Under Order VII Rule 11 a plaint can only be rejected as a whole and not in part: Bombay High Court
The plaint can and must be rejected in exercise of powers under Order 7 Rule 11(d) CPC on account of non-compliance with mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. This remarkable judgment was passed by the Bombay High Court in the matter of AURANGABAD SMART CITY DEVELOPMENT CORPORATION LIMITED V THE MAHARASHTRA STATE BOARD OF WAQF, AURANGABAD [CIVIL REVISION APPLICATION NO. 16 OF 2021] by Honourable Justice N.J. Jamadar. Through this civil revision petition the legality, propriety, and correctness of an order passed by the Maharashtra State Waqf Tribunal, Aurangabad, is challenged. In this impugned order dated 11th February 2021, an application preferred by Municipal Co. was submitted for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (Code) but it was rejected by the lower court. The background facts leading to this application are land bearing Survey No. 210 including CTS No. 2340 (suit property), is the Waqf Property dedicated for the services of Jama Masjid, Aurangabad. In the record of rights, the suit property was shown in the name of Mohammad Azeemuddin, Mutawalli, who was caretaker of the land of the Jama Masjid. The plaintiff avers that while implementing the City Survey Scheme, probably in the year 1971, the name of defendant No.1-Municipal Corporation is recorded as owner and occupant of the suit land without any legal mandate. The mutation of the name of defendant No.1 – Municipal Corporation in the City Survey record, however, neither divest the ownership over the suit land of the Waqf Institution nor confers any right, title, and interest in the suit land upon the Municipal Corporation. The plaintiff Board initiated the proceedings under Section 40 of the Waqf Act, 1995, and passed an order on 25th June 2013 declaring that the suit property and then did not proceed with any other applications. The order passed by the Board on 25th June 2013 declaring the suit property as the Waqf Property, thus, remained intact. Later the appellants here threatened to commence construction of the War Room office of the Smart City Development Corporation over the suit land despite the order of the plaintiff-Board declaring the suit land to be the Waqf Property. Hence the suit for perpetual injunction restraining the defendants from making any sort of construction over the suit land or creating third party interest therein. It is observed that “It is trite law that the rejection of the plaint envisaged by the Order VII Rule 11 of the Code is a rejection of the plaint as a whole. The plaint cannot be rejected in part. If the plaint survives against certain defendants or property, Order VII Rule 11 will have no application at all and the suit as a whole must then proceed to trial.” Thus, it was stated that “the bar to the tenability of the suit in the absence of prayer of possession, does not apply with equal force. The prayer for rejection of the plaint on the said count does not merit acceptance since the Tribunal does not seem to have committed any error. in observing that notice U/S. 487 of the Act 1949 was not warranted as the act attributed to defendant No.1-corporation cannot be said to have been done or purported to be done in pursuance or execution or intended execution of the provisions of the said Act, 1949. The substratum of the plaintiff’s case is that the defendant No.1- corporation has arrogated the suit property though it is a Waqf Property and unlawfully erected structures thereon. In the circumstances, the notice U/S. 487 of the Act, 1949 is plainly not warranted.“
 on 23 04 2021 on 24 04 1 C.R.A. No. 16 2021 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 121 1.Aurangabad Smart City Development Corporation Limited through its Additional Chief Executive Officer Smart City Office War Room Dr. Babasaheb Ambedkar Research Centre near Aam Khas Maidan Aurangabad 4310012.The Municipal Corporation AurangabadThrough its Commissioner Municipal Corporation Office Aurangabad....Applicants VERSUSThe Maharashtra State Board of Waqf through its Chief Executive Officer Panchakki Aurangabad ...RespondentMr. V.D. Sapkal Senior Advocate i. by Mr. P.D. Jarare Advocate for applicantsMr. Y.B. Pathan Advocate for respondent C ORAM : N.J. JAMADAR J. Closed for Judgment on : 15th March 2021 