Karnataka High Court
Syed Ali Abbas vs M/S Haji Erahim Saits Wakf on 15 January, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.42277/2012 (GM-CPC)
BETWEEN:
Syed Ali Abbas,
S/o.Late Syed Ahmed Ali,
Aged about 57 years,
No.21, Castle Street.
Bangalore - 560 025. ...Petitioner
(By Sri.M.A.Humayuh, Adv.,)
AND:
1. M/s.Haji Erahim Sait's Wakf,
Office at No.129, Greams Road,
Cheenai - 600 006.
Rep. by the Muthavalli,
Sri.M.Fuaad Musvee,
S/o.Late M.Ebrahim Musvee,
Aged Major.
2. Syed Wazeer Abbas,
S/o.Late Syed Ahmed Ali,
No.3, Saleh Arcadia Apartments,
Leonard Lane,
Richmond Town,
Bangalore - 56 025.
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3. Syed Zaheer Abbas,
S/o.Late Syed Ahmed Ali,
No.96, Austin Town Layout,
Main Road, Bangalore - 25.
4. Syed Gulam Abbas,
S/o.Late Syed Ahmed Ali,
I.K.Main Road, Alipur,
Via Thonde Bavi Post,
Gowribidnur Taluk - 561 224.
5. Syed Mohammed Abbas,
S/o.Late Ahmed Ali,
No.29, VR (Venkatareddy Layout),
80ft. road, Koramanagala 6th Block,
Bangalore - 560 080.
6. Shahwar Begum,
D/o.Late Syed Ahmed Ali,
I.K.Main Road,
Alipur,
Via Thonde Bavi Post,
Gowribidnur Taluk - 561 224.
7. Shahenshah Begum,
D/o.Late Syed Ahmed Ali,
I.K.Main Road,
Alipur,
Via Thonde Bavi Post,
Gowribidnur Taluk - 561 224.
8. Gulnaz Begum,
D/o.Late Syed Ahmed Ali,
6/1, 4th Cross, Aane Palya,
Bangalore - 560 030.
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9. Kawalnawaz Begum,
D/o.Late Syed Ahmed Ali,
I.K.Main Road,
Alipur,
Via Thonde Bavi Post,
Gowribidnur Taluk - 561 224. ...Respondents
(By Sri.M.A.Siddiq, Adv., for R1)
(R2-9 Notice dispensed with)
******
This petition is filed under Article 226 and 227 of the
Constitution of India praying to quash the impugned order
dated 21.8.12 passed on IA No.6 in SC 15470/11 on the file
of the Addl. Small Caused Judge, Mayo Hall, Bangalore vide
Ann-A.
This petition coming on for preliminary hearing this
day, the Court made the following:-
ORDER
Heard the learned counsel for the petitioner and also the learned counsel for the respondent No.1.
2. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in -4- question, the order dated 21.8.2012, passed by the trial court in S.C.No.15470/11 on I.A.No.6.
3. By the impugned order, the trial court has deferred consideration of I.A.No.6 along with the main matter. Therefore, this writ petition.
4. The 1st respondent has filed suit in S.C.No.15470/11 for ejection of the petitioner and respondents 2 to 9 and also for damages. In the said suit, the petitioner has filed I.A.No.6 under section 85 of the Wakf Act praying to dismiss the suit. The trial court has deferred consideration of I.A.No.6 along with the main matter. Therefore, this writ petition.
5. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the suit is barred under section 85 of the Wakf Act, 1995 and therefore, the trial court should have considered I.A.No.6 without deferring it. He therefore -5- submitted that the impugned order cannot be sustained in law.
6. As against this, the learned counsel for the 1st respondent submitted that the impugned order does not call for interference. He also submitted that it is only to protract the proceedings I.A.No.6 has been filed and therefore, the impugned order does not call for interference. He placed reliance on the decision of the Hon'ble Supreme Court reported in (2010)8 SCC 726.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arises for my consideration is, Whether the impugned order calls for interference?
9. It is relevant to note, the suit in S.C.No.15470/2011 has been filed by the 1st respondent for ejection and damages. The petitioner has filed I.A.No.6 praying to dismiss the suit. Section 85 of the Wakf act -6- provides that, no suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a tribunal. I.A.No.6 has been filed raising question of jurisdiction. The trial court should have considered I.A.No.6 and passed appropriate orders. Instead of that, the trial court has deferred consideration of I.A.No.6 along with the main matter which is not correct. The decision relied upon by the learned counsel for the respondent can be considered while considering I.A.No.6 on merits. The impugned order cannot be sustained in law.
Accordingly, the writ petition is allowed and the impugned order dated 21.8.2012 deferring consideration of I.A.No.6 in S.C.No.15470/2011 is hereby set aside. The trial court is directed to consider I.A.No.6 in accordance with law by giving opportunity to the parties within four weeks from the date of receipt of a copy of this order. -7-
I.A.No.1/13 does not survive for consideration and accordingly, it is rejected.
Sd/-
JUDGE.
Dvr: