Kerala High Court
Unknown vs By Adv.Sri.T.M.Abdul Latiff on 5 September, 2014
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939
OP (WT).No. 57 of 2017
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PETITIONER(S)
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ABRAR JUMA MAZJID
MYLOOR KARA, VARAPETT VILLAGE, KOTHAMANGALAM TALUK,
REPRESENTED BY ITS SECRETARY, M.M.SHAKEER, AGED 41 YEARS,
S/O.MYTHEENPILLA, MACKANATTU HOUSE, MYLOOR KARA,
VARAPETTY VILLAGE, KOTHAMANGALAM TALUK.
BY ADV.SRI.T.M.ABDUL LATIFF
RESPONDENT(S):
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MYLOOR JUMA-ATH MOSQUE
MYLOOR KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK,
REPRESENTED BY ITS MUTHAWALLI A.M.ABDULKHADER,
AGED 66 YEARS, S/O.MOHAMMED BECK, AMALIPURATHU HOUSE,
MYLOOR KARA, VARAKETTY VILLAGE, KOTHAMANGALAM
TALUK.
BY ADV. SRI.K.M.FIROZ
BY ADV. SMT.M.SHAJNA
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 19-02-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (WAKF).No. 57 of 2017 (R)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NPO/490/14 FILED THE
RESPONDENT BEFORE THE MUNSIFF COURT,
MUVATTUPUZHA.
EXHIBIT P2 TRUE COPY OF THE SUMMON DATED 05-09-2014 ISSUED
TO THE PETITIONER BY THE MUNSIFF COURT,
MUVATTUPUZHA IN OS.NO.490 OF 2014.
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
PETITIONER BEFORE THE MUNSIFF COURT,
MVUATTUPUZHA IN I.A.NO.2909 OF 2014 IN O.S.NO.490 OF
2014.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 05-12-2016
PASSED BY THIS HONOURABLE COURT IN
WP(C)NO.22994 OF 2016.
EXHIBIT P5 TRUE COPY OF THE PETITION DATED 19-10-2016 FILED
BY THE PETITIONER BEFORE THE MUNSIFF COURT,
MUVATTUPUZHA IN O.S.NO.490 OF 2014.
EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
06-02-2017 FILED BY THE RESPONDENT BEFORE THE
MUNSIFF COURT, MUVATTUPUZHA IN O.S.NO.490 OF
2014.
C.T. RAVIKUMAR
&
MARY JOSEPH, JJ.
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O.P.(WT). No.57 OF 2017
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Dated this the 19th day of February, 2018
JUDGMENT
Ravikumar, J.
The petitioner herein is the defendant in O.S.No.490 of 2014 pending on the files of the Munsiff Court, Muvattupuzha. The said suit has been filed for recovery of possession of the madrassa building from the petitioner herein and also for injunction. The petitioner herein took up a contention in the written statement filed therein, to the effect that the Munsiff Court lacks jurisdiction on the subject matter involved therein and the matters in issue fall within the jurisdiction of the Wakf Tribunal. In that view of the matter, they filed Ext.P5 petition before the Munsiff Court praying for consideration of the preliminary issue regarding the maintainability of the suit. It is the delay in the matter of its consideration that constrained the petitioner to approach this Court by filing the captioned original petition mainly with the following prayer:-
O.P.(WT).57/2017 2
"To call for the records relating to Exts.P-1 to P-6 and to issue appropriate order or direction, directing the Munsiff Court, Muvattupuzha to consider and pass orders in the application filed by the petitioner, produced as Ext.P-5 by determining the maintainability issue; at the earliest and at any rate within one month."
2. We have heard the learned counsel for the petitioner and also the learned counsel for the respondent.
3. The learned counsel for the respondent/plaintiff in O.S.No.490 of 2014 contended that in the light of the provisions under sections 6 and 7 of the Wakf Act, it cannot be said that as regards the matter in issue, there is ouster of jurisdiction of the civil court. Essentially, the contention of the learned counsel is to the effect that the bar of jurisdiction contained in section 85 of the Wakf Act pertains only to the matters covered by sections 6 and 7 of the Wakf Act and therefore, in respect of other matters, there is no exclusion of jurisdiction of the civil court. To fortify the said contention, the learned counsel relied on the decision of the Apex Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf [2010 (3) KLT 862 (SC)]. The learned counsel for the petitioner/defendant therein O.P.(WT).57/2017 3 contended that a scanning of the said decision itself would reveal the hollowness of the aforesaid contention. In such circumstances, it is evident from the rival contentions that the question is whether there is exclusion of the jurisdiction of the civil court or not.
4. We will refer to the decision relied on by the respondent herein. We are of the view that a scrutiny of the paragraphs 16 and 18 of the decision in Ramesh Gobindram's case itself would answer the tenability of the contentions. After referring to sections 6, 7 and 85 of the Wakf Act, the Apex Court held in Ramesh Gobindram's case thus:-
"A plain reading of the above would show that the Civil Court's jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words b