# Wakf Al aulad Yusufia v. Controlling Authority/Commissioner, Varanasi and others

- **Citation:** (2009) 2 ILRA 432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-15
- **Case number:** Civil Misc. Writ Petition No.59277 of 2005
- **Bench:** S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/wakf-al-aulad-yusufia-v-controlling-authority-commissioner-varanasi-and-others-41530
- **Pages:** 14

## Headnote

Sri K.C. Kishan Srivastava
Sri R.N. Singh
Sri G.K. Singh
Sri V.K. Singh
Sri Prabhakar Awasthi
Sri R.N. Yadav
Sri A.K. Rai
Sri S.N. Singh
S.C.

(A) Constitution of India Art., 226-read
with Code of Civil Procedure-Order IX
Rule 9-Suit dismissed in Default-Second
Suit for same cause of action not
maintainable-once the Second Suit is
precluded by Specific provision-can not
be subjected under writ jurisdiction.

Held: Para 32 & 33

From the above decisions, it follows that
even though the provision contained in
Order IX, Rule 9 of the Code of Civil
Procedure, 1908 as such is not applicable
to the proceedings under Article 226 of
the
Constitution
of
India,
but
the
principle underlying the said provision
may be applied to the proceedings under
Article 226 of the Constitution of India.
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
433
Hence, applying the principle underlying
the provision of Order IX, Rule 9, Code of
Civil Procedure, 1908, which provides
that once a Suit is dismissed in default, it
is not open to the plaintiff to file a fresh
Suit on the same cause of action, it
follows that once a Suit is dismissed in
default, the plaintiff cannot file a Writ
Petition
under
Article
226
of
the
Constitution of India in respect of the
same cause of action, as otherwise, the
plaintiff
will
be
able
to
achieve
something which is prohibited by the
provision contained in Order IX, Rule 9
of the Code of Civil Procedure, 1908.
Case law discussed:
1985 U.P.L.B.E.C 1374 ( D.B.),
1992 AWC 792 ( D.B.),
A.I.R. 1982 All 290,
1991 (Suppl.) R.D.27 ( D.B.).

(B)
U.P.
Regulation
of
Building
(Operation) Act, 1958-Application for
sanction of Map-authorities have to
prima faci satisfy regarding title of the
land-but intricate question of title can
not be decided-except the Civil Court.

Held: Para 53 & 55

In view of the principles noted above,
such question of title cannot be made
the subject -matter of the proceedings
initiated under the Act, and the proper
course for the petitioner was to file a
Suit before the Civil Court.

As noted earlier, the respondent no. 1 by
the order dated 9.8.2005 allowed the
Revision filed by the respondent nos. 4
to 7 and set-aside the orders of the
Prescribed Authority and the Appellate
Authority. Further, the respondent no. 1
also went into the question of title and
held that the plots in question were not
proved to be the Waqf property or part
of the Waqf property. It was not open to
the respondent no.1 to go into the said
question.

## Text

_Characters 0–39,930 of 44,815. This is a partial read: ask again with offset=39930 for what follows._

432 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
initiated against him. Learned counsel for
the
petitioner
conceded
that
the
proceedings under section 3 of the Act
was pending against the petitioner before
the District Magistrate, Etah, when the
new district Kanshiram Nagar was carved
out. He further conceded that the new
district Kanshiram Nagar has been carved
out from a portion of he district Etah and
the remaining portion is still a part of the
district Etah. The show cause notice given
to petitioner under section 3(1) of the Act
was in regard to his externment from the
entire area of the district Etah including
the area that has fallen subsequently in the
new district Kanshiram Nagar. Even
assuming that the area comprising the
new district Kanshiram Nagar is no more
a part of the district Etah, the jurisdiction
of the District Magistrate, Etah, did not
cease to exist in regard to the area that
continued to be the part of the district
Etah even after formation of new district
Kanshiram Nagar. It may also be
mentioned that whenever new districts are
formed ordinarily provisions are made in
the notification to protect the pending
proceedings in the old district. The
petitioner has not filed the notification in
regard to the formation of district
Kanshiram Nagar to show as to what
provisions were made in the notification
in regard to proceedings pending before
different courts and authorities in the old
district Etah.

16. In out view, the submission of
the learned counsel for the petitioner has
not substance.

17. For the reasons stated above, the
writ petition is not maintainable and is
accordingly dismissed with costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2009

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No.59277 of 2005

Wakf Al Aulad Yusfia

...Petitioner
Versus
Controlling Authority/Commissioner and
others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Verma,
Sri Bhagawati Prasad,
Sri R.N. Yadav

Counsel for the Respondents:
Sri K.C. Kishan Srivastava
Sri R.N. Singh
Sri G.K. Singh
Sri V.K. Singh
Sri Prabhakar Awasthi
Sri R.N. Yadav
Sri A.K. Rai
Sri S.N. Singh
S.C.

