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Parveen Kr. Aggarwal (Advocate)     10 February 2010

Res Judicata

Plaintiff filed suit for permanent injunction against a private defendant seeking restraint order against his forcible dispossession. The property is a Wakf property and on lease with plaintiff. Wakf Board not impleaded party.

The defendant filed an application for rejection of plaint on the ground of suit not maintainable before civil court as only Wakf Tribunal has jurisdiction. Application dismissed.

The plaintiff then filed an application for withdrawal of suit with liberty to file fresh suit before Wakf Tribunal, inter alia, on the ground that the property being suit property and only Wakf Tribunal has the jurisdiction. The defendant opposes the application contending that res-judicata applies.

What will be the fate of the application seeking withdrawal?


 3 Replies

Parmanand Sharma (Advocate)     11 February 2010

Legally over the properby of wakf only Wakf tribunal has jurisdiction. Law applies to dispute between wakf and wakf properties and wakf board is not necessary to be a party to litigation.

Parmanand Sharma (Advocate)     11 February 2010

Whereas the question of withdrawl is concern the court can not deny to withdraw the suit. However it may refuse to give permission to file fresh suit. But is will not bar the fresh suit as matter has not been finally decided.

Parveen Kr. Aggarwal (Advocate)     14 February 2010

It is settled law that the court has to accept or reject such an application in toto and it cannot choose to accept the application in part and reject part of it, i.e. the court cannot permit the withdrawl of the suit while refusing to grant liberty.

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