Pronounced on : 23rd April 2021JUDGMENT :The legality propriety and correctness of an orderpassed by the Maharashtra State Waqf Tribunal Aurangabad dated on 23 04 2021 on 24 04 2 C.R.A. No. 16 2021 11th February 2021 on an applicationpreferred bythe applicant No.2 defendant No.1 for rejection of the plaint underOrder VII Rule 11(d) of the Code of Civil Procedurewherebythe said application came to be rejected is assailed in this revisionapplication.2.Shorn of unnecessary details the background factsleading to this application can be stated as under:a)The respondent plaintiff is the Board constituted underthe provisions of the Waqf Act 1995is the WaqfProperty dedicated for the services of Jama Masjid Aurangabad. Inthe record of rights the suit property was shown in the name ofMohammad Azeemuddin Mutawalli who was caretaker of the landof the Jama Masjid. Pursuant to the survey of Waqf conductedunder the provisions of the Waqf Act 1995 in the GovernmentGazette published on 17th May 1973 Jama Masjid Aurangabad wasincluded as Waqf Property.b)The plaintiff avers that while implementing the City on 23 04 2021 on 24 04 3 C.R.A. No. 16 2021 Survey Scheme probably in the year 1971 the name of defendantNo.1 Municipal Corporation is recorded as owner and occupant of thesuit land without any legal mandate. The mutation of the name ofdefendant No.1 Municipal Corporation in the City Survey record however neither divests the ownership over the suit land of theWaqf Institution nor confers any right title and interest in the suitland upon the defendant No.1 the Municipal Corporation.c)The plaintiff Board thus initiated the proceedings underSection 40 of the Waqf Act 1995. After providing an opportunity ofhearing to the concerned parties the Board passed an order on 25thJune 2013 declaring that the suit property is a Waqf property.Accordingly the suit property came to be registered as a WaqfProperty vide registration No. MSBW ABD 526 2013.d)The defendant No.1 Municipal Corporation beingaggrieved by the aforesaid order of the plaintiff Board filed anapplication before the Waqf Tribunal being Misc. Application No. 3 of2014. The defendant No.1 Corporation however did not prosecutethe said application and thus it came to be eventually dismissed forwant of prosecution by order dated 4th January 2017. The orderpassed by the Board on 25th June 2013 declaring the suit property asthe Waqf Property thus remained intact. on 23 04 2021 on 24 04 4 C.R.A. No. 16 2021 e)The plaintiff avers that the defendant No.1 Corporationhas erected construction over the portions of the suit land.However the defendant No.1 corporation has no legal right to erectfurther construction upon the land. The defendant No.2 Aurangabad Smart City Development Corporation Limited is anagency of the defendant No.1. The defendant No.1 is in the processof transferring the suit land in favour of defendant No.2. DefendantsNo.1 and 2 have threatened to commence construction of War Roomoffice of the Smart City Development Corporation over the suit landdespite the order of the plaintiff Board declaring the suit land to bethe Waqf Property. Hence the suit for perpetual injunctionrestraining the defendants from making any sort of construction overthe suit land or creating third party interest therein.f)The defendants appeared in response to the suitsummons. The defendant No.1 Municipal Corporation preferred anapplication for rejection of the plaintcontending inter alia that from the averments in the plaint it becomes evident that theplaintiff is not in possession of the suit property and the defendantsare in possession thereof and thus a suit for perpetual injunctionsimpliciter without the substantive relief of possession is barred. Itwas further contended that the suit is also barred by the provisions on 23 04 2021 on 24 04 5 C.R.A. No. 16 2021 of Section 487 of the Maharashtra Municipal Corporation Act 1949(Act 1949) for want of mandatory notice thereunder to theMunicipal Corporation.g)The plaintiff Board resisted the application on the scorethat the notice U S. 487 of the Act 1949 was not at all warranted asthe defendant Municipal Corporation has unlawfully encroached overthe suit property and threatened to commit unlawful acts and thus the said act of the defendant Municipal Corporation cannot be said tobe done or purported to be done in pursuance or execution of theAct 