Karnataka High Court
Zabi Ulla Khan vs U V Ashokan on 17 April, 2023
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CRP No. 137 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 137 OF 2023
BETWEEN:
ZABI ULLA KHAN,
S/O SAMI ULLA KHAN,
AGED ABOUT 42 YEARS,
R/AT FORT (KHILA),
KUNIGAL TOWN,
TUMKUR DISTRICT.
...PETITIONER
(BY SRI. A. MAHESH CHOWDHARY, ADVOCATE)
AND:
1. U.V. ASHOKAN,
W/O UNNIKRISHNA,
AGED ABOUT 52 YEARS,
R/AT KUMBARA BEEDHI,
MADDUR ROAD, KUNIGAL TOWN,
TUMKUR DIST.
Digitally 2.
signed by THE KARNATAKA STATE BOARD OF AUQAF,
SUMA DAR-UL-AUQAF, NO.6,
Location: CUNNINGHAM ROAD,
HIGH COURT BANGALORE - 560052,
OF
KARNATAKA REP. BY ITS CHIEF EX. OFFICER
3. CENTRAL MAJLIS-E-SHOORA,
JAMIA MASJID,
OFFICE OF HAZRATH HAKIM,
ALI SHAH COMPLEX,
B.M. ROAD, KUNIGAL TOWN,
TUMKUR DISTRICT.
REP BY ITS SECRETARY
...RESPONDENTS
(BY SRI. MUIZ AHMED KHAN USMANI, ADVOCATE FOR RESPONDENT
NO.1;
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CRP No. 137 of 2023
VIDE ORDER DATED 24.02.2023 SERVICE OF NOTICE TO
RESPONDENT NOS.2 AND 3 IS DISPENSED WITH)
THIS CRP IS FILED UNDER SECTION 83(9) OF THE WAKF ACT,
1955, AGAINST THE ORDER DATED 10.02.2023 PASSED ON
I.A.NO.VII IN O.S.NO.28/2022 ON THE FILE OF THE XXXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-14)
BENGALURU, HOLDING C/C OF KARNATAKA WAQF TRIBUNAL
BENGALURU DIVISION, BENGALURU, DISMISSING THE I.A. NO.VII
FILED UNDER ORDER 7 RULE 11(d) READ WITH SECTION 89 OF THE
WAQF ACT, 1995.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed challenging an Order dated 10.02.2023 passed by the Karnataka Waqf Tribunal, Bengaluru Division, Bengaluru (henceforth referred to as 'the Tribunal') in O.S. No.28/2022 by which an application (I.A No.VII) filed by the petitioner for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short, 'the CPC') read with Section 89 of the Waqf Act, 1995 (for brevity, 'the Waqf Act') was rejected.
2. The respondent No.1 filed a suit in O.S. No.28/2022 before the Tribunal for perpetual injunction restraining the defendant No.2 / respondent No.3 herein from illegally -3- CRP No. 137 of 2023 dispossessing him from the suit schedule shop without the due process of law. The defendant No.1 was the Karnataka State Board of Auqaf (for short, 'the Board') while defendant No.2 was the Waqf Institution and defendant No.3 was impleaded party in the suit who was claiming his possession over the suit schedule shop.
3. The petitioner / defendant No.3 filed an application (I.A. No.VII) under Order VII Rule 11(d) of the CPC read with Section 89 of the Waqf Act to reject the plaint as the plaintiff had failed to issue a statutory two months' prior notice to the Board as provided under Section 89 of the Waqf Act, before filing the suit.
4. This application was contested by the plaintiff who claimed that the relief sought in the suit was for permanent injunction and not mandatory injunction and the Board was not prejudiced in not issuing a notice and therefore, defendant No.3 cannot raise that as a ground for rejection of the plaint. He claimed that no relief was sought for against the Board and the relief was only against defendant No.2.
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5. The Tribunal after considering the contentions urged by the learned counsel for the parties, rejected the application (I.A No.VII) in terms of the Order dated 10.02.2023.
6. Being aggrieved by the same, the present petition is filed.
7. Learned counsel for the petitioner / defendant No.3 submitted that the Registry of the Tribunal had raised an objection regarding maintainability of the suit as the plaintiff had failed to comply with Section 89 of the Waqf Act. He submitted that the plaintiff was bound to issue a notice to the defendant No.1 before filing a suit. He submitted that the defendant No.2 is also entitled to be notified of any suit or other proceedings to be initiated against it. He submitted that the Tribunal without considering the maintainability of the suit as against defendant Nos.1 and 2 rejected the application though it was bound to consider the maintainability of the suit for non-compliance of Section 89 of the Waqf Act.