(A) Constitution of India Art., 226-read
with Code of Civil Procedure-Order IX
Rule 9-Suit dismissed in Default-Second
Suit for same cause of action not
maintainable-once the Second Suit is
precluded by Specific provision-can not
be subjected under writ jurisdiction.

Held: Para 32 & 33

From the above decisions, it follows that
even though the provision contained in
Order IX, Rule 9 of the Code of Civil
Procedure, 1908 as such is not applicable
to the proceedings under Article 226 of
the
Constitution
of
India,
but
the
principle underlying the said provision
may be applied to the proceedings under
Article 226 of the Constitution of India.
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
433
Hence, applying the principle underlying
the provision of Order IX, Rule 9, Code of
Civil Procedure, 1908, which provides
that once a Suit is dismissed in default, it
is not open to the plaintiff to file a fresh
Suit on the same cause of action, it
follows that once a Suit is dismissed in
default, the plaintiff cannot file a Writ
Petition
under
Article
226
of
the
Constitution of India in respect of the
same cause of action, as otherwise, the
plaintiff
will
be
able
to
achieve
something which is prohibited by the
provision contained in Order IX, Rule 9
of the Code of Civil Procedure, 1908.
Case law discussed:
1985 U.P.L.B.E.C 1374 ( D.B.),
1992 AWC 792 ( D.B.),
A.I.R. 1982 All 290,
1991 (Suppl.) R.D.27 ( D.B.).

(B)
U.P.
Regulation
of
Building
(Operation) Act, 1958-Application for
sanction of Map-authorities have to
prima faci satisfy regarding title of the
land-but intricate question of title can
not be decided-except the Civil Court.

Held: Para 53 & 55

In view of the principles noted above,
such question of title cannot be made
the subject -matter of the proceedings
initiated under the Act, and the proper
course for the petitioner was to file a
Suit before the Civil Court.

As noted earlier, the respondent no. 1 by
the order dated 9.8.2005 allowed the
Revision filed by the respondent nos. 4
to 7 and set-aside the orders of the
Prescribed Authority and the Appellate
Authority. Further, the respondent no. 1
also went into the question of title and
held that the plots in question were not
proved to be the Waqf property or part
of the Waqf property. It was not open to
the respondent no.1 to go into the said
question.

(Delivered by Hon'ble Satya Poot Mehrotra, J.)

1. The present Writ Petition under
Article 226 of the Constitution of India
has been filed by the petitioner, interalia,
praying for quashing the judgment and
order dated 9.8.2005 (Annexure no. 6 to
the
Writ
Petition)
passed
by
the
Controlling Authority / Commissioner,
Varanasi Division, Varanasi-respondent
no.1 in Revision No. 74 of 2001 under
Section 15-A of the U.P. (Regulation of
Building
Operations)
Act,
1958
(hereinafter also referred to as " the Act").

2. The dispute relates to a house
being
House
No.
95-B,
Mohalla
Alamganj, Jaunpur City. The said house is
situated on plot nos. 17/-21,18/-26,19/-
9,20/-8,21/-15,22/-12,23/-04,24/05
and
26/14 (herein after referred as "the plots
in question ").

3. Pleadings have been exchanged
between the parties. The Writ Petition is
being disposed of finally at this stage with
the consent of the learned counsel for the
parties.

4. From a perusal of the Writ
Petition filed by the petitioner, Counter
Affidavit filed on behalf of the respondent
nos. 4 to 7, Rejoinder Affidavit filed by
the petitioner, Supplementary Counter
Affidavit filed on behalf of the respondent
nos. 4 to 7 and the Supplementary
Affidavit filed by the petitioner, the
following facts emerge.

5. The respondent nos. 4 to 7 claim
title over the plots in question on the basis
of two Registered Sale Deeds. One Sale
Deed dated 12.2.1981 and registered on
19.2.1981 was executed in favour of Smt.
Kamla Devi (wife of Ghanshyam Das)
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(respondent no.4) by Smt. Sameeunnissa
Begum and Nazim Hussain, and the other
Sale Deed dated 17.2.1981 and registered
on 19.2.1981 was executed in favour of
Ghanshyam Das? predecessor -in-interest
of the respondent nos. 4 to 7- by Smt.
Sameeunnissa Begum, widow of Sayeed
Shah Ahamad Hashmi and D/o Maulvi
Abdul Rahman, and Deva Mani Pathak
Mukhtaram of Raja Yadvendra Dutta
Debey. Photostat copies of the said two
Sale Deeds have been filed as Annexures
- C.A.7 and C.A.8 to the Counter
Affidavit filed on behalf of the respondent
nos. 4 to 7.

6.

It
appears
that
the
said
Ghanshyam Das submitted a map for
sanction on 17.1.2000. The said map was
sanctioned by the Prescribed Authority on
25.1.2000.

7. Subsequently, Objections dated
22.6.2000 were filed on behalf of the
petitioner, copy whereof has been filed as
Annexure no. 1 to the Writ Petition.

