Kerala High Court
Hassainar Musliar vs Hassainar Musliar
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
TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939
OP (WAQF).No. 42 of 2017 (R)
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(AGAINST THE ORDER DATED 2.5.2017 IN IA NOS.11 AND 12 OF 2017
IN W.O.S.No.1 OF 2017 ON THE FILES OF WAQF TRIBUNAL, ERNAKULAM.)
PETITIONERS/RESPONDENTS/DEFENDANTS 1 AND 2 IN THE SUIT:
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1. HASSAINAR MUSLIAR, AGED 65 YEARS
S/O.KOYA, PARAKKAL HOUSE
KODAKKADU P.O., PALAKKAD DISTRICT.
2. KASIM SAQAFI,
AGED 38 YEARS, S/O.MOIDU, MELETHIL HOUSE
KODAKKADU P.O., MANNARKKADU, PALAKKAD DISTRICT.
BY ADVS.SRI.K.PAUL KURIAKOSE
SRI.T.K.HASSAN
RESPONDENTS/PETITIONERS 1 TO 3 IN THE IAs & WAQF BOARD/PLAINTIFFS 1 TO 3
IN THE SUIT & WAQF BOARD:
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1. KODAKKADU NUSRATHUL ISLAM MAHALLU COMMITTEE,
PRESIDENT, P.K.IMPICHIKOYA THANGAL, AGED 52 YEARS
S/O.LATE POOKUNJUKOYA THANGAL, PONNANIKUNNATH HOUSE
KODAKKAD P.O., MANNARKAD TALUK, PALAKKAD DISTRICT-678583.
2. K.ABDU HAJI,
AGED 65 YEARS, S/O.AHAMED KUTTY, KARUNIAN HOUSE
KODAKKAD P.O., VICE PRESIDENT
KODAKKADU NUSRATHUL ISLAM MAHALLU COMMITTEE
KODAKKAD-678583.
3. V.ABOO,
AGED 56 YEARS, S/O.KUNJAPPU, VENNAKKATTU HOUSE
KODAKKAD P.O., SECRETARY
KODAKKADU NUSRATHUL ISLAM MAHALLU COMMITTEE
KODAKKAD-678583.
4. THE KERALA STATE WAQF BOARD,
VIP ROAD, KALOOR, ERNAKULAM-682017,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
R3 BY SRI.SHABU SREEDHARAN
R4 BY SRI.K.SHIBILI NAHA, SC, KERALA STATE WAQF BOARD
THIS OP (WAQF) HAVING COME UP FOR ADMISSION ON 20-06-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (WAQF).No. 42 of 2017 (R)
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APPENDIX
PETITIONERS' EXHIBITS
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EXT.P1 : PHOTOSTAT TRUE COPY OF PLAINT IN W.O.S.NO.1 OF 2017.
EXT.P2 : PHOTOSTAT TRUE COPY OF THE BYE-LAW OF THE 1ST
RESPONDENT/PLAINTIFF JAMAATH.
EXT.P3 : PHOTOSTAT TRUE COPY OF ORDER UNDER SEC.145(4) OF CR.P.C. DATED
26/12/2016 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, OTTAPPALAM.
EXT.P4 : PHOTOSTAT TRUE COPY OF I.A.NO.11 OF 2017 IN W.O.S.NO.1 OF 2017.
EXT.P5 : PHOTOSTAT TRUE COPY OF I.A.NO.12 OF 2017 IN W.O.S.NO.1 OF 2017.
EXT.P6 : PHOTOSTAT TRUE COPY OF COUNTER AFFIDAVIT DATED 16/01/2017 FILED
IN I.A.NO.11 OF 2017 IN W.O.S.NO.1 OF 2017.
EXT.P7 : PHOTOSTAT TRUE COPY OF COUNTER AFFIDAVIT DATED 16/01/2017 FILED
IN I.A.NO.12 OF 2017 IN W.O.S.NO.1 OF 2017.
EXT.P8 : PHOTOSTAT TRUE COPY OF COMMON ORDER DATED 02/05/2017 IN
I.A.NOS.11 AND 12 OF 2017 IN W.O.S.NO.1 OF 2017 OF THE WAQF TRIBUNAL,
ERNAKULAM.
EXT.P9 : PHOTOSTAT TRUE COPY OF RECEIPTS MARKED AS EXHIBIT A-5 BY THE
COURT BELOW.
