit land despite the order of the plaintiff-Board declaring the suit land to be the Waqf Property. Hence the suit for perpetual injunction restraining the defendants from making any sort of construction over the suit land or creating third party interest therein.

It is observed that “It is trite law that the rejection of the plaint envisaged by the Order VII Rule 11 of the Code is a rejection of the plaint as a whole. The plaint cannot be rejected in part. If the plaint survives against certain defendants or property, Order VII Rule 11 will have no application at all and the suit as a whole must then proceed to trial.”

Thus, it was stated that “the bar to the tenability of the suit in the absence of prayer of possession, does not apply with equal force. The prayer for rejection of the plaint on the said count does not merit acceptance since the Tribunal does not seem to have committed any error. in observing that notice U/S. 487 of the Act 1949 was not warranted as the act attributed to defendant No.1-corporation cannot be said to have been done or purported to be done in pursuance or execution or intended execution of the provisions of the said Act, 1949. The substratum of the plaintiff’s case is that the defendant No.1- corporation has arrogated the suit property though it is a Waqf Property and unlawfully erected structures thereon. In the circumstances, the notice U/S. 487 of the Act, 1949 is plainly not warranted.

Hence, the revision application was rejected by the HC since the Tribunal did not commit any jurisdictional error in rejecting the application for rejection of the plaint.

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