1949. It was denied that the plaintiff is not in possession of thesuit property.h)After appraisal of the averments in the plaint and therival contentions in support of the application for rejection of theplaint and in opposition thereto the Tribunal was persuaded to rejectthe application by the impugned order. The Tribunal was of theview that though there was no clear pleading that the plaintiff Boardis in possession of the suit property yet it did not imply that theplaintiff has admitted the possession of the defendant. Thus theprinciple that a suit for prohibitory injunction simpliciter by a person who is not in possession of the suit property without seeking therelief of possession did not apply with equal force of the facts of the on 23 04 2021 on 24 04 6 C.R.A. No. 16 2021 case. Even otherwise according to the Tribunal the plaintiff Boardhas an option to amend the plaint and seek the relief of possession if found necessary. The Tribunal repelled the challenge to thetenability of the suit for want of notice under Section 487 of the Act 1949 by observing that in the facts of the case notice U S. 487 wasstrictly not warranted and in fact the plaintiff Board had addresseda letter on 25th September 2020 to the Commissioner MunicipalCorporation Aurangabad which amounted to notice U S. 487 of theAct 1949. i)Being aggrieved by and dissatisfied with the aforesaidapproach of the Tribunal the defendants have invoked the revisionaljurisdiction of this Court.3.I have heard Mr. V.D. Sapkal the learned Senior Counselfor the applicants defendants and Mr. Y.B. Pathan the learnedCounsel for the respondent plaintiff. With the assistance of thelearned Counsels for the parties I have also perused the material onrecord especially the plaint in Waqf Suit No. 121 and theorder impugned herein.4.Mr. Sapkal the learned Senior Counsel for the applicants strenuously urged that the Tribunal committed a manifest error in on 23 04 2021 on 24 04 7 C.R.A. No. 16 2021 completely misreading the averments in the plaint. From a plainreading of the plaint according to Mr. Sapkal it becomes abundantlyclear that the plaintiff Board has admitted in unequivocal terms thatthe defendant No.1 Municipal Corporation is in possession of thesuit property and has erected multiple structures thereon. Thus theTribunal could not have observed that the plaintiff has not admittedthe possession of the defendants over the suit property especiallyafter observing that there is no clear pleading to the effect that theplaintiff is in possession of the suit property. Secondly according toMr. Sapkal the Tribunal misdirected itself in rejecting the applicationfor rejection of the plaint on the premise that the plaintiff can amendthe plaint and incorporate the relief of possession. This view vitiatedthe entire reasoning of the Tribunal urged Mr. Sapkal.5.It was further submitted that the bar envisaged by theclauseof Rule 11 of Order VII of the Code need not be statutoryalone. It is well recognized principle of law that a suit for prohibitoryinjunction simpliciter by a person who is not in possession of the suitproperty without seeking the relief of possession is not tenable.Though the attention of the Tribunal was invited to a bindingprecedent of the Supreme Court in the case of Anathula SudhakarVs. P. Buchi Reddyby L.Rs. and Ors. AIR 2008 Supreme on 23 04 2021 on 24 04 8 C.R.A. No. 16 2021 Court 2033 the Tribunal misconstrued the ratio of the said judgmentand allowed the plaintiff board to wriggle out of the situation byobserving that the plaintiff can amend the plaint. Lastly Mr. Sapkalwould urge that the Tribunal had fallen into an error in observingthat the notice to the Municipal Commissioner constituted a notice tothe Municipal Corporation.6.Mr. Y.B. Pathan the learned Counsel for the respondent plaintiff joined issue by canvassing a submission that the provisionsof Section 487 of the Act 1949 were not at all attracted as theplaintiff has invoked the jurisdiction of the Civil Court against theunlawful act of defendant No.1 corporation. To commitencroachment and usurp the Wakf Property can never be an actdone or purported to be done in pursuance or execution or intendedexecution of the Act 1949 stoutly submitted Mr. Pathan. On theaspect of nature of relief in the suit Mr. Pathan would urge that inthe peculiar facts of the case it is not open to the defendant