EXT.P9(a) : PHOTOSTAT TRUE COPY OF RECEIPTS MARKED AS EXHIBIT A-5 BY THE
COURT BELOW.
EXT.P10 : PHOTOSTAT TRUE COPY OF VOUCHER DATED 31/12/2016 EVIDENCING THE
PAYMENT OF WAGES.
EXT.P10(a) : PHOTOSTAT TRUE COPY OF VOUCHER DATED 31/12/2016 EVIDENCING
THE PAYMENT OF WAGES.
EXT.P10(b) : PHOTOSTAT TRUE COPY OF VOUCHER DATED 31/12/2016 EVIDENCING
THE PAYMENT OF WAGES.
EXT.P10(c) : PHOTOSTAT TRUE COPY OF VOUCHER DATED 31/12/2016 EVIDENCING
THE PAYMENT OF WAGES.
EXT.P11 : PHOTOSTAT TRUE COPY OF PAGE OF THE MARRIAGE REGISTER AS REGARDS
THE MARRIAGE HELD ON 15/09/2016.
EXT.P11(a) : PHOTOSTAT TRUE COPY OF PAGE OF THE MARRIAGE REGISTER AS
REGARDS THE MARRIAGE HELD ON 18/09/2016.
EXT.P11(b) : PHOTOSTAT TRUE COPY OF PAGE OF THE MARRIAGE REGISTER AS
REGARDS THE MARRIAGE HELD ON 22/09/2016.
EXT.P11(c) : PHOTOSTAT TRUE COPY OF PAGE OF THE MARRIAGE REGISTER AS
REGARDS THE MARRIAGE HELD ON 18/11/2016.
RESPONDENTS' EXHIBITS
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NIL
//TRUE COPY//
P.S.TO JUDGE
dsn/
"CR"
C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ.
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O.P.(Waqf) No.42 of 2017
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DATED THIS THE 20th DAY OF JUNE, 2017
JUDGMENT
ANIL K. NARENDRAN, J.
This original petition filed under Article 227 of the Constitution of India arises out of the common order of the Waqf Tribunal, Ernakulam dated 2.5.2017 in I.A.Nos.11 and 12 of 2017 in W.O.S.No.1 of 2017. The petitioners in this original petition, who are the defendants in that suit, are as the respondents in those interlocutory applications.
2. The plaintiffs, who are respondents 1 to 3 in this original petition, filed W.O.S.No.1 of 2017 before the Tribunal, seeking for a permanent prohibitory injunction restraining the defendants, their men and agents or anybody acting under them from interfering, obstructing or making any sort of hindrance to the plaintiffs and their employees from discharging their administrative and religious activities in the plaint schedule property, namely, the property having an extent of 1 acre and 46 cents comprised in Sy.No.64/9 of Kottopadam-II Village, the Mosque and Madrassa situated therein. The plaintiffs have also sought for an order to appoint a Returning Officer for conducting election to the 1st plaintiff Mahallu Committee, namely, Kodakkadu Nusrathul Islam Mahallu Committee, in a proper, fair and just manner by secret ballot. O.P.(Waqf)No.42 of 2017 -2-
3. Along with the plaint in W.O.S.No.1 of 2017 the plaintiffs filed I.A.No.11 of 2017, an interlocutory application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') seeking for an ad-interim injunction restraining the defendants, their men and agents or anybody acting under them from interfering, obstructing or making any sort of hindrance to the plaintiffs and their employees from discharging their administrative and religious activities in the plaint schedule property, Mosque and Madrassa. They have also filed I.A.No.12 of 2017, another interlocutory application under Section 151 of the Code seeking for an order to appoint a Returning Officer for conducting fair and proper election to the 1st plaintiff Mahallu Committee, by secret ballot.
4. By the common order dated 2.5.2007, which is impugned in this original petition, the Tribunal allowed I.A.Nos.11 and 12 of 2017 in W.O.S.No.1 of 2017. By the said order, the Tribunal granted an order of injunction as prayed for in I.A.No.11 of 2017 and appointed Adv. Varun V. Gopal as the Returning Officer in I.A.No.12 of 2017 for conducting election to the 1st plaintiff Mahallu Committee, within two months from the date of the said order.
5. Feeling aggrieved by the said order of the Tribunal, the petitioners/defendants are before this Court in this original petition. O.P.(Waqf)No.42 of 2017 -3-
6. We heard arguments of learned counsel for the petitioners/ defendants, learned counsel for respondents 1 to 3/plaintiffs and also learned Standing Counsel for the Kerala State Waqf Board representing the 4th respondent.