8. It is, interalia, stated in the said
Objections that Nawab Mohammad Yusuf
executed a Waqfnama dated 5.4.1956 in
regard to the plots in question and other
property; and that the plots in question
were the property of the Waqf, and the
matter had been finalized up to the
Supreme Court; and that the respondent
nos. 4 to 7 after getting their names
mutated in the official records in forged
and illegal manner, were making illegal
construction over the plots in question.

9. Reply dated 28.7.2000 was filed
on behalf of the respondent nos. 4 to 7
against the said Objections filed on behalf
of the petitioner. It is, interalia, stated in
the said Reply that no waqfnama dated
5.4.1956 was executed by Nawab Yusuf
in accordance with law; and that no waqf
was created, nor were the plots in
question property of the waqf; and that
Smt. Sameeunnissa Begum was the tenant
of the Zamindar Rana Yadvendra Dutt
Dubey in respect of plot nos. 18,19 and
20; and that the said Smt. Sameeunnissa
Begum was also the tenant of the
Zamindar Nazim Hussain in respect of
plot nos. 17,22,21,23,24 and 26; and that
the said plots were
purchased by
Ghanshyam Das and Smt. Kamla Devi by
two sale-deeds in February, 1981; and
that after the said Sale Deeds, the
respondent nos. 4 to 7 incurred huge
expenditure and constructed building,
shops , Mandir and garden etc. over the
said plots; and that the names of the
respondent nos. 4 to 7 were recorded in
the Assessment Register of the Nagar
Palika . Copy of the said Reply has been
filed as Annexure no. 2 to the Writ
Petition.

10. By the order dated 16.3.2001
(Annexure no. 3 to the Writ Petition)
passed under Section 7-A of the Act, the
Prescribed Authority, Regulated Area,
Jaunpur, interalia, cancelled the order
dated 25.1.2000 whereby sanction had
been granted in respect of the map. The
Prescribed Authority, interalia, held on
the basis of the material on record that it
was established that the plots in question
were the waqf property, and the sanction
granted in respect of the map was not in
accordance with the Rules.

11. The respondent nos. 4 to 7 filed
an Appeal under sub-section (2) of section
15 of the Act.

12. By its order dated 26.3.2002
(Annexure no. 4 to the Writ Petition), the
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
435
Appellate Authority dismissed the said
Appeal filed by the respondent nos. 4 to 7.

Thereupon, the respondent nos. 4 to
7 filed Revision under Section 15-A of
the Act.

13. By the order dated 9.8.2005
(Annexure no. 6 to the Writ Petition), the
Controlling Authority / Commissioner,
Varanasi Mandal, Varanasi (respondent
no. 1) allowed the said Revision filed by
the respondent nos. 4 to 7 , and set-aside
the order dated 16.3.2001 passed by the
Prescribed Authority and the order dated
26.3.2002
passed
by
the
Appellate
Authority. On a detailed consideration of
the material on record, the respondent
no.1 concluded that the plots in question
were not proved to be the waqf property
or part of the waqf property.

14. Thereupon, the petitioner has
filed the present Writ Petition seeking the
reliefs as mentioned above.

15. I have heard Sri Ikram Ahmad,
learned counsel for the petitioner and Sri
G.K. Singh, learned counsel for the
respondent nos. 4 to 7, and have perused
the record.

16. It is submitted by Sri Ikram
Ahmad, learned counsel for the petitioner
that the Prescribed Authority and the
Appellate Authority rightly held the plots
in question to be part of the waqf
property, and the validity of the waqf had
been upheld up-to the Supreme Court, and
the respondent no. 1 acted illegally in
passing
the
impugned
order
dated
9.8.2005 allowing the Revision filed by
the respondent nos. 4 to 7.

17. In reply, Sri G.K. Singh, learned
counsel for the respondent nos. 4 to 7 has
made the following submissions:

(1) It is submitted that in regard to
the same cause of action and for the same
reliefs, the petitioner had also filed a suit
being Suit No. 723 of 2000 in the court of
Civil Judge (Junior Division), Jaunpur.
He refers to a copy of the plaint of the
said Suit filed as Annexure SCA-1 to the
Supplementary Counter Affidavit filed on
behalf of the respondent nos. 4 to 7.It is
further submitted by Sri Singh that the
said Suit was dismissed in default on 30th
April, 2007. He has produced a certified
copy of the said order dated 30th April,
2007.Let the same be taken on record.

