Full Judgment
C.M. Nayar, J.
1. The present Second Appeal arises out of the judgment dated February 12, 1996 passed by Senior Civil Judge, Delhi by which the Order of the Trial Judge dated April 20, 1995 was set aside and the matter was remanded to the Trial Court for affording opportunity to the parties to lead evidence to decide the case including the plea of bar to the suit under Section 56 of the Wakf Act. The respondent/plaintiff filed a suit for permanent injunction against the appellant/defendant with a prayer that the defendant/appellant be restrained from taking forcible possession of the properly as referred to in the plaint. The Trial Judge framed the preliminary issue relating to the bar of jurisdiction under Section 56 of the Wakf Act
'Whether the suit of the plaintiff is maintainable in the present form ?'
2. Section 56 of the Wakf Act reads as under :-
'Section 56 :- No suit shall be instituted against the Board in respect of any act purporting to be done it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the same, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left'.
3. The Trial Court held that the suit against the defendant was not maintainable without expiration of two months' notice as required by the above provision.
4. The learned counsel for appellant contends that the judgment of the trial court was correctly rendered and there is no occasion for the appellate court to set aside the same. He has sited the judgment of the Supreme Court reported as State of Mahareshtra and Anr. v. Shri Chander Kant : [1977]1SCR993 laying down the proposition that the Court is within its rights to frame the preliminary issue and decide the question as to 'whether the suit was maintainable before the expiration of appropriate notice as provided under law', The learned counsel for respondent however, argues that Section 56 only applies in case the Wakf Board is purporting to act in pursuance of the provisions of the Act or rules made therein whereas, in the present case, notice was not required as the plaintiff/respondent is merely impugning the act of the defendant/appellant to dispossess the respondent from the suit premises. The Judgment as referred to above was rendered on different facts and will not be of any application to the present case.
5. The Appellate Court has remanded the matter to the Trial Court to afford an opportunity to the parties to lead evidence and then to decide the matter including bar to the suit under Section 56 of the Wakf Act.
6. The operative portion of the Order reads as under:
'Thus, to my mind the order of learned trial court dismissing the suit of the appellant/plaintiff being barred by Section 56 of the Wakf Act is erroneous as the learned trial court did not afford any opportunity to the par-ties to lead evidence and went on to give finding with regard to the title of the plaintiff/appellant. The order dated 20-4-95 of the learned trial court cannot be sustained. The same is thereforee set aside. The case is remanded back to the trial court with the direction to give an opportunity to the appellant/plaintiff to file replication to frame issues and after giving an opportunity to the parties to lead evidence to decide the case in accordance with law including the bar to the suit Under Section 56 of the Wakf Act.'
7. The bare reading of the above will clearly indicate that the trial judge disposed of the matter without affording an appropriate opportunity to the plaintiff/respondent to prove his pleas and held that the suit was barred under Section 56 of the Act. The appellate order, thereforee, seeks to grant an opportunity to both the parties to prove their case including the objection relating to bar of jurisdiction under Section 56 of the Act.
8. The present appeal does not raise any question of law, much less substantial question of law which will call for consideration by this Court. The same is, accordingly, dismissed in limine. The interim order stands vacated. There will be no order as to costs.
9. The parties are directed to appear before trial court for further proceedings on the date already fixed.