No.1 Municipal Corporation to question the character of the suit property.The Board in exercise of the powers vested in it U S. 40 of the WaqfAct 1995 has lawfully made a declaration that the suit property isthe Waqf Property. A challenge thereto at the instance of defendantNo.1 corporation has since been abandoned. In this state of affairs on 23 04 2021 on 24 04 9 C.R.A. No. 16 2021 the suit seeking the relief of injunction is perfectly in order submitted Mr. Pathan. In order to lend support to this submission Mr. Pathan placed reliance on a judgment of the Gujarat High Courtin the case of Mahulbhai Bipinbhai Tamboli Vs. AkshaybhaiRamanbhai Thakkar dated 26th April 2019 in R Second Appeal No.616.7.Before adverting to deal with the rival contentions itmay be apposite to note the facts which are by and large not indispute. The fact that the suit property is declared a Waqf PropertyU S. 40 of the Waqf Act 1995 is not in dispute. In fact thedefendant No.1 Corporation had preferred Waqf Misc. ApplicationNo. 14 against the said declaration. The said applicationcame to be dismissed for want of prosecution by the Tribunal byorder dated 4th January 2017. This implies that the character of thesuit property as the Waqf Property cannot be questioned unless theorder dated 20th June 2013 passed by the Waqf Board is set aside orvaried by the Tribunal. The necessary corollary is that the plaintiff Board is not required to seek a declaration that the suit property isthe Waqf Property. Conversely from the averments in the plaint itbecomes explicitly clear that defendant No.1 Municipal Corporationhas erected structures over the suit property and they are put to use on 23 04 2021 on 24 04 10 C.R.A. No. 16 2021 for various purposes.8.In the aforesaid fact situation the question as towhether the suit is tenable in the present form wrenches to the fore.The thrust of the submission on behalf of the defendants is that asimpliciter suit for prohibitory injunction without seeking the relief ofpossession is barred by law. To bolster up this submission Mr.Sapkal placed reliance on a judgment of the Rajasthan High Court inthe case of Kundan Mal and others Vs. Thikana Siryari and others AIR 1959 Rajasthan 146 wherein it was held that where plaintiff isnot in possession of the property in dispute he cannot sue forinjunction simpliciter. A strong reliance was also placed on thejudgment of the Supreme Court in the case of Anathula SudhakarVs. P. Buchi Reddyby L.Rs. And Ors. AIR 2008 SupremeCourt 2033 wherein the Supreme Court elaborately considered thescope of a suit for prohibitory injunction in different situations. Theobservations of the Supreme Court in paragraphs No. 11 to 14 areinstructive and thus extracted below:“11.The general principles as to when a meresuit for permanent injunction will lie and when itis necessary to file a suit for declaration and orpossession with injunction as a consequentialrelief are well settled. We may refer to them on 23 04 2021 on 24 04 11 C.R.A. No. 16 2021 briefly.11.1Where a plaintiff is in lawful or peacefulpossession of a property and such possession isinterfered or threatened by the defendant a suitfor an injunction simpliciter will lie. A person hasa right to protect his possession against anyperson who does not prove a better title byseeking a prohibitory injunction. But a person inwrongful possession is not entitled to aninjunction against the rightful owner.11.2Where the title of the plaintiff is notdisputed but he is not in possession his remedyis to file a suit for possession and seek inaddition if necessary an injunction. A person outof possession cannot seek the relief of injunctionsimpliciter without claiming the relief ofpossession.11.3Where the plaintiff is in possession buthis title to the property is in dispute or under acloud or where the defendant asserts titlethereto and there is also a threat of dispossessionfrom defendant the plaintiff will have to sue fordeclaration of title and the consequential relief ofinjunction. Where the title of plaintiff is under acloud or in dispute and he is not in possession ornot able to establish possession necessarily theplaintiff will have to file a suit for declaration possession and injunction. on 23 04 2021 on 24 04 12 C.R.A. No. 16 2021 12.We may however clarify that a prayer fordeclaration will be necessary only if the denial oftitle