It is further submitted by Sri Singh
that in view of the fact that the petitioner
was pursuing an alternative remedy in
regard to the same subject-matter, the
present Writ Petition is liable to be
dismissed on the said ground. It is further
submitted that even though the said Suit
was dismissed in default on 30th April,
2007 but the same would not be relevant
for the present Writ Petition, and the
present Writ Petition is liable to be
dismissed
on
the
ground
that
the
petitioner has already availed of an
alternative remedy. It is further submitted
that
even
though
along-with
the
Supplementary Affidavit, the petitioner
has filed copy of an application dated
21.3.2001, filed on behalf of the petitioner
in the said Suit, wherein prayer has been
made, interalia, for withdrawal of the said
Suit, namely, Suit No. 723 of 2000. The
said application was never allowed, and
the said Suit was dismissed in default on
30th April, 2007. In any case, the
submission proceeds, even after the
withdrawal of the said Suit, the Writ
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Petition filed by the petitioner would be
liable to be dismissed.

Sri G.K. Singh, learned counsel for
the respondent nos. 4 to 7 has placed
reliance on the following decisions:

1.
Sheo Nath Dubey Vs. District
Inspector of Schools, Mainpuri and
others, 1985 U.P.L.B.E.C 1374 (
D.B.).
2.
M/s. Akay Organics Private Limited
Vs. Oil & Natural Gas Commission
and others, 1992 AWC 792 ( D.B.).

(2) Even otherwise, as is evident
from a perusal of the Objections filed by
the petitioner and the Reply thereto given
by the respondent nos. 4 to 7 before the
Prescribed Authority, the present case
involves question of title, namely, as to
whether the plots in question were the
waqf property or not. The said question of
title could not be made the subject-matter
of the proceedings initiated under the Act,
and the proper course for the petitioner
was to file a Suit before the Civil Court.

He has placed reliance on the following
decisions:

1. Jai Ram Lal Srivastava Vs. State of
U.P., A.I.R. 1982 All 290.
2. Shyam Sunder Agarwal and others
Vs.
District
Magistrate/Vice
Chairman,
Banda
Development
Authority, Banda and others, 1991
(Suppl.) R.D.27 (D.B.).

18. In rejoinder, Sri Ikram Ahmad,
learned counsel for the petitioner submits
that the Objections before the Prescribed
Authority were filed on behalf of the
petitioner on 22.6.2000 while the said Suit
No. 723 of 2000 was filed subsequently.
As the said Objections filed on behalf of
the petitioner were accepted by the
Prescribed Authority by its order dated
16.3.2001,
the
petitioner
filed
the
Withdrawal Application dated 21.3.2001
in the said Suit, copy whereof has been
filed
as
Annexure
S.A.1
to
the
Supplementary Affidavit filed on behalf
of the petitioner.

19. It is submitted by Sri Ikram
Ahmad, learned counsel for the petitioner
that as the said Withdrawal Application
dated 21.3.2001 had been filed on behalf
of the petitioner, the petitioner had not
been pursuing the said Suit which appears
to have been dismissed in default on 30th
April, 2007. It is not disputed by Sri
Ikram Ahmad, learned counsel for the
petitioner that there is no order on record
of the said Suit allowing the said
Withdrawal Application filed on behalf of
the petitioner.

20.

I
have
considered
the
submissions made by the learned counsel
for the parties.

Let us first take-up the objection
raised by Sri G.K. Singh, learned counsel
for the respondent nos. 4 to 7 regarding
the maintainability of the present Writ
Petition.

21. A perusal of the plaint of the
said Suit No. 723 of 2000 shows that the
said Suit was filed in respect of the land
in question as detailed in the plaint of the
said Suit, interalia, praying for restraining
Smt. Kamla Devi and Ghanshyam Das
(defendants in the said Suit) from raising
construction over the plots in question.
The main ground for filing the said Suit
was that the land in question was the
property of the waqf.
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
437
22. In the proceedings taken on
behalf of the petitioner under Section 7A
of the Act by filing Objections dated
22.6.2000 (Annexure No. 1 to the Writ
Petition), the petitioner, interalia, prayed
that the respondent nos. 4 to 7 be
restrained
from
making
illegal
construction over the plots in question.
The main ground for filing the said
Objections was that the plots in question
were the property of the waqf.

23. It is, thus, evident that the
controversy involved in the said Suit was
the same as was involved in the said
proceedings under the Act, and the reliefs
sought in the said Suit were substantially
the same as were sought in the said
proceedings under the Act.

24. The present Writ Petition, as
noted above, has been filed against the
order dated 9.8.2005 passed by the
respondent no.1 whereby the Revision
filed by the respondent nos. 4 to 7 was
allowed, and the orders passed by the
Prescribed Authority and the Appellate
Authority were set-aside, and it was
concluded on the basis of the material on
record that the plots in question were not
proved to be the waqf property or part of
the waqf property.

The present Writ Petition was filed
on 2.9.2005.

25. As is evident from a perusal of
the
Withdrawal
Application
dated
21.3.2001, copy whereof has been filed as
Annexure S.A.1 to the Supplementary
Affidavit filed on behalf of the petitioner,
the petitioner prayed for withdrawal of the
said Suit No. 723 of 2000. However, it is
not disputed by Sri Ikram Ahmad, learned
counsel for the petitioner that no order
was passed on the said application
permitting withdrawal of the said Suit. On
the other hand, it is evident from a perusal
of the certified copy of the order dated
30.4.2007 produced by Sri G.K. Singh,
learned counsel for the respondent nos. 4
to 7 that the said Suit no. 723 of 2000 was
dismissed in default on 30.4.2007.