7. The 1st plaintiff Mahallu Committee is a Society registered under the Societies Registration Act, 1860 with Reg.No.16/83 and its affairs are governed by Ext.P2 registered bye-law. In Para.1 of Ext.P1 plaint in W.O.S.No.1 of 2017 and Para.2 of the affidavit accompanying to Exts.P4 and P5 interlocutory applications, i.e., I.A.No.11 of 2017 and I.A.No.12 of 2017, it is averred that the Mahallu Committee is represented by its President and the 2nd and 3rd plaintiffs are the Vice President and Working Secretary respectively of the 1st plaintiff Committee. Though it is averred in Para.2 of Ext.P1 plaint and Para.3 of the affidavit accompanying to Exts.P4 and P5 interlocutory applications that the administration of the Mosque and Madrassa is being carried out by an Executive Committee (sic: Working Committee) consisting of 7 office bearers, namely, one President, two Vice Presidents, Working Secretary, two Secretaries and a Treasurer, the fact that the 1st defendant is the elected General Secretary and the 2nd defendant is the elected Secretary of the 1st plaintiff Mahallu Committee, who were elected in the General Body held on 15.1.2016 O.P.(Waqf)No.42 of 2017 -4- is suppressed in the plaint as well as in the affidavit accompanying to the interlocutory applications.
8. In the cause title of Ext.P1 plaint, the name and address of the plaintiffs and the defendants are set out as under;
"Name and address of the Plaintiffs:-
1. Kodakkadu Nusrathul Islam Mahallu Committee, Represented by its President, P.K. Impichikoya Thangal, aged 52 years, S/o.Late Pookunjikoya Thangal, Ponnanikunnath House, Kodakkadu P.O., Mannarkadu Taluk, Palakkadu District.
2. K.Abdu Haji, aged 65 years, S/o. Ahammed Kutty, Kuruniyan House, Kodakkadu P.O., Vice President, Kodakkadu Nusrathul Islam Mahallu Committee, Kodakkadu P.O., Mannarkadu Taluk, Palakkadu District.
3. V. Aboo, aged 56 years, S/o. Kunjappu, Vennakkatt House, Kodakkadu P.O., Working Secretary, Kodakkadu Nusrathul Islam Mahallu Committee, Kodakkadu P.O., Mannarkadu Taluk, Palakkadu District.
Vs. Name and address of the Defendants:-
1. Hassainar Musliyar, aged 65 years, S/o. Koya, Parakkal House, Kodakkadu P.O., Palakkadu District.
2. Kasim Saggafi, aged 38 years, S/o. Moidu, Melethil House, Kodakkadu P.O., Mannarkadu, Palakkadu District."
9. The cause title of I.A.Nos.11 and 12 of 2017, i.e., Exts.P4 and P5 interlocutory applications also contain the name and address of O.P.(Waqf)No.42 of 2017 -5- the plaintiffs and the defendants as set out in Ext.P1 plaint. Ext.P1 plaint contains a 'verification clause' at the foot of it, signed by the plaintiffs as the President, Vice President and Working Secretary respectively of the 1st plaintiff Mahallu Committee and also an affidavit sworn to by Sri.P.K. Impichikoya Thangal in his capacity as the President of the said Committee. Exts.P4 and P5 interlocutory applications are also supported by affidavits sworn to by the said Impichikoya Thangal in his capacity as the President of that Committee.
10. It is pertinent to note that, there is no provision in Ext.P2 registered bye-law of the 1st plaintiff Mahallu Committe to elect a Working Secretary to its Working Committee, as is discernible from sub-clause (a) of clause (7) of the said bye-law. As per the said sub- clause, apart from one President, two Vice Presidents and one Treasurer, the Working Committee shall consist of one General Secretary and two Secretaries. Further, sub-clause (a) of clause (7) of the bye-law provides that the term of the elected Working Committee shall be 3 years and the said Committee may be re-elected or a new Committee be elected in the next General Body convened on the expiry of the said term.
