Kerala High Court
Madavana Masjidul Badariya Jamaath vs Unknown
Author: Anil K. Narendran
Bench: C.T.Ravikumar, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939
OP (WAKF).No. 50 of 2017 (R)
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I.A.NO.57 OF 2017 IN W.O.S.NO.18 OF 2016
OF THE WAQF TRIBUNAL, ERNAKULAM.
PETITIONERS/DEFENDANTS 1 AND 4 IN WOS NO.18 OF 2016:
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1. MADAVANA MASJIDUL BADARIYA JAMAATH,
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT
REPRESENTED BY ITS SECRETARY, ABUBACKER MASTER
AGED 56 YEARS, S/O.KOCHUMUHAMMED, ANGEVEETIL
MADAVANA P.O., PIN-680666.
2. ABUBACKER MASTER,
AGED 56 YEARS, S/O.KOCHUMUHAMMED, ANGEVEETIL
MADAVANA P.O., SECRETARY,
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
MADAVANA P.O., PIN-680666, THRISSUR DISTRICT.
BY ADVS.SRI.K.PAUL KURIAKOSE
SRI.ELDO KURIAKOSE
SRI.T.K.HASSAN
RESPONDENTS/PLAINTIFFS 1 TO 11 &
DEFENDANTS 2,3 & 5 TO 19 IN THE SUIT:
---------------------------------------
1. SEETHI K.A.,
AGED 51 YEARS, S/O.ALIKUNJU, KODAMBAT HOUSE
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
2. T.S.NASAR,
AGED 49 YEARS, S/O.T.V.SAIDALIKUTTY, THOTTUNGAL HOUSE
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT
3. ABDUL GAFOOR V K, AGED 38 YEARS
S/O.KHADER, MADAVANA P.O.
PIN-680666, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
4. SUDHEER V.A., AGED 41 YEARS
S/O.ALI, VALIYAVEETIL
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
CONTD...2
OP (WAKF).No. 50 of 2017 (R)
- 2 -
5. AMEER ALI T.A.,
AGED 40 YEARS, S/O.ABDU KUNJU MASTER, THANATHUPRAMBIL
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
6. K.C.HYDROSE,
AGED 75 YEARS, S/O.CHEKUNNI, KOCHIKARAN HOUSE
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
7. YOUSEF P.S.,
AGED 38 YEARS, S/O.SYED MUHAMED, VALIYAVEETIL
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
8. SIDDIQUE K.K.,
AGED 44 YEARS, S/O.KUNJU MOIDEEN, ERIYAD P.O.
PIN-680666, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
9. ALI C.B.,
AGED 43 YEARS, S/O.BEERAN, CHALAKKAL HOUSE
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
10. SHAMEER T.A.,
AGED 28 YEARS, S/O.ANSAR, THALIYAKUDY HOUSE
MADAVANA P.O., PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
11. ABDUL SALAM M.K.,
AGED 49 YEARS, S/O.KUNJU MOIDEEN
RESIDING AT MANTHURUTHY HOUSE, MADAVANA P.O.
ERIYAD, PIN-680666, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
12. THE KERALA STATE WAQF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD
KALOOR, KOCHI-682017.
13. ABDUL AKBAR M.A.,
AGED 56 YEARS, S/O.ABDUL KHADER M.H.
MANDAIPURATH HOUSE, MADAVANA P O, PIN-680666
PRESIDENT
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
MADAVANA P O, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
14. IBRAHIMKUTTY,
AGED 60 YEARS, S/O.KUNJAIRU, VICE PRESIDENT
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
MADAVANA P O, PIN-680666, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
CONTD...3
OP (WAKF).No. 50 of 2017 (R)
- 3 -
15. MUHAMMED AFSAL,
AGED 45 YEARS, S/O.MUHAMMED, JOINT SECRETARY
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
PADINJAREVEETIL, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
16. MOHIYUDIN K.M.,
AGED 43 YEARS, S/O.MUHAMMED, TREASURER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KADAMBOTTIL HOUSE, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
17. ABDUL GAFOOR K.M.,
AGED 48 YEARS, S/O.MOIDEEN KUNJU, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
MADAVANA P O, PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
18. ABDUL LATHEEF K.A.,
AGED 48 YEARS, S/O.ABDULKUNJU, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KONAMVEETIL, ERIYAD P.O., PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
19. K.K.NISAR,
AGED 40 YEARS, S/O.KOCHALI, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KOCHEEKARAN VADAKE VEETIL, MADAVANA P.O., PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
20. C A FASALU,
AGED 42 YEARS, S/O.ALI, CHALINGATTU
MEMBER, MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
MADAVANA P O, PIN-680666, ERIYAD VILLAGE
KODUNGALLUR TALUK, THRISSUR DISTRICT.