26. It will thus be noticed that the
present Writ Petition was filed in the year
2005, that is, prior to the dismissal of the
said Suit in default on 30th April, 2007.

27. Question arises as to whether in
view of the aforesaid circumstances, this
Court may decline to exercise its Writ
jurisdiction under Article 226 of the
Constitution of India.

28. In order to decide the above
question, it is necessary to refer to the
relevant statutory provisions and judicial
decisions.

Order IX, Rule 9 of the Code of Civil
Procedure , 1908 provides:

"9. Decree against plaintiff by
default bars fresh Suit.

1.
Where a suit is wholly or partly
dismissed under rule 8, the plaintiff
shall be precluded from bringing a
fresh suit in respect of the same
cause of action . But he may apply
for an order to set the dismissal
aside, and if he satisfies the Court
that there was sufficient cause for his
non-appearance when the suit was
called on for hearing, the Court shall
make an order setting aside the
dismissal upon such terms as to costs
or otherwise as it thinks fit, and shall
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
appoint a day for proceeding with
the suit.
2.
No Order shall be made under this
rule unless notice of the application
has been served on the opposite
party."

29. This provision, thus, lays down
that where a Suit is dismissed in default
under Order IX, Rule 8 of the Code of
Civil Procedure, 1908, no fresh Suit in
respect of the same cause of action may
be filed by the plaintiff. However, the
plaintiff may file an application praying
for an order to set aside the dismissal
order.

30. In Sheo Nath Dubey case
(supra), this Court has laid down as under
(Paragraph Nos. 11,12,13 and 14 of the
said U.P.L.B.E.C.):

"11. In the rejoinder affidavit, the
petitioner has come out with an excuse for
not disclosing the fact of dismissal of the
suit in the writ petition which appears to
us to be a lame one. His explanation is
that as he was not getting leave from the
College for pursuing the suit, he had no
alternative but to leave the same. It was
his duty to have disclosed the said fact in
the writ petition. Be that as it may, from
the order it appears that on the date when
the suit was taken up, the defendant was
present in the court and the order
indicates that the petitioner had since
failed to show cause for which he had
been granted time, it was dismissed for
want of prosecution. To the filing of the
writ petition, the principle of Order IX,
Rule 9 applied. In the view of the
applicability of the principle, the present
writ petition was barred. It is true that
Order IX, Rule 9 applies to a civil suit in
terms but, as stated above Order IX, Rule
9, being behind the idea that no body
should be harassed unnecessarily by fresh
proceedings one after the other, would
apply to the maintainability of the writ
petition also.
12. In that suit the controversy was
relating to the seniority of the petitioner
which he is claiming in this writ petition.
It
has
been
held
in
Shanker
Ramachandra Abhvankar v. Krishnali
Dattatraya Bapat, AIR 1970 SC 1 that:
"If there were two modes of invoking
the jurisdiction of the High Court and one
of those modes has been chosen and
exhausted, it would not be a proper and
sound exercise of discretion to grant relief
in the other set of proceedings in respect
of the same order of the subordinate
court. The refusal to grant relief in such
circumstances would be in consonance
with the anxiety of the court to prevent
abuse of process as also to respect and
accord finality to its own decisions."
13. In Premier Automobiles Limited
v. Kamlakur Shanaram Wedke and
others, AIR 1975 SC 2238, it was
observed:
"But where the industrial dispute is
for the purpose of enforcing a right,
obligation or liability under the general
law or the common law and not a right,
obligation or liability created under the
Act, then alternative forums are there
giving an election to the suitor to choose
his
remedy
of
either
moving
the
machinery under the Act or to approach
the civil court. It is plain that he cannot
have both. He has to choose the one or
the other".
14. Independently of the doctrine of
election, the question of the sound
exercise of judicial discretion is that
having chosen the remedy of filing a suit,
the petitioner had the benefit of a
meaningful hearing of the lis therein. He
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
439
cannot be permitted to harass a party by
changing the forum of court from one to
another. Judicial discretion requires the
rejection of the writ petition on the
ground."
(Emphasis supplied).