11. In Para.3 of Ext.P1 plaint and Paras.4 and 5 of the affidavit O.P.(Waqf)No.42 of 2017 -6- accompanying to Ext.P4 interlocutory application, the plaintiffs alleged that there are two Sunni groups in Muslim community, one faction formed under the leadership of Kanthapuram A.P. Aboobacker Musliyar and the other under the leadership of Late E.K. Aboobacker Musliyar, and that the defendants and their men, who were elected as office bearers on 15.1.2016, showed allegiance to the group of A.P. Aboobacker Musliyar and thereby deviated and desisted to function as the office bearers of the plaint schedule institutions from 14.8.2016 onwards. They are attempting to annex the institutions to their faction. The president being the Kazi, along with the 2nd and 3rd plaintiffs are administering the affairs of the plaint schedule property and the institutions situated therein. It is alleged Para.3 of Ext.P1 plaint and Para.5 of the affidavit accompanying to Ext.P4 interlocutory application that, the Secretary who desisted from functioning as office bearer was directed to handover the documents to the plaintiffs, who was issued with a notice as there was no response. However, the fact that the defendants are the elected General Secretary and Secretary respectively of the 1st plaintiff Mahallu Committee is suppressed in Ext.P1 plaint as well as in the affidavit accompanying to Ext.P4 interlocutory application.
12. In Para.4 of Ext.P1 plaint and Para.6 of the affidavit O.P.(Waqf)No.42 of 2017 -7- accompanying to Ext.P4 interlocutory application, the plaintiffs alleged further that the defendants and certain others supporting A.P.Sunni faction convened a secret meeting with a view of cause disturbance in the Madrassa and the defendants with the assistance of their aids tried to trespass into the Madrassa hall. Then the 1st plaintiff filed W.O.S.No.51 of 2016 before the Tribunal seeking for a permanent prohibitory injunction restraining the defendants therein from entering into the Madrassa and starting classes following the syllabus of Samastha Kerala Sunni Vidyabhyasa Board and obtained an order of interim injunction. In the meanwhile, at the instance of the defendants and their men, the police reported the matter to the Sub Divisional Magistrate, Ottapalam and the said authority by order dated 23.8.2016 ordered to close down the Madrassa. However, the said order was later revoked by Ext.P3 order dated 26.12.2016, by which the parties were directed to maintain status quo in the matter of functioning of the said Madrassa before the said order dated 23.8.2016 and the plaintiffs were put in possession of the Madrassa for proper administration.
13. In Para.5 of Ext.P1 plaint and Para.7 of the affidavit accompanying to Ext.P4 interlocutory application, the plaintiffs alleged that though the defendants and their men have no right to obstruct or O.P.(Waqf)No.42 of 2017 -8- make any hindrance to the administration of the plaint schedule waqf, they proclaimed on 3.1.2007 that they will not allow the plaintiffs and their men in administering the affairs of the waqf unless they heed to the demand of the defendants to part with the possession and exclusive administration of the Jama-ath with a view of annex the institutions to their faction.
14. Based on the aforesaid pleadings, the plaintiffs sought for a permanent prohibitory injunction in Ext.P1 plaint and an ad-interim injunction was sought for in Ext.P4 interlocutory application. Based on the averment that, the next election to the Working Committee of the 1st plaintiff Mahallu Committee is due on 15.1.2017, the plaintiffs sought for an order to appoint a Returning Officer for conducting the election in a fair and proper manner, by secret ballot, and an interim order to that effect was also sought for in Ext.P5 interlocutory application. In the affidavit accompanying to Ext.P5 interlocutory application it is averred that, as per clause (9) of Ext.P2 bye-law, election to the Working Committee of the Jama-ath should be conducted every year during the month of January and it has become a custom and practice in the Jama-ath.
15. On 7.1.2017, the Tribunal passed an ex parte ad-interim injunction in I.A.No.11 of 2017 restraining the defendants, their men O.P.(Waqf)No.42 of 2017 -9- and agents or anybody acting under them from interfering, obstructing or making any sort of hindrance to the plaintiffs and their employees from discharging their administrative and religious activities in the plaint schedule property, Mosque and Madrassa, until further orders. The Tribunal has also passed an ex parte ad-interim order in I.A.No.12 of 2017, appointing Adv. Noufal as the Returning Officer for conducting election to the 1st plaintiff Mahallu Committee.