21. I.MUHAMMED KUTTY ZUHARI,
AGED 50 YEARS, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
THURAKKAL HOUSE, S/O.IBRAHIM, MADAVANA P O
PIN-680666, ERIYAD VILLAGE, KODUNGALLUR TALUK
THRISSUR DISTRICT.
22. MUHAMMED NAJEEB,
AGED 42 YEARS, S/O.ABDUL KHADER, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
VADAKKE VEETIL, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
23. MUHAMMED ALI,
AGED 54 YEARS, S/O.ABDULLA, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
VALIYAVEETIL, MADAVANA PO, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
CONTD...4
OP (WAKF).No. 50 of 2017 (R)
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24. P.A.MUHAMMED RAFEEK,
AGED 35 YEARS, S/O.ABDUL KHADER, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
PATHAYAPURAKKAL HOUSE, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
25. SHAFEER T.K.,
AGED 41 YEARS, S/O.KUNJUMUHAMMED, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
THANATHUPARAMBIL, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
26. K.M.SHIHAB,
AGED 35 YEARS, S/O.ASHRAF, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KARIMBANAKKAD HOUSE, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
27. NAZEER ALI T.A.,
AGED 43 YEARS, S/O.ABDUKUNJU MASTER, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KARIMBANAKKAD HOUSE, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
28. MUHAMMED NIZAR K.H.,
AGED 38 YEARS, S/O.HYDROSE, MEMBER
MADAVANA MASJIDUL BADARIYA JAMAATH COMMITTEE
KARIMBANAKKAD HOUSE, MADAVANA P O, PIN-680666
ERIYAD VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT.
BY SRI.K.A.JALEEL, SC., TRIDA
BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 24-07-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (WAKF).No. 50 of 2017 (R)
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APPENDIX
PETITIONERS' EXHIBITS
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EXT.P1 : PHOTOSTAT TRUE COPY OF THE PLAINT IN W.O.S.NO.18 OF 2016
FILED BEFORE THE WAQF TRIBUNAL, ERNAKULAM.
EXT.P2 : PHOTOSTAT TRUE COPY OF AD-INTERIM INJUNCTION ORDER DATED
10.05.2016 IN I.A.NO.159 OF 2016 IN W.O.S.NO.18 OF 2016 OF THE WAQF
TRIBUNAL, ERNAKULAM.
EXT.P3 : PHOTOSTAT TRUE COPY OF I.A.NO.57 OF 2017 IN W.O.S.NO.18 OF
2016 OF THE WAQF TRIBUNAL, ERNAKULAM.
EXT.P4 : PHOTOSTAT TRUE COPY OF JUDGMENT IN O.P(WAKF)NO.24 OF 2017 OF
THIS COURT.
EXT.P5 : PHOTOSTAT TRUE COPY OF I.A.NO.176 OF 2017 IN W.O.S.NO.18 OF
2016 OF THE WAQF TRIBUNAL, ERNAKULAM.
EXT.P6 : PHOTOSTAT TRUE COPY OF UNNUMBERED INTERLOCUTORY APPLICATION
IN O.P.(WAKF)NO.24 OF 2017 FILED BEFORE THIS COURT.
EXT.P7 : PHOTOSTAT TRUE COPY OF ORDER DATED 07.06.2017 IN THE
UNNUMBERED APPLICATION IN O.P.(WAQF)NO.24 OF 2017.
RESPONDENTS' EXHIBITS
----------------------
NIL
//TRUE COPY//
P.A.TO JUDGE
ami/
"CR"
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
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O.P.(Waqf)No.50 of 2017
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Dated this the 24th day of July, 2017
JUDGMENT
ANIL K. NARENDRAN, J.
The petitioners, who are defendants 1 and 4 in W.O.S.No.18 of 2016 on the file of the Waqf Tribunal, Ernakulam, are before this Court in this original petition filed under Article 227 of the Constitution of India seeking for an order to direct the said Tribunal to try the said suit along with I.A.No.57 of 2017 filed by respondents 1 to 11 herein, the plaintiffs in that suit, under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908, seeking for an order to prosecute the defendants in that suit, the petitioners and respondents 13 to 28 herein, for wilful violation and disobedience of Ext.P2 order of injunction granted by the Tribunal on 10.5.2016 in I.A.No.159 of 2016.
