- (1.) The order allowing a petition filed under Order 2 Rule 2 read with Section 151 of the Code of Civil Procedure filed after conclusion of evidence and before argument was allowed by the learned Presiding Officer, Wakf Tribunal, West Bengal in Suit No.9 of 2009 is the subject-matter of challenge in this revisional application.
(2.) The principal issue raised in this revisional application is the jurisdiction of the Wakf Tribunal to allow an application under Order 2 Rule 2 read with Section 151 of the Code of Civil Procedure after conclusion of evidence and before argument.
(3.) In order to appreciate the aforesaid contention, the following provisions of the Code of Civil Procedure and the Wakf Act, 1995 are required to be taken into consideration:- i) Order 2 Rule 2,C.P.C. 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. ii) Order 6 Rule 17 C.P.C. 17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. iii) Order 23 Rule 1 C.P.C. 1. Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Sections 6, 7 and Section 85 of the Wakf Act, 1995 are reproduced hereinbelow:- "6. Disputes regarding wakfs. (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni Wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. 7. Power of Tribunal to determine disputes regarding wakfs. (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or nor, or whether a wakf specified in such list is a Shia wakf or a Sunni Wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that (a) in the case of the list of wakfs relating any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs any where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be." 85. Bar of jurisdiction of civil courts. No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal." Mr. S.P. Roy Chowdhury, learned Senior Advocate appearing on behalf of the petitioner submits that Order 2 Rule 2 could not be available to the plaintiff after institution of the suit. The Code of Civil Procedure does not permit such an application to be filed after the institution of the suit. Moreover, in the present case, the said application was filed after conclusion of trial and at the argument stage. At that stage, the Court has no jurisdiction to allow such an application to be filed for relinquishment of the claim. He submitted that in the event, at the time of trial, the plaintiff feels that some of the reliefs cannot be granted by the Tribunal on an application made the Tribunal in exercise of its power under Order 7 Rule 10 of the Code of Civil Procedure should direct return of the plaint to the appropriate Court having jurisdiction to consider the same.;