31. In M/s. Akay Organics Private
Limited (supra), this Court has laid down
as under (Paragraph No. 5 and 7 of the
AWC):

"5. In this connection reference may
be made to the case of Premier
Automobiles
Limited
v.
Kamlakur
Shanaram Wedke, AIR 1975 SC 2238,
wherein the Supreme Court laid down as
follows:
"But where the industrial dispute is
for the purpose of enforcing a right,
obligation or liability under the general
law or the common law and not a right,
obligation or liability created under the
Act, then alternative forums are there
giving an election to the suitor to choose
his
remedy
of
either
moving
the
machinery under the Act or to approach
the civil court. It is plain that he cannot
have both. He has to choose the one or
the other".
In Sheo Nath Dubey v. District
Inspector of Schools and others, Writ
Petition No. 10524 of 1978, decided on
28-9-1985, a Division Bench of this court
had to consider some-what similar
controversy. In that case the suit of the
petitioner therein was dismissed for want
of prosecution and thereafter writ petition
was filed for the same relief, which was
claimed in the suit. This Court dismissed
the writ petition on the ground of the
principles contained in Order IX Rule 9 of
the CPC. This Court laid down as under:
"To the filing of the writ petition, the
principle of Order IX Rule 9 applied. In
the view of the applicability of the
principle, the present writ petition was
barred. It is true that Order IX Rule 9
applies to a civil suit in terms but, as
stated above Order IX Rule 9, being
behind the idea that no body should be
harassed
unnecessarily
by
fresh
proceedings one after the other, would
apply to the maintainability of the writ
petition also."
The other ground on which the writ
petition of Sheo Nath Dubey (supra) was
dismissed, was the doctrine of election
and public policy, i.e. a person having
elected to seek redress of his grievances
in a civil court cannot be permitted to
give it up and then to file a writ petition of
this Court is quoted below:
"Independently of the doctrine of
election, the question of the sound
exercise of judicial discretion is that
having chosen the remedy of filing a suit,
the petitioner had the benefit of a
meaningful hearing of the lis therein. He
cannot be permitted to harass a party by
changing the forum of court from one to
another. Judicial discreation requires the
rejection of the writ petition on that
ground."
7. Learned counsel for the petitioner
in the end has however, argued that the
petitioner has withdrawn the suit because
it was not possible to pursue it in view of
the strike of the Advocates of District
Courts and on account of this reason this
writ petition has been filed. It is not
possible to agree with the learned
counsel.
From
the
perusal
of
the
application for withdrawing the suit, the
contents of which have been quoted herein-before,
the
reason
given
for
withdrawing the suit was delay caused in
the hearing of the injunction matter. The
interim injunction application was filed
by the petitioner before the Civil Judge on
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
21-2-1992 and on that very day the Civil
Judge passed an order holding that it is
not a fit case for granting the exparte
interim injunction without hearing the
other side and on that basis merely issued
notice on the said application. The strike
by the Advocates of the District Courts
was not the reason for delay in the
hearing of the injunction application and
was also not the reason for withdrawing
the suit. That apart, the strike of the
Advocates was only for few days, as is
clear from the order sheet, which has
been placed before us by the learned
counsel for the parties. It may also be
restated, as mentioned above, that the
petitioner has already presented the writ
petition before the Oath Commissioner of
this Court on 29-2-1992 and filed it
before the Stamp Reporter on 3-3-1992. It
appears that as the Civil Judge was not
inclined
to
grant
exparte
interim
injunction, the writ petition was prepared
and filed and apprehending that the party
cannot pursue two parallel remedies for
the
same
relief,
application
for
withdrawing the suit was filed before the
Civil Judge on 3-3-1992 without seeking
any permission for filing a fresh civil suit
or for pursuing any other remedy. When
the civil suit is withdrawn without
permission to file the fresh suit, filing of
the new suit is prohibited in view of Order
XXIII Rule 1 of the CPC. Petitioner, in
our opinion, has given-up the remedy of
civil suit, which was already availed of by
him,
without
any
justification.
To
entertain his writ petition, in these
circumstances, would be against the
public policy. The petitioner cannot be
permitted to harass the party by changing
the forum from one court to another. As
laid down by a Division Bench of this
Court in the case of Sheo Nath Dubey
(supra), the sound exercise of judicial
discretion is that the writ petition should
not be entertained and should be
rejected."
(Emphasis supplied)

32. From the above decisions, it
follows that even though the provision
contained in Order IX, Rule 9 of the Code
of Civil Procedure, 1908 as such is not
applicable to the proceedings under
Article 226 of the Constitution of India,
but the principle underlying the said
provision
may
be
applied
to
the
proceedings under Article 226 of the
Constitution of India.

33. Hence, applying the principle
underlying the provision of Order IX,
Rule 9, Code of Civil Procedure, 1908,
which provides that once a Suit is
dismissed in default, it is not open to the
plaintiff to file a fresh Suit on the same
cause of action, it follows that once a Suit
is dismissed in default, the plaintiff
cannot file a Writ Petition under Article
226 of the Constitution of India in respect
of the same cause of action, as otherwise,
the plaintiff will be able to achieve
something which is prohibited by the
provision contained in Order IX, Rule 9
of the Code of Civil Procedure, 1908.

34. In such a situation, the Court
may decline to exercise its jurisdiction
under Article 226 of the Constitution of
India.