16. On receipt of notice, the defendants entered appearance and filed Exts.P6 counter affidavit dated 16.1.2017 in Ext.P4 interlocutory application, which was followed by Exts.P7 counter affidavit dated 2.3.2017 in Ext.P5 interlocutory application. After the filing of Exts.P6 counter affidavit, the Tribunal by the order dated 19.1.2017 vacated the interim injunction granted in I.A.No.11 of 2017 and also recalled the order in I.A.No.12 of 2017 appointing a Returning Officer. The said orders passed by the Tribunal, which were laconic with no reason to support the conclusion arrived at, were under challenge before this Court in O.P.(Waqf)No.6 of 2017. This Court by the judgment dated 20.2.2017 set aside the said orders and directed the Tribunal to reconsider Exts.P4 and P5 interlocutory applications with notice to all the parties.
17. Before the Tribunal, the defendants filed Exts.P6 and P7 O.P.(Waqf)No.42 of 2017 -10- counter affidavits opposing the reliefs sought for in Exts.P4 and P5 interlocutory applications. In Para.4 of Ext.P6 counter affidavit, the defendants have raised a specific contention that the plaintiffs have approached the Tribunal with unclean hands, suppressing material facts. The fact that the 1st defendant is the elected General Secretary and the 2nd defendant is the elected Secretary of the 1st plaintiff Mahallu Committee is suppressed in the plaint as well as in the interlocutory applications. The defendants were elected in the General Body of the 1st plaintiff Mahallu Committee held on 15.1.2016 and as per the provisions under Ext.P2 bye-law the term of the present committee will expire only on 15.1.2019. The defendants have been discharging their duties as per the provisions of the said bye-law and also in tune with the mandate of the Waqf Act, 1995. It was also contended that, as per the provisions of Ext.P2 bye-law, the plaintiffs have no locus standi to represent the 1st plaintiff Mahallu Committee.
18. In Paras.5 to 9 of Ext.P6 counter affidavit, the defendants raised several contentions touching the merits of the case. It was also pointed out that the interim injunction granted by the Tribunal in the interlocutory application filed in W.O.S.No.51 of 2016, a suit filed by the supporters of the plaintiffs has already been vacated on 14.1.2017. In Paras.10 and 11 of Ext.P6 counter affidavit, the O.P.(Waqf)No.42 of 2017 -11- defendants contended that, they never obstructed anybody from discharging the official duties or getting any service from the 1st plaintiff Mahallu Committee or the waqf. There is no cause of action for the suit, as the defendants are in office of the Jama-ath as its General Secretary and Secretary respectively and the administration of the waqf is the duty of the Working Committee. The defendants have legal duties to discharge, as per the provisions of the Waqf Act, 1995 and the plaintiffs cannot put an embargo on their right to discharge the duties as elected office bearers of the Jama-ath. Therefore, the defendants contended that, the plaintiffs have not made out a prima facie case against them for grant of an order of interim injunction as prayed for and the balance of convenience is also in their favour.
19. In Exts.P7 counter affidavit filed in Ext.P5 interlocutory application for appointment of Returning Officer to conduct election, the defendants contended that, as per the provisions of Ext.P2 bye- law, the term of the elected committee is 3 years and as such, the term of the present committee which was elected on 15.1.2016 will expire only on 15.1.2019.
20. Pursuant to the direction contained in the judgment of this Court dated 20.2.2017 in O.P.(Waqf)No.6 of 2017, the Tribunal passed Ext.P8 order dated 2.5.2017 in I.A.Nos.11 and 12 of 2017. As O.P.(Waqf)No.42 of 2017 -12- discernible from Para.9 of Ext.P8 order, the defendants contended before the Tribunal that, as per sub-clause (c) of clause (8) of Ext.P2 bye-law the General Secretary alone can represent the Jama-ath in legal proceedings. Though the 3rd plaintiff is shown as the Working Secretary in the cause title, as per sub-clause (a) of clause (7) of the bye-law there is no such post in the Working Committee. The fact that the 1st defendant is the General Secretary and the 2nd defendant is the Secretary of the 1st plaintiff Mahallu Committee has not been mentioned anywhere in Ext.P1 plaint or in Exts.P4 and P5 interlocutory applications. Further, no documents have been produced by the plaintiffs to show that the defendants are not the present office bearers of the 1st plaintiff Mahallu Committee.