2. Heard the learned counsel for the petitioners/defendants 1 and 4 before the Tribunal.
3. The first petitioner is Madavana Masjidul Badariya Jama-ath and the second petitioner is its Secretary. Going by the averments in the original petition, the first petitioner is in possession and management of the waqf properties consisting of juma masjid, niskara O.P.(Waqf) No.50 of 2017 :-2-:
pally, madrassa and khabersthan, etc. The waqf is registered with the Kerala State Waqf Board with registration No.B9-5915/RA and the administration of the waqf is carried out by a Jama-ath Committee consisting of 18 members. The plaintiffs, who are the mahal members filed W.O.S.No.18 of 2016 before the Tribunal, seeking for a declaration that, juma prayer should be conducted in the usual practice followed in the waqf from time immemorial, i.e., the khatheeb should enter into the mimber prior to juma bank and thereafter he should start his jumu'a kuthuba in Malayalam in two sessions along with ham'd, swalat, dua, etc., as per usual practice and same will be followed by two rak'ath of juma namaz as decade long practice, custom, stipulation in bye-law and that, defendants 1 to 18 have no manner of right or authority to change the original mode of juma kuthuba against the above custom, practice and belief hitherto followed in any manner whatsoever.
4. Along with the suit, the plaintiffs filed I.A.No.159 of 2016 seeking for an ad interim injunction. In the said interlocutory application filed under Order XXXIX Rule 1 of the Code, the Tribunal passed Ext.P2 ad interim order of injunction dated 10.5.2016, restraining defendants/respondents 1 to 18, their men, agent, O.P.(Waqf) No.50 of 2017 :-3-:
khatheeb, imam or any person under them from changing the mode of juma kuthuba in the plaint schedule property, waqf/jama-ath hitherto followed in any manner whatsoever as per the decade long practice, custom and bye-law of the waqf.
5. Alleging wilful disobedience of Ext.P2 order of ad interim injunction, the plaintiffs filed I.A.No.57 of 2017 under Order XXXIX Rule 2A of the Code, seeking for an order to prosecute the defendants/ respondents 1 to 16 for their willful violation and disobedience of Ext.P2 order. The said interlocutory application is supported by an affidavit sworn to by the second plaintiff on his own behalf and on behalf of other plaintiffs, narrating the alleged acts of willful violation/ disobedience of Ext.P2 order of ad interim injunction by the defendants/ respondents 1 to 16.
6. Subsequent to the filing of the said interlocutory application, the plaintiffs moved this Court in O.P.(Wakf)No.24 of 2017 seeking for an early disposal of W.O.S.No.18 of 2016 as well as Ext.P3 interlocutory application. The said original petition was disposed of at the admission stage itself by Ext.P4 judgment dated 3.4.2017 and the same reads thus;
"The petitioners confined their relief to an early O.P.(Waqf) No.50 of 2017 :-4-:
consideration of Ext.P3 Interlocutory Application pending with the Wakf Tribunal, Ernakulam. Without pronouncing anything on merits, we direct the Wakf Tribunal to dispose of Ext.P3 application within a period of one month from the date of receipt of a copy of this judgment. Needless to say that the party shall be afforded an opportunity of hearing before orders are passed."
7. Subsequent to Ext.P4 judgment, defendants 1 to 6 and 8 to 16 filed I.A.No.176 of 2017 in I.A.No.57 of 2017 seeking for an order to adjudicate Ext.P3 application filed under Order XXXIX Rule 2A of the Code along with the suit, namely, W.O.S.No.18 of 2016. Thereafter, the petitioners herein moved this Court by filing an interlocutory application in O.P.(Wakf)No.24 of 2017 seeking for a direction, by way of clarification, directing the Waqf Tribunal to adjudicate both W.O.S.No.18 of 2016 as well as the prosecution petition jointly, in a time bound manner. The Registry noted defect and accordingly, the un- numbered interlocutory application was listed before the Bench. This Court by Ext.P7 order dated 7.6.2017 sustained the objection raised by the Registry. While dismissing the said interlocutory application, this Court observed that the remedy, if any, of the petitioners therein is to file original petition anew. Thereafter, the petitioners herein are before O.P.(Waqf) No.50 of 2017 :-5-:
this Court in this original petition, seeking for an order to direct the Tribunal to try W.O.S.No.18 of 2016 along with I.A.No.57 of 2017 .
8. The learned counsel for the petitioners would argue that, the issue involved in W.O.S.No.18 of 2016 is the mode of delivering juma kuthuba in the juma masjid, which can only be adjudicated after a full-fledged trial. The witnesses to be examined, the documents to be relied upon and the evidence to be tendered during the trial of the said suit and the inquiry in I.A.No.57 of 2017, the interlocutory application filed under Order XXXIX Rule 2A of the Code to prosecute the defendants/respondents 1 to 16 for the alleged willful violation and disobedience of Ext.P2 order, are the same. Therefore, the interest of the parties requires that both the suit and the interlocutory application are decided together.
9. Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 deals with consequence of disobedience or breach of injunction. Sub-
rule (1) of Rule 2A provides that, in the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms in which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the O.P.(Waqf) No.50 of 2017 :-6-:
property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. Sub-rule (2) of Rule 2A provides further that, no attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.
10. In V.Uma v. V.Balaji (AIR 2011 Madras 197) a Division Bench of the Madras High Court held that, the Trial Courts should make an attempt to take up applications Order XXXIX Rule 2A of the Code before the disposal of the suit as otherwise there is no point in giving interlocutory injunction after making out a prima facie case. Parties to the lis should not be allowed to flout the order of Court and avoid actions under the guise of pendency of the substantial proceedings. The main object of Order XXXIX Rule 2A of the Code is to uphold the majesty of judicial orders, as otherwise, it would erode the faith of litigants in the Justice Delivery System. Therefore, whenever such applications are filed, the Trial Courts should take up those applications O.P.(Waqf) No.50 of 2017 :-7-:
notwithstanding the pendency of the suit. In fact, the order passed under Order XXXIX Rule 2A of the Code is distinct and separate and an appeal would lie against the said order. Therefore, every attempt should be made by the Trial Courts to dispose of the applications filed under Order XXXIX Rule 2A of the Code, notwithstanding the pendency of the suit.
11. In Koshy P. Cherian v. T.R. Ramachandran (2012 (3) KLJ 386) the question that came up for consideration before a learned Judge of this Court was whether the learned Munsiff was right in disposing of the applications filed under Order XXXIX Rule 2A of the Code along with the suit, appreciating the evidence in both the proceedings in the same manner. Before the learned single Judge, the petitioners therein relied on the decision of a learned single Judge of the Allahabad High Court in Gyan Chand Jain v. XIIIth Addl.
District and Sessions Judge, Agra (AIR 1998 Allahabad 228), wherein it was held that, proceedings under Order XXXIX Rule 2A of the Code initiated on the ground of disobedience or breach of injunction order is in the nature of a criminal proceedings, as the person against whom such proceeding is initiated is liable to be detained in prison if it is found that he had committed breach of injunction order and that, O.P.(Waqf) No.50 of 2017 :-8-:
since a punishment is imposed and a person is sent to jail, the principles on which such proceedings are decided are entirely different. In such proceedings, principles of criminal law (as to the manner of appreciation of evidence) should apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the order of injunction. Hence a common judgment and order deciding the main suit and the application under Order XXXIX Rule 2A of the Code is not proper. Following the principle laid down in the decision of the Allahabad High Court in Gyan Chand Jain's case, a learned single Judge of this Court in Koshy P. Cherian's case set aside the order passed by the learned Munsiff, observing that, the suit and the interlocutory application under Order XXXIX Rule 2A of the Code should have been decided separately.
12. As has been laid down in the decisions referred to supra, the main object of Order XXXIX Rule 2A of the Code is to uphold the majesty of judicial orders, as otherwise, it would erode the faith of litigants in the Justice Delivery System. Since the parties to the lis should not be allowed to flout the order of Court and avoid actions under the guise of pendency of the substantial proceedings, whenever applications are filed under Order XXXIX Rule 2A of the Code, every O.P.(Waqf) No.50 of 2017 :-9-:
attempt should be made by the Trial Courts to dispose of such applications, notwithstanding the pendency of the suit. Further, in a proceedings under Order XXXIX Rule 2A of the Code, alleging disobedience of any injunction granted or other order made under Order XXXIX Rule 1 or Rule 2 of the Code or breach of any of the terms in which the injunction was granted or the order made, the principles of criminal law (as to the manner of appreciation of evidence) should apply and the plaintiff will have to establish beyond any shadow of doubt that the defendants had committed disobedience or breach of the order of injunction. Since, appreciation of evidence in a suit and that in an interlocutory application filed under Order XXXIX Rule 2A of the Code is entirely different, the suit and the interlocutory application filed under the said rule alleging disobedience of any injunction granted or other order made, should be decided separately.
13. In that view of the matter, the petitioner is not entitled for an order directing the Waqf Tribunal, Ernakulam to try the suit, namely, W.O.S.No.18 of 2016, along with I.A.No.57 of 2017 filed by the plaintiffs under Order XXXIX Rule 2A of the Code, to prosecute the defendants for the alleged wilful violation and disobedience of Ext.P2 order of injunction granted by the Tribunal on 10.5.2016 in I.A.No.159 O.P.(Waqf) No.50 of 2017 :-10-:
of 2016.
In the result, the original petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
C.T. RAVIKUMAR JUDGE Sd/-
ANIL K. NARENDRAN JUDGE ami/25.7.17 //True copy// P.A.to Judge