35. However, the question arises as
to whether the above principles are
applicable in the present case,that is, as to
whether the present Writ Petition is liable
to be dismissed in view of the said
principles.
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
441
36. While, it is true that the reliefs
sought by the petitioner in the said Suit
No. 723 of 2000 were substantially the
same, as were sought in the proceedings
under the Act but the present Writ
Petition has been filed against the Order
dated 9.8.2005 passed by the respondent
no.1 whereby the Revision filed by the
respondent nos. 4 to 7 under Section 15 -
A of the Act was allowed, and the orders
passed by the Prescribed Authority and
the Appellate Authority were set-aside.
Thus, the present Writ Petition has been
filed by the petitioner, interalia, seeking
quashing of the said order dated 9.8.2005.
Thus the cause of action of the present
Writ Petition and the relief sought in the
present Writ Petition are not the same as
in the said Suit No. 723 of 2000,
therefore, the principles noticed above
regarding non-entertainment of a Writ
Petition in respect of the same cause of
action as was involved in the Suit
dismissed in default or withdrawn, is not
applicable to the present case.

37. The present Writ Petition cannot
, therefore, be dismissed on the ground of
filing of the said Suit No. 723 of 2000 or
its dismissal in default on 30.4.2007.

The
submission
made
by
Sri
G.K.Singh, learned counsel for the
respondent nos. 4 to 7 in this regard
cannot be accepted.

38. Let us now consider the question
regarding the finding recorded by the
Prescribed Authority and the Appellate
Authority that the plots in question were
the Waqf property, and the Revisional
Authority (respondent no.1) setting aside
the said finding. While Sri Ikram Ahmad,
learned counsel for the petitioner submits
that
the
finding
recorded
by
the
Prescribed Authority and the Appellate
Authority on the question was correct and
the Revisional Authority (respondent no.
1) acted illegally in setting aside the said
finding, the submission of Sri G.K.Singh,
learned counsel for the respondent nos. 4
to 7 is that the question as to whether the
plots in question were Waqf property, is a
question of title, and the said question
cannot be decided in the proceedings
under the Act.

39. Therefore, the question arises as
to whether the question of title in regard
to the plots in question may be made the
subject -matter of the proceedings under
the Act. In this regard, it is relevant to
refer to the decisions relied upon by Sri
G.K. Singh, learned counsel for the
respondent nos. 4 to 7.

40. In Jai Ram Lal Srivastava case
(supra), a learned Single Judge of this
Court was dealing with the question of
validity of the order passed by the
Controlling
Authority
rejecting
the
petitioner's application for compounding
the offence under the U.P. (Regulation of
Building Operations) Act, 1958, if any ,
committed by him and directing that
certain
constructions
set-up
by
the
petitioner be demolished. The learned
Single Judge noticed various provisions
of the Act, and held as under ( Paragraph
No. 16 of the said AIR):

"16. I may at this stage point out that
the Act nowhere enables the authorities
under the Act to investigate any dispute
between private parties with regard to the
land over which the constructions stand
or are to be sanctioned or permitted. Any
application moved for seeking permission
for setting up of construction in a
regulated area has to be dealt with under
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Section 7 of the Act. Sub-section (2-A) of
Section 7 lists as many as seven grounds
(enumerated as (a) to (g)) on which alone
the Prescribed Authority can refuse
permission for erection or re-erection of a
building whereas clause (d) of sub-section
(2-A) lays down that erection of proposed
building shall not be sanctioned if its
construction
would
result
in
encroachment upon any public premises
as defied in U.P. Public Premises
(Eviction of Unauthorised Occupants)
Act, 1972, it nowhere lays down that any
such application is to be rejected for the
reason that such construction would
result
in
encroachment
upon
land
belonging to some private person. It may
be that in view of the provisions contained
in clause (d) of sub-section (2-A) of
Section 7 of the Act the concerned
authority can enquire into and adjudicate
on the question whether the objectionable
construction stands on nazul land, but
then it has not been enabled to decide or
adjudicate upon private disputes with
regard to title in respect of the land on
which the objectionable construction
stands.
A
fortiori
the
authorities
constituted under the Act will also not be
able to direct demolition of petitioner's
constructions merely for the reason that
they stand on land belonging to some
other private individual".
(Emphasis supplied).

41. This decision, thus, lays down
that the Act nowhere enables the
authorities under the Act to investigate
any dispute between private parties with
regard to the land over which the
constructions stand or are to be sanctioned
or permitted. The authorities constituted
under the Act have not been enabled to
decide or adjudicate upon private disputes
with regard to title in respect of the land
on which the objectionable construction
stands.
A
fortiori
the
authorities
constituted under the Act will also not be
able to direct demolition of the petitioner's
constructions merely for the reason that
they stand on the land belonging to some
other private individual.

