Patna High Court
Janardan Yadav And Ors. vs The Bihar State Sunni Waqf Board And Ors. on 13 December, 1977
Equivalent citations: AIR1978PAT322, 1978(26)BLJR469, 1978CRILJ1318, AIR 1978 PATNA 322
ORDER Madan Mohan Prasad, J.
1. This is an application directed against an order by which the court below has refused to allow the petitioners to amend their memorandum of appeal in the following circumstance,
2. It appears that the opposite party (hereinafter called "the Board") made a requisition under Section 36-B of the Wakf Act, 1954 (Act No. 29 of 1954) to obtain and deliver possession of a property alleged to be a Waqf property. The Collector, accordingly, passed an order under Sub-section (2) of the aforesaid section. Being aggrieved, the petitioners filed an appeal as provided under Sub-section (4) thereof. The provision of law under Which the appeal was filed wag mentioned therein as Section 36-B (4) of the Act. It appears, however, that in the prayer portion the prayer was to set aside the order passed by the Chairman of the Board as also the order of the Special Officer of the Board, in pursuance of which, the order of Collector was passed. On a later date, however, the petitioners filed a petition for amendment of the memorandum of appeal. It was explained therein that the order of the Collector was passed only in pursuance of the order of the Chairman and the Special Officer of the Board; the appeal was intended to be one against the order of the Collector also and further that the order of the Collector was filed as annexure to the memorandum of appeal. It was said that although in the memorandum of appeal these facts had been clearly stated and the provision of law under which the appeal was filed had also been equally clearly stated, on account of inadvertent mistake some words had been left out in the portion "being aggrieved by........."
as also in the prayer portion of the memorandum and hence, an amendment was prayed for, to add in that portion words to show that the appeal was against the order of the Collector and the notice served thereunder. A prayer was also made to add relevant words to that effect in the prayer portion as well. Opposition was made by the Board to this petition, on the ground that the appeal was not directed against the order of the Collector and hence there was no appeal, that the order of the Collector had not been filed, that the amendment, if allowed, would change the nature of the case and that the appeal having become time barred, the prayer for amendment should not be allowed. The learned Additional District Judge on the basis of these objections refused to allow the amendment prayed for. Hence, this application,
3. Looking at the original memorandum of appeal, it is quite clear that the provisions of law, as earlier stated under which the appeal was filed has been clearly mentioned as Section 36-B (4) of the Act. There can be thus no doubt so far as this is concerned that the appeal bore the provision of law under which the appeal had been filed and the appeal purported to be one under that. On the second point it also appears that to the original memorandum of appeal the notice which had been issued by the Collector under Sub-section (2) of Section 36-B of the Act had been annexed. The report of the enquiry made under Section 36-B of the Act by the Special Officer of the Board and the order of the Board passed thereon had also been appended as an-nexures. The court below is, thus, not correct in saying that the order had not been filed at all.
4. The questions thus which remain to be answered are whether the amendment would change the nature of the appeal as also whether the right of appeal was barred on the date of the amendment and for that reason it could uot be allowed,
5. On the first point from what has been stated it is obvious that the appeal was filed under Section 36-B (4) of the Act. It is true that in the statement of facts grievance has been made against the order passed by the Board under the im-pressioin that the order of the Collector was merely a subsidiary order and one which he was bound to pass on the requisition made by the Board. Section 36-B of the Act reads as follows:
"36-B. Recovery of Waqf Property transferred in contravention of Section 36-A--(1). If the Board Is satisfied, after making an inquiry in such manner as may be prescribed that any immovable property of a Waqf entered as such in the register of Waqfs maintained under Section 26, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 36-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under Sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order, (3) Every order passed under Sub-sec. (2) shall be served-
(a) by giving or tendering the order or by sending it by post to the person for whom it is intended;
(b) if such person cannot be found, by affixing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates : Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under Sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situate and the decision of the district Court on such appeal shall be final.
Explanation.-- In this sub-section, "district court" means, in any area for which there is a city civil court, and, in any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under Sub-section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for' the purpose and deliver it to the Board.
(6) In exercising his functions under this section, the Collector shall be guided by such rules as may be made in this behalf by the State Government, It is obvious from a reading of Section 36-B of the Act that the enquiry is to be made by the Board, the decision has to be arrived at by the Board, the requisition to obtain delivery of possession has to be made by the Board and on receipt of requisition under Sub-section (1) the Collector has to pass order under Sub-section (2) directing the person in possession to deliver the property to the Board. Sub-sec. (4) provides for an appeal against the order of the Collector passed under Sub-section (2) within a period of 30 days from the date of the service of the order. No appeal is provided as such against the order passed by the Board. Thus, in the present case when the appeal purported to be one under Sub-section (4) there is no room for the argument that the appeal was not intended to be one directed against the order of the Collector. It is quite another thing that there was an omission to state at two relevant places that the petitioners were aggrieved with the order of the Collector or that the order of the Collector be set aside, under the impression that the notice was issued by the Collector and, therefore, the substantive order was that of the Board. If they omitted to make the necessary prayer that would not mean that the appeal itself was intended to be anything other than an appeal against the order of the Collector as provided by law. It is well known that in order to gather what a plaint or a memorandum of ap-peal is directed against, one must read it as a whole to find out the intent and the purpose thereof. Pleadings are drafted in an artificial manner in this country and this fact has been noticed in so many decisions of Courts. It is also well settled that the procedural law is to help justice rather than hinder it. If there had been an appeal provided against the order of the Board, perhaps, it could have been said that the present appeal was directed against that order and that now if it is allowed to be directed against the order of the Collector it would change the nature of the case. So far as the nature of the case is concerned, it is well known, that the person was really aggrieved by the order of the Collector passed in pur-suance of the requisition. There is no question in the present case, thus, of any change in the nature of the case. In my view, the court below has erred in accepting the objection made by the Board in this behalf.