by the defendant or challenge to plaintiff’stitle raises a cloud on the title of plaintiff to theproperty. A cloud is said to raise over a person’stitle when some apparent defect in his title to aproperty or when some prima facie right of athird party over it is made out or shown. Anaction for declaration is the remedy to removethe cloud on the title to the property. On theother hand where the plaintiff has clear titlesupported by documents if a trespasser withoutany claim to title or an interloper without anyapparent title merely denies the plaintiff’s title itdoes not amount to raising a cloud over the titleof the plaintiff and it will not be necessary for theplaintiff to sue for declaration and a suit forinjunction may be sufficient. Where the plaintiff believing that defendant is only a trespasser or awrongful claimant without title files a mere suitfor injunction and in such a suit the defendantdiscloses in his defence the details of the right ortitle claimed by him which raises a seriousdispute or cloud over plaintiff’s title then there isa need for the plaintiff to amend the plaint andconvert the suit into one for declaration.Alternatively he may withdraw the suit for bareinjunction with permission of the court to file a on 23 04 2021 on 24 04 13 C.R.A. No. 16 2021 comprehensive suit for declaration and injunction.He may file the suit for declaration withconsequential relief even after the suit forinjunction is dismissed where the suit raised onlythe issue of possession and not any issue of title.13.In a suit for permanent injunction torestrain the defendant from interfering withplaintiff’s possession the plaintiff will have toestablish that as on the date of the suit he was inlawful possession of the suit property anddefendant tried to interfere or disturb such lawfulpossession. Where the property is a building orbuilding with appurtenant land there may not bemuch difficulty in establishing possession. Theplaintiff may prove physical or lawful possession either of himself or by him through his familymembers or agents or lessees licensees. Even inrespect of a land without structures as forexample an agricultural land possession may beestablished with reference to the actual use andcultivation. The question of title is not in issue insuch a suit though it may arise incidentally orcollaterally.14.But what if the property is a vacant site which is not physically possessed used orenjoyed In such cases the principles is thatpossession follows title. If two persons claim tobe in possession of a vacant site one who is able on 23 04 2021 on 24 04 14 C.R.A. No. 16 2021 to establish title thereto will be considered to bein possession as against the person who is notable to establish title. This means that eventhough a suit relating to a vacant site is for amere injunction and the issue is one ofpossession it will be necessary to examine anddetermine the title as a prelude for deciding thede jure possession. In such a situation wherethe title is clear and simple the court mayventure a decision on the issue of title so as todecide the question of de jure possession eventhough the suit is for a mere injunction. Butwhere the issue of title involves complicated orcomplex questions of fact and law or where courtfeels that parties had not proceeded on the basisthat title was at issue the court should not decidethe issue of title in a suit for injunction. Theproper course is to relegate the plaintiff to theremedy of a full fledged suit for declaration andconsequential reliefs.”The position was summarised in paragraph No. 17 asunder:“ 17.To summarize the position in regard tosuits for prohibitory injunction relating toimmovable property is as under(a)Where a cloud is raised over plaintiff’stitle and he does not have possession a suit for on 23 04 2021 on 24 04 15 C.R.A. No. 16 2021 declaration and possession with or without aconsequential injunction is the remedy. Wherethe plaintiff’s title is not in dispute or under cloud but he is out of possession he has to sue forpossession with a consequential injunction.Where there is merely an interference withplaintiff’s lawful possession or threat ofdispossession it is sufficient to sue for aninjunction simpliciter.