21. Sub-clause (c) of clause (8) of Ext.P2 bye-law provides that, if the Secretary of the Working Committee fails to discharge his duties in relation to the affairs of the Society, the President shall discharge such duties by himself. The said sub-clause provides further that, if found necessary, the President shall entrust his responsibilities to the Vice President, either fully or partly. Though, in Ext.P1 plaint as well as the affidavit accompanying Ext.P4 interlocutory application, the plaintiffs alleged that the defendants and their men, who were elected as office bearers on 15.1.2016, showed allegiance to the group of A.P. O.P.(Waqf)No.42 of 2017 -13- Aboobacker Musliyar and thereby deviated and desisted to function as the office bearers of the plaint schedule institutions from 14.8.2016 onwards, the fact that they are the elected General Secretary and elected Secretary respectively of the 1st plaintiff Mahallu Committee was suppressed in the plaint as well as in the affidavit accompanying Ext.P4 interlocutory application. Neither Ext.P1 plaint nor the affidavit accompanying Ext.P4 interlocutory application contains any specific allegations against the defendants in their official capacity as the elected General Secretary and elected Secretary respectively of the 1st plaintiff Mahallu Committee.
22. On the other hand, the specific stand taken by the defendants in Ext.P6 counter affidavit filed in Exts.P4 interlocutory application for injunction was that, they were elected as the General Secretary and Secretary respectively, in the General Body of the 1st plaintiff Mahallu Committee held on 15.1.2016, and they have been discharging their duties as per the provisions of Ext.P2 bye-law and also in tune with the mandate of the Waqf Act, 1995. They have also pointed out that, the interim injunction granted by the Tribunal in the interlocutory application filed in W.O.S.No.51 of 2016, the previous suit filed by the 1st plaintiff Committee against the defendants, has already been vacated on 14.1.2017. The defendants have also O.P.(Waqf)No.42 of 2017 -14- contended that, they never obstructed anybody from discharging the official duties or getting any service from the 1st plaintiff Mahallu Committee or the waqf and that, the defendants have legal duties to discharge, as per the provisions of the Waqf Act, 1995 and the plaintiffs cannot put an embargo on their right to discharge the duties as elected office bearers of the Jama-ath.
23. Before the Tribunal, relying on Ext.P3 order of the Sub Divisional Magistrate, Ottapalam dated 26.12.2016 the plaintiffs contended that, by directing the parties to maintain status quo existed prior to the order dated 23.8.2016, they were put in possession of the Madrassa for its proper administration. As discernible from Ext.P3 order of the Sub Divisional Magistrate, issued under sub-section (4) of Section 145 of the Criminal Procedure Code, 1973 there were disputes between two factions, namely, A.P. Sunni Group and E.K. Sunni Group over the functioning of Manarul Islam Madrassa, Kodakkad, Nattukal, in connection with the appointment of two new teachers. Since the issue had grown up to challenge the law and order situation, based on a report from the Sub Inspector of Police, Nattukal, the Sub Divisional Magistrate had issued an order dated 23.8.2016, invoking his powers under sub-section (1) of Section 145 of Cr.P.C., to stop all functions of the said Madrassa until further orders and the parties concerned were O.P.(Waqf)No.42 of 2017 -15- directed to appear on 25.8.2016.
24. As discernible from Ext.P3 order, from the statements filed by both factions, the Sub Divisional Magistrate found that the Mahal consists of approximately 1000 members including 200 students belonging to 450 families and that, the syllabus of Samstha Kerala Islam Matha Vidhyabhyasa Board is being followed in the Madrassa since its inception in 1981 and at present majority of the students belong to E.K. Sunni Group. Till 2016 no serious issues were reported regarding the functioning of the Madrassa. In Ext.P3 order it was found that, both sides played their role for the improvement and development of the Madrasa till then and that, the possession and ownership of the Madrasa cannot be conferred on any particular faction, because several Mahallu members belonging to both factions contributed for bringing up it to its present condition and the Governing Body of the Madrassa consists of members from both factions.
25. In Ext.P3 order, the Sub Divisional Magistrate noticed that, Section 85 of the Waqf Act, 1995 bars suit or other legal proceedings in any civil court, revenue court, etc. in respect of any dispute, question, etc. relating to the waqf, waqf property or other matter which is required by or under the said Act to be determined by a O.P.(Waqf)No.42 of 2017 -16- Tribunal. Therefore, it is open to both parties to establish their rights over the property before the competent authority, and adjudication of civil rights over the property falls outside the purview of the Executive Magistrate. In order to maintain law and order and to ensure that the rights of the children for free and fair education are not sidelined as a result of the issues between both factions, the Sub Divisional Magistrate revoked the earlier order dated 23.8.2016 and directed both parties to maintain status quo in the matter of functioning of the said Madrassa as it existed prior to the said order dated 23.8.2016, and the parties are directed to abide by the directions contained in Ext.P3 order.
