Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3411-19 in Suit 1823/10
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3411/2019
IN
S.C. SUIT NO.1823/2010
Nakhuda Mohammed Ali Rogay ...Plaintiff
Versus
1. Rafiq Shelar
2. Feroz Shelar
3. Imtiyaz Shelar ...Defendants
Appearances :
Adv. Mr. G. R. Mishra for plaintiff.
Adv. Zahra Tejani for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 29.9.2021.
ORDER
1. The Defendants filed instant Notice of Motion seeking
following reliefs :
(a) Show cause notice be issued to the Secretary, Maharashtra
State Board of Wakfs Panchakki, Aurangabad 431 002.
(b) This Hon'ble Court be pleased to dismiss the Suit as suit
property being Wakf Property under registration No.
MSBW/MVM/410 of 2018 dated 13th August, 2018;
(c) That the costs of this Notice of Motion be provided.
(d) That such other and further reliefs as deems fit in the nature
and circumstances of the case be granted to the defendants.
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2. It is the contention of the defendants that, the plaintiff
were illegally and unauthorizedly managing the plaintiff no.1 Fatmabai
Binte Nakhoda Mohamed Amin Rogay Religious and Charitable Trust
(hereinafter shall be referred to as "the Trust"), though it was Wakf
property and the instant Suit was filed unauthorizedly against the
defendants and 60 others on false allegations.
3. It is alleged that, the plaintiff no.2 were doing illegal
transfer and dishonestly misappropriated funds in the name of the
Trust. The plaintiff no.2 was operating the Trust in individual name as
family Trust along with his wife and brotherinlaw. Therefore,
inquiries were held and now, the plaintiff Trust is seized by the Wakf
Board on 13.8.2018.
4. It is further contended that, the Maharashtra State Board of
Wakfs by their order dated 13.9.2018, registered the plaintiff no.1 Trust
as Wakf vide registration no. MSBW/MUM/410 of 2018 and issued
Registration Certificate. It is contended that, as per Section 85 of the
Wakf Act, 1995, no civil court will have jurisdiction to try and entertain
any suit pertaining to the properties of Wakf. Therefore, the defendants
prayed for dismissal of the Suit on these grounds.
5. The Notice of Motion is opposed by the plaintiff by filing
say. It is contended that, the defendants in order to delay the
adjudication of the dispute, time and again filing frivolous Notice of
Motions. Initially the defendants had filed Notice of Motion raising
preliminary issue of jurisdiction, which was decided in favour of the
plaintiff. The defendants again raised same issue on other grounds.
Thus, the Suit cannot be dismissed as claimed by the defendants.
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6. It is contended that, the defendants unauthorizedly
registered the plaintiff no.1 Trust under Wakf Board. Therefore, they
have filed Writ Petition before Hon'ble High Court, which is pending for
adjudication. In the aforesaid petition, Hon'ble High Court, upon prima
facie satisfaction, directed the Wakf Board not to pass any order without
hearing the petitioner i.e. the plaintiff. It is contended that, the Wakf
Board Tribunal established by Wakf (Amendment) Act, 2013 is being
repealed by amending Act No.19 of 2015 and thus, Section 85 is also
not in existence. Therefore, the Motion filed by the defendant is not
maintainable.
7. Heard both sides and perused the Motion and reply. It is
not in dispute that, the defendant on earlier occasion has challenged the
jurisdiction of this court on the ground that, without taking permission
of Charity Commissioner the Suit is not maintainable. The aforesaid
objection was decided in favour of the plaintiff. The defendants
contended that, the present Suit is barred in view of specific bar of
jurisdiction of Civil Code, as envisaged by Sec.85 of Wakf Act, 1995.
The aforesaid amendment was inserted by Amendment Act 27 of 2013,
whereby a Special Tribunal is constituted to decide the dispute relating
to Wakf property.
8. I have also perused the repealing Act no. 19 of 2015, by
which entire Act has been repealed. Therefore, at present, Sec.85 is not
in existence. The defendants although having knowledge of it, filed the
instance Motion.
9. Even before commencement of the arguments by the
defendants, they did not disclose about the order dated 14.1.2019
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passed by the Hon'ble High Court in Writ Petition No. 13970/2018,
which is filed by the plaintiff raising grievances that on the application
of stranger they were registered as Wakf. The Hon'ble High Court has
specifically passed interim order directing the Wakf Board not to pass
any order without hearing the plaintiff herein. The aforesaid fact goes
to show that, the defendants did not approach this court with clean
hands. Therefore, the Notice of Motion is liable to be dismissed with
costs. Thus, I proceed to pass following order :
ORDER
1. Notice of Motion No. 3411/2019 is hereby dismissed with costs of
Rs.5000/ to be paid by the defendants to the plaintiff.
2. Defendants to bear the costs of the Motion.
3. Notice of Motion is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 29.9.2021 Greater Bombay.
Dictated on : 29.9.2021
Typed on : 29.9.2021
Draft Submitted on : 29.9.2021
Signed on : 30.9.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
30.9.2021, at 4.20 p.m (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 29/09/2021
JUDGMENT/ORDER signed by P.O. on 30/09/2021
JUDGMENT/ORDER uploaded on 30/09/2021
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