(b)As a suit for injunction simpliciter isconcerned only with possession normally theissue of title will not be directly and substantiallyin issue. The prayer for injunction will be decidedwith reference to the finding on possession. Butin cases where de jure possession has to beestablished on the basis of title to the property as in the case of vacant sites the issue of titlemay directly and substantially arise forconsideration as without a finding thereon it willnot be possible to decide the issue of possession.(c)But a finding on title cannot be recordedin a suit for injunction unless there are necessarypleadings and appropriate issue regarding title(either specific or implied as noticed inAnnaimuthu Thevar Vs. Alagammal 2005(6) SCC202). Where the averments regarding title areabsent in a plaint and where there is no issuerelating to title the court will not investigate or on 23 04 2021 on 24 04 16 C.R.A. No. 16 2021 examine or render a finding on a question of title in a suit for injunction. Even where there arenecessary pleadings and issue if the matterinvolves complicated questions of fact and lawrelating to title the court will relegate the partiesto the remedy by way of comprehensive suit fordeclaration of title instead of deciding the issuein a suit for mere injunction.(d)Where there are necessary pleadingsregarding title and appropriate issue relating totitle on which parties lead evidence if the matterinvolved is simple and straightforward the courtmay decide upon the issue regarding title even ina suit for injunction. But such cases are theexception to the normal rule that question of titlewill not be decided in suits for injunction. Butpersons having clear title and possession suingfor injunction should not be driven to the costlierand more cumbersome remedy of a suit fordeclaration merely because some meddlervexatiously or wrongfully makes a claim or triesto encroach upon his property. The court shoulduse its discretion carefully to identify cases whereit will enquire into title and cases where it willrefer to plaintiff to a more comprehensivedeclaratory suit depending upon the facts of thecase.”9.Mr. Sapkal laid special emphasis on the proposition No. on 23 04 2021 on 24 04 17 C.R.A. No. 16 2021 11.2wherein it was postulated that where thetitle of the plaintiff is not disputed but he is not in possession hisremedy is to file a suit for possession and seek in addition ifnecessary an injunction. A person out of possession cannot seekrelief of injunction simpliciter without claiming the relief ofpossession. In the case at hand according to Mr. Sapkal on a plainreading of the plaint it becomes clear that the plaintiff is not inpossession of the suit property.10.Mr. Sapkal further urged that the observations inparagraph No. 12 of the aforesaid judgment wherein the SupremeCourt adverted to the possibility of plaintiff seeking amendment inthe plaint so as to convert the suit into one for declaration wereread and construed by the Tribunal out of context. The criticismadvanced by Mr Sapkal appears well merited. It is trite that whileconsidering an application for rejection of the plaint the Court has toconsider the averments in the plaint and upon a meaningful readingthereof arrive at a conclusion as to whether the plaint discloses acause of action or is barred by the provisions of any law. Thepossibility of the plaintiff resorting to provisions contained in OrderVI Rule 17 of the Code so as to infuse cause of action or take it outof the purview of the bar created by any law could not have been on 23 04 2021 on 24 04 18 C.R.A. No. 16 2021 permitted to influence the determination of the question of rejectionof the plaint. 11.Indubitably the aspect of rejection of the plaint turnsupon a meaningful reading of the averments in the plaint as a whole.In the case at hand the plaintiff Board has approached the Tribunalwith a case that somewhere in the year 1971 the name of defendantNo.1 Municipal Corporation came to be mutated to the record ofrights of the suit property without any acquisition or instrument.Mere mutation does not confer any right title and interest upon thedefendant No.1 Corporation. Undoubtedly there are averments inthe plaint to the effect that defendant No.1 has erected structuresover the suit land comprising Dr. Ambedkar Research Centre andother offices. The question that crops up for consideration is whether the suit without seeking the relief of possession in thepeculiar facts is untenable 12.I am not able to persuade myself to agree