26. As per the directions contained in Ext.P3 order, the Madrassa can be reopened and teaching continued in the same manner as was done till 23.8.2016. The Madrassa is to function under Nusrathul Islam Mahallu Committee as was done until its closure as per the order dated 23.8.2016 issued under sub-section (1) of Section 145 of Cr.P.C. The Circle Inspector of Police, Mannarkkad will monitor the situation closely and has to ensure that nobody creates any hindrance for the smooth functioning of the Madrassa and has to report immediately, any further development in the law and order front. It is made clear in Ext.P3 that, the said order will prevail until O.P.(Waqf)No.42 of 2017 -17- the Waqf Tribunal passes orders regarding the ownership of the property, rights and shares of the factions, functioning of the Madrassa and validity of the committee. By the said order, both factions are directed to stay away from taking law into their hands, in order to ensure smooth functioning of the institution, thereby creating peaceful atmosphere for the education of the children.
27. In Ext.P8 order, after referring to Ext.P3 order of the Sub Divisional Magistrate, the Tribunal observed as follows; "Admittedly the plaintiffs are administering the affairs of the waqf from 14.8.2014. So status quo order is also in their favour." The said finding of the Tribunal is patently illegal, inasmuch as, one of the findings in Ext.P3 order of the Sub Divisional Magistrate is that the possession and ownership of the Madrasa cannot be conferred on any particular faction, because several Mahallu members belonging to both factions contributed for bringing up it to its present condition and the Governing Body of the Madrassa consists of members from both factions.
28. Admittedly, the defendants are the elected General Secretary and Secretary respectively of the 1st plaintiff Mahallu Committee, who were elected in the General Body held on 15.1.2016. The plaintiffs could not produce any documents to show that the O.P.(Waqf)No.42 of 2017 -18- defendants are presently not the office bearers of the 1st plaintiff Mahallu Committee. Though the Tribunal found in Ext.P8 order that the plaintiffs have made out a prima facie case and the balance of convenience is also in their favour to grant the order of injunction, the said finding is not supported by any reason whatsoever.
29. It is trite law that an order of temporary injunction under Order XXXIX Rule 1 or Rule 2 of the Code of Civil Procedure, 1908 which is wholly equitable in nature, cannot be granted as a matter of course or on mere asking. Apart from three necessary ingredients, i.e., prima facie case, balance of convenience and irreparable loss, the courts are required to see the conduct of the parties. An applicant seeking an order of temporary injunction under Order XXXIX Rule 1 or Rule 2 of the Code should approach the Court with clean hands and suppression of material facts is evidence of his hands being unclean.
30. In Naraindas v. Government M. P. [1975 (3) SCC 31] a Constitution Bench of the Apex Court held that, if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding and thus amounts to contempt of court.
31. In Afzal v. State of Haryana [(1996) 7 SCC 397] the O.P.(Waqf)No.42 of 2017 -19- Apex Court held that a false or misleading or wrong statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order would prejudice or interfere with the due course of judicial proceedings.
32. In Mohan Singh v. Late Amar Singh (through LR's) [(1998) 6 SCC 686] the Apex Court held that tampering with the record of judicial proceedings and filing of false affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity.
33. In the instant case, in Ext.P6 counter affidavit the defendants have raised a specific contention that the plaintiffs have approached the Tribunal with unclean hands, suppressing material facts, inasmuch as, the very fact that the defendants are the elected General Secretary and Secretary respectively of the 1st plaintiff Mahallu Committee is suppressed in Ext.P1 plaint as well as in the affidavit accompanying to Exts.P4 and P5 interlocutory applications. As we have already noticed, as per the cause tittle of Ext.P1 plaint and Exts.P4 and P5 interlocutory application, the defendants are sued in their individual O.P.(Waqf)No.42 of 2017 -20- names, without disclosing the fact that they are the elected office bearers of the 1st plaintiff Mahallu Committee, which is nothing but a calculated attempt made by the plaintiffs to suppress material facts from the notice of the Tribunal. However, the Tribunal has not even adverted to the said aspect of the matter while granting the order of interim injunction as sought for in I.A.No.11 of 2017. Since the plaintiffs had approached the Tribunal with unclean hands, suppressing material facts from the notice of the Tribunal, they are not entitled for an order of interim injunction as sought for in the said interlocutory application. For the above reasons, the order of interim injunction granted by the Tribunal in I.A.No.11 of 2017