6. The question of limitation also does not arise. True, if a right is barred, the court must consider that prejudice would result to the other side. It is not a case where no appeal had been filed. It is not a case where an appeal had been filed against any other order appealable. In this case the right of appeal has been exercised by filing a memorandum of appeal as provided by law. It is well settled that where the nature of the case does not change, in other words, where the other parties are not taken by surprise on the subject matter of the suit or an appeal, there is no question of prejudice. It is equally well settled that where an amendment involves merely a different or additional approach to the case, it should be allowed (See A. K. Gupta and Sons v. Damodar Valley Corpn., (AIR 1967 SC 96)). In the case of L. E. Works v. Astt. Commr. Sales Tax (AIR 1968 SC 488), the learned Judges of the Supreme Court held that the expressions "appeal" and "memorandum, of appeal" are used to denote two distinct things and they observed as follows (at p. 492):
"The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the Judicial examination is invited. For purposes of limitation and for purpose of the rules of the Code it is required that a written memorandum of appeaj shall be filed." Their Lordships said all this with regard to Order 41 of the Civil P. C. It follows from the observation aforesaid that the memorandum of appeal has to be filed within a certain time prescribed by law. There is no denial in the present case, that such a memorandum of appeal was filed, within time, stating the correct position of law. The date of filing of the memorandum would thus determine as to whether the appeal was filed within time or not and, it is not the ground raised in the memorandum which would do so, Therefore, in the present case it cannot be said that the appeal under Section 36-B (4) was not filed on the date within the period prescribed by the law of limitation.
7. Counsel for the opposite party has raised another point which deserves to be noticed. He has urged that the petition of amendment has been filed under Order VI Rule 17 of the Civil P. C. which applies to pleadings like plaint and written statement alone, as would appear from Rule 1 of Order VI. Accordingly, it has been contended that it does not apply to memorandum of appeal. It has been contended that where the memorandum of appeal is not drawn up in the manner prescribed in view of Rule 3 of Order 41, it may be rejected or returned to the appellant for the purpose of being amended within a time to be fixed by the Court or allowed to be amended then and there. Learned Counsel has, further, contended that the provision of the Code of Civil Procedure relating to appeal would not apply to an appeal under Section 36-B (4) of the Waqf Act. No decision in support of the argument has been cited and it is said that the question is one of first impression. Be that as it may, the point does not appear to me to be of any difficulty. Section 36-B of the Act provides for an appeal to the "district court" which means, any city civil court or a principal court of original jurisdiction. There are two things which follow from the aforesaid. Where there is a city civil court the appeal lies to that Court. The forum of appeal has some relevancy which I shall point out hereafter. Under Section 141 of the Civil P. C. the procedure provided in the Code in regard to suits is to be followed, as far as applicable, in all proceedings In any court of civil jurisdiction. That provision, however, relates to original matters where the procedure prescribed for a suit can be followed. A Civil Court of appeal is also bound under the Code to follow the procedure prescribed under the Code. The very fact that the legislature has made the Civil Court the forum of appeal, obviously indicates that the appeal is to be filed, entertained, heard and disposed of in the manner provided by the Code, It is obvious that the Waqf Act does not provide any pro-
cedure for the hearing of the appeal, There seems to be a lacuna in the Act in as much as it does not contain any provision making the procedure prescribed in the Code of Civil Procedure applicable to appeals under Section 36-B (4) of the Act. Perhaps, the legislature would do well to say so; but even in the absence of such a provision, I cannot persuade myself to believe that the court of appeal is left to follow any procedure which it likes or which it may lay down for itself while hearing an appeal under Section 36-B. In the absence of anything contrary to that contained in the Civil P. C, it logically follows from the fact that the appeal is provided to Civil Court that the Civil P. C. in that respect should apply. I am unable to accept the contention that the Civil P. C. not being applicable to appeals under Section 36-B, the memorandum of appeal could not be amended. Order VI Rule 17 of the Code no doubt provides for an amendment of pleadings which means plaint and written statement. In view of Sub-section (2) of Section 107 of the Code, however, an Appellate Court can exercise the same power as the trial Court in a suit. Thus, the appellate court can allow amendment of memorandum of appeal by applying the provisions of Order VI Rule 17 of the Code. Rule 3 of Order 41 deals with amendment of pleadings only when the memorandum is not drawn up in the manner prescribed in Order 41. In such cases either the memorandum is rejected or returned to the appellant for the purpose of being amended or allowed to be amended then and there. It does not apply to amendment of the nature which does not relate to the manner of drawing up of a memorandum as prescribed in Order 41. There is thus no valid reason for holding that the principle of Order VI Rule 17 cannot be extended to appeals. In my view, therefore, the provision contained in Order VI Rule 17 can be applied to cases or appeal under Section 36-B (4) of the Waqf Act. Assuming that the Code does not apply, still there is no reason why the principle laid down in that provision of law should not apply to appeals under the Waqf Act. I am, thus, unable to accept the contention of the learned Counsel in this respect.
8. Counsel raised a further point with regard to the scope of the appeal under Section 36-B, namely, whether the appellant can raise grounds with regard to the correctness or legality of the order passed by the Board based on its enquiry and requisitioning the Collector to obtain and deliver possession to the Board of the Property found to be a waqf property. I am not inclined to answer this question for that would be with regard to the merit of appeal which has yet to be heard and disposed of by the court below. For the present, I am only concerned with the question as to whether the amendment prayed for ought to have been allowed or not.
9. In the result, this application is allowed. The court below is directed to allow the amendments prayed for and proceed in accordance with law. In the circumstances of the case, however, there will be no order as to costs.