with thesubmission of Mr. Sapkal that the moment the plaintiff does notseek the relief of possession the suit for injunctive relief isunsustainable. The said issue turns upon the nature of theinjunctive relief. Even in the case of Anathula Sudhakar on 23 04 2021 on 24 04 19 C.R.A. No. 16 2021 the Supreme Court adverted to the distinct considerations whichmay arise where the property in question is a building or buildingwith appurtenant land and the property which is a vacant site. Inthe later cases the principle is that possession follows title. If twopersons claim to be in possession of a vacant suit site the one whois able to prove his title thereto will be considered to be inpossession as against the person who is not able to establish histitle. 13.A profitable reference in this context can be made to ajudgment of the Supreme Court in the case of Vishram alias PrasadGovekar and others Vs. Sudesh Govekarby legalrepresentatives and others 2017(11) Supreme Court Cases 345 wherein the plaintiff had sought the relief of mandatory injunctionseeking demolition of the construction carried out by the defendanton the suit property with the allegation that it was illegally put up bythe defendant on the plaintiffs’ land. In the said case the tenabilityof the suit was challenged on the ground that the plaintiffs were notin possession of the suit property. The Supreme Court distinguishing the judgment in the case of Anathula Sudhakarheld that the assertion that the defendants have carried outillegal construction did not imply that the plaintiff admitted the on 23 04 2021 on 24 04 20 C.R.A. No. 16 2021 possession of the defendant over the suit land and therefore thesuit was not untenable in the absence of any relief of possession.14.In the case at hand the nature of injunctive relief soughtby the plaintiff assumes critical significance. There are twodimensions to the relief sought by the plaintiff. One the defendantbe restrained from carrying out any kind of construction over thesuit property. Two the defendant be restrained from creating thirdparty interest over the suit property. These reliefs on a properconsideration have their genesis in the claim of title over the suitproperty. As indicated above until the declaration made by theWaqf Board U S. 40 of the Act 1995 holds the field the plaintiff isentitled to legally assert that the suit property is a Waqf Property.15.The relief of injunction restraining the defendants frommaking any kind of construction over the suit property cannot beequated with a relief of prohibitory injunction restraining thedefendants from causing obstruction to the possession of plaintiff which is often found in run of mill cases. With a categoricalassertion that the defendant No.1 has erected certain structuresover the suit property this relief of injunction seeking restraint onmaking construction over the suit property is required to be on 23 04 2021 on 24 04 21 C.R.A. No. 16 2021 construed as one to restrain the defendants from carrying outfurther construction. The second part of the injunctive relief i.e. ofrestraint from creating third party interest in the suit property is anexercise of incidence of ownership over the suit property plain andsimple. Armed with the declaration that the suit property is a WaqfProperty the plaintiff Board is within its rights in seeking such reliefof injunction irrespective of question of possession as it emanatesfrom the claim of title over the suit property.16.There is another facet to the question in controversy. Asindicated above the plaintiff Board is not enjoined to seekdeclaration of title. The plaintiff Board can lawfully seek the relief ofrestraining defendant from creating third party rights over the suitproperty. This part of the cause of action is not dependent upon thefactum of possession. In any event even if the case of thedefendant is taken as par that the plaintiff cannot seek the relief ofprohibitory injunction without seeking the relief of possession yetthe suit is competent to the extent of the second part of theinjunctive relief i.e. not to create third party interest in the suitland. 