42. In Shyam Sunder Agarwal case
(supra), a Division Bench of this Court
was dealing with the validity of an order
passed by the District Magistrate /Vice
Chairman,
Banda
Development
Authority, Banda, whereby he had stayed
the operation of a sanction granted by him
in
favour
of
the
petitioners
for
construction of a building upon an
application
filed
by
the
contesting
respondents.

43. A notice issued by the District
Magistrate/Vice Chairman calling upon
the petitioners to appear on a date fixed
before
him
for
disposing
of
the
application
filed
by
the
contesting
respondents with regard to the grant of the
sanction to the petitioner, was also
challenged.

44. The Division Bench allowed the
Writ Petition in part, and quashed the said
order as well as the said notice. It was
held as under (Paragraph nos. 4,5 and 6 of
the said R.D.):

"4. Coming back to the proceedings
which were initiated by the contesting
respondents by way of an objection
against the sanction granted by the
District Magistrate to the petitioners, the
position is that the sole ground on which
the sanction was challenged was based on
the allegation that the disputed property
belongs to a temple of which the
respondents were priests and worshippers
2 All] Wakf Al aulad Yusufia V. Controlling Authority/Commissioner, Varanasi and others
443
and that the petitioners have no right title
or interest in the disputed land.
It is apparent that the objection of
the respondents involves an adjudication
of a dispute pertaining to the title to the
land in question. It has consistently been
ruled by this Court right from the earliest
time that disputes pertaining to the title to
the property with respect to which
sanction is sought cannot and ought not
appropriately to be determined in such
proceedings. Indeed there is a complete
unanimity of opinion on this point, the
view expressed being that such an issue is
beyond the purview of the proceedings for
sanction of the plan. See 1945 Allahabad
-393,
1982
Allahabad
-290,
1980
Allahabad Weekly Cases -637 and finally
1991 A.C.J. 649.
5. We are in respectful agreement with
the opinion expressed by this Court in the
above
decisions.
It
is,
however,
unnecessary to dilate on this point further
beyond
stating
that
the
contesting
respondents have already instituted a suit
raising
the
same
controversy
and
asserting the same claim, namely, that the
petitioners not being the owners of the
property are liable to be evicted from the
disputed land. A relief for demolition of
the construction made by the petitioners
pursuant to the sanction granted to them
has also been claimed in the suit.
Annexure RA-2 purports to be a true copy
of the plaint. From the persual of the
plaint it is apparent that precisely same
issue of title which was urged by the
contesting respondents in their objections
before the District Magistrate is sought to
be canvassed in that civil suit.
6. We are, therefore, clearly of the view
that it will not be proper for the District
Magistrate to enter into and determine the
above issue which is the very matter
which has to be considered and decided
in the regular civil suit instituted by the
petitioner".
(Emphasis supplied)

45. This decision, thus, lays down
that where the objection against the
sanction
granted
by
the
concerned
authority for construction of a building on
the land in question involves adjudication
of disputes pertaining to the title to the
land in question, such disputes cannot and
ought not to be determined in the
proceedings before the authorities dealing
with the sanction of plan for making
construction. Such disputes are beyond
the purview of the proceedings for
sanction of the plan. Such disputes should
be considered and decided in a regular
civil suit.

46. In view of the above decisions, it
is evident that the authorities constituted
under
the
Act,
that
is,
the
U.P.
(Regulation of Building Operations) Act,
1958 cannot decide or adjudicate upon the
question of title to the land over which the
constructions are proposed to be raised or
have been raised. In case, an application
for
sanction
of
plan
for
making
constructions over a particular land is
made before the concerned authority
constituted under the Act, the concerned
authority will prima-facie satisfy itself
regarding the title of the person seeking
sanction of plan in respect of the land in
question. Once the concerned authority is
satisfied that prima-facie such person has
title to the land in question and grants
sanction for the plan, such sanction will
not be stayed /cancelled on the ground
that any objection regarding the title of
such person to the land in question is
raised by another private person.
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
47. Intricate questions of title can
not be adjudicated upon and decided by
the authorities constituted under the Act.
Such questions of title to the land in
question should be raised by filing regular
Suit.

48. It must, however, be emphasized
that before granting sanction of plan for
making construction on the land in
question, the concerned authority must
prima-facie satisfy itself regarding the
title of the person applying for sanction of
plan in respect of such land.

49. In the present case, as noted
earlier, one Sale -Deed dated 12.2.1981
and registered on 19.2.1981 was executed
in favour of the said Smt. Kamla Devi
(respondent no.4). The other Sale-Deed
dated
17.2.1981
and
registered
on
19.2.1981 was executed in favour of
Ghanshyam Das, who was the father of
the respondent nos. 5,6 and 7 and the
husband of Smt. Kamla Devi (respondent
no.4). On the basis of the said Sale -
Deeds, the names of the said Vendees
were recorded in the relevant official
records. Thus, the title of the said
Vendees, namely, Ghyanshyam Das and
Smt. Kamla Devi in respect of the plots in
question was prima-facie established.