8. Learned counsel for the petitioner relied upon the judgment rendered by the High Court of Bombay in Syed -5- CRP No. 137 of 2023 Abdul Razzak Aminuddin, Malang Badshah Quadri and Another v. Maharashtra State Board of Wakfs Head Office Panchakki and Others [2009 SCC OnLine Bom 1017], and contended that in similar circumstances, the High Court of Bombay had held that a suit filed without compliance of Section 89 of the Wakf Act, 1995 is not maintainable. He also relied upon the judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in The Andhra Pradesh State Wakf Board v. Tati Venkata Sheshagiri Rao and Others [2001 (2) A.P.L.J. 489 (HC)] and contended that a suit against the State Wakf Board without complying Section 89 of the Wakf Act, 1995 is not maintainable. He further relied upon the Judgment of the High Court of Madras in M.S. Abdul Hameed v. S.M. Sheik Mohammed and 4 Others [2002 (5) CTC 94] and contended that Section 89 of the Wakf Act, 1995 is mandatory and no suit can lie without compliance of Section 89 of the said Act and that under Section 89 of the Wakf Act, 1995 the Tribunal has no power to dispense with the notice. He further relied upon the Judgment of a coordinate Bench of this Court in W.P. No.78268/2013 (disposed off on 22.08.2013) and contended that this Court while examining an -6- CRP No. 137 of 2023 order of dismissal passed by the Tribunal on the ground of non- compliance of Section 89 of the Wakf Act, 1995 upheld the same and granted liberty to the plaintiff in that suit to comply Section 89 of the Wakf Act, 1995 and then initiate fresh proceedings. He, therefore, submits that in a slew of cases, various High Courts have held that Section 89 of the Waqf Act is mandatory.
9. Per contra, the learned counsel for the plaintiff / respondent No.1 submitted that the suit was for perpetual injunction to restrain defendant No.2 from dispossessing the plaintiff from the suit schedule property. He submits that no relief against the Board was sought for in the suit and the Board was arrayed as a formal party in the suit. Even otherwise, the Board is not aggrieved by non-issuance of the notice under Section 89 of the Waqf Act and defendant No.3 cannot exploit the ground available for the Board to contend that the suit is not maintainable. He further submitted that if the plaint was rejected qua the defendant No.1, yet the suit could continue against defendant Nos.2 and 3. He relied upon the judgment of this Court rendered in similar circumstances in CRP No.428/2022 (disposed off on 23.03.2023) and contends -7- CRP No. 137 of 2023 that the Tribunal had rightly rejected the application filed by defendant No.3.
10. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for respondent No.1.
11. It is no doubt true that when a suit is filed against the Board, it is mandatory that two months' prior notice is issued to the Board and the right to dispense with such notice is always with the Tribunal. Having regard to the facts pleaded in the suit, if the Tribunal feels that issuance of a two months' notice prior to the suit could defeat the purpose of approaching the Tribunal, it could very well dispense with the notice.
12. In the case on hand, the suit is filed for perpetual injunction restraining defendant No.2 from dispossessing the plaintiff from the suit schedule property and no relief is sought for against defendant No.1 - Board in the suit. As rightly contended by the learned counsel for the plaintiff/respondent No.1, the Board was arrayed as a formal party in the suit. Even otherwise, non-issuance of two months' notice prior to filing of the suit to the Board is a ground available only to the -8- CRP No. 137 of 2023 Board and not to defendant No.3 and since the Board is not prejudiced by the Orders that may be passed by the Tribunal, it did not raise any ground regarding maintainability of the suit filed by the plaintiff. Defendant No.3 who is an interloper cannot take this as a ground to non-suit the plaintiff. This Court had already taken a similar view in CRP No.428/2022. There is no reason why the earlier order dated 23.03.2023 passed by this Court in CRP No.428/2022 should not be followed.
13. The Judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in The Andhra Pradesh State Wakf Board's case (supra) relied upon by the learned counsel for the petitioner was invariably rendered in a revision petition filed by the State Wakf Board and therefore, the said judgment is not applicable to the facts of this case. In so far as the judgment of the High Court of Bombay in Syed Abdul Razzak Aminuddin's case (supra) is concerned, the plaintiffs in that suit had sought for reliefs against the Maharashtra State Board of Wakfs and therefore, the Maharashtra Wakf Tribunal entertained an application under Order VII Rule 11(d) of the -9- CRP No. 137 of 2023 CPC., read with Section 89 of the Wakf Act, 1995 and rejected the plaint against defendant No.1 and directed that the suit shall proceed against the other defendants. Hence, the High Court of Bombay dismissed the civil revision petition and held that there was no illegality and / or perversity in the impugned order passed by the learned Presiding Officer, Maharashtra Wakf Tribunal. In the present case, no relief is sought for against the Board and no prejudice is caused to the Board in entertaining a suit. So far as the judgment of the High Court of Madras in M.S. Abdul Hameed's case (supra) is concerned, there too the relief was sought for against the Tamil Nadu Wakf Board and therefore, the High Court of Madras held that the requirement of compliance of Section 89 of the Wakf Act, 1995 is inescapable. Likewise, in the judgment of a coordinate Bench of this Court in W.P. No.78268/2013 relied upon by the learned counsel for the petitioner, the petitioner therein had challenged constitution of a Committee by the Wakf Board and therefore, the said judgment is not applicable to the facts of this case.
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CRP No. 137 of 2023In that view of the matter, this petition lacks merit and same is dismissed.
Pending interlocutory application, if any, stands disposed off.
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JUDGE SMA List No.: 1 Sl No.: 56