17.It is trite law that the rejection of the plaint envisaged by on 23 04 2021 on 24 04 22 C.R.A. No. 16 2021 the Order VII Rule 11 of the Code is rejection of the plaint as awhole. The plaint cannot be rejected in part. A profitable referencein this context can be made to the judgment of the Supreme Courtin the case of Sejal Glass Limited Vs. Navilan Merchants PrivateLimited 2018(11) Supreme Court Cases 780 wherein it wasenunciated that it is a settled law that a plaint as a whole can berejected under Order VII Rule 11 of the Code. If the plaint survivesagainst certain defendants or property Order VII Rule 11 will haveno application at all and the suit as a whole must then proceed totrial.18.The aforesaid pronouncement was followed by theSupreme Court in the case of Madhav Prasad Aggarwal and anotherVs. Axis Bank Limited and another 2019(7) Supreme Court Cases158 wherein the High Court had dismissed the suit as againstrespondent No.1 Axis Bank Limited by invoking provisions of OrderVII Rule 11(d) of the Code as the bar U S. 34 of the Securitisationand Reconstruction of Financial Assets and Enforcement of SecurityInterest Act 2002 was held to operate. The Supreme Courtreiterated the principle that the plaint can be rejected as a wholeand not in part. The observations in paragraph No. 12 are materialand thus extracted below: on 23 04 2021 on 24 04 23 C.R.A. No. 16 2021 “ 12.Indubitably the plaint can and must berejected in exercise of powers under Order 7 Rule11(d) CPC on account of non compliance withmandatory requirements or being replete withany institutional deficiency at the time ofpresentation of the plaint ascribable to clauses(a) toof Rule 11 of Order 7 CPC. In otherwords the plaint as presented must proceed as awhole or can be rejected as a whole but not inpart. In that sense the relief claimed byRespondent 1 in the notice of motion(s) whichcommended to the High Court is clearly ajurisdictional error. The fact that one or some ofthe reliefs claimed against Respondent 1 in thesuit concerned is barred by Section 34 of the2002 Act or otherwise such objection can beraised by invoking other remedies including underOrder 6 Rule 16 CPC at the appropriate stage.” ….. 19.In view of the aforesaid enunciation of legal position inthe facts of the case in my considered view the bar to the tenabilityof the suit in the absence of prayer of possession does not applywith equal force. The prayer for rejection of the plaint on the saidcount does not merit acceptance.20.The Tribunal does not seem to have committed any error on 23 04 2021 on 24 04 24 C.R.A. No. 16 2021 in observing that notice U S. 487 of the Act 1949 was not warrantedas the act attributed to defendant No.1 corporation cannot be said tohave been done or purported to be done in pursuance or executionor intended execution of the provisions of the said Act 1949. Thesubstratum of the plaintiff’s case is that the defendant No.1 corporation has arrogated the suit property though it is a WaqfProperty and unlawfully erected structures thereon. In thecircumstances the notice U S. 487 of the Act 1949 is plainly notwarranted.21.Mr. Sapkal made a strenuous effort to persuade theCourt to hold that the letter dated 25th September 2020 which wasaddressed to the Municipal Commissioner does not amount to anotice to the corporation. Reliance was sought to be placed on ajudgment of the learned Single Judge of this Court in the case ofBajirao Tukaram Manav Vs. Aministerative Officer and another 1985Bom. C.R. 587 wherein it was observed that havingregard to the distinct authorities created under the MunicipalCorporation Act it is not possible to accept the contention that thenotice to the Commissioner can also be said to be a notice to theCorporation within the meaning of Section 487 of the Act 1949.22.I do not find it necessary to delve into this aspect of the on 23 04 2021 on 24 04 25 C.R.A. No. 16 2021 matter as the Tribunal in my considered view was justified inobserving that in the facts of the case especially in the backdrop ofthe nature of allegations against defendant No.1 notice envisagedby Section 487 of the Act 1949 was not warranted.23.The upshot of aforesaid consideration is that this Court isnot persuaded to interfere with the impugned order albeit forreasons in addition to the reasons ascribed in the impugned order.This Court does not find that the Tribunal has committed anyjurisdictional error in rejecting the application for rejection of theplaint. The revision application thus deserves to be rejected.Hence the following order. O R D E RThe revision application stands rejected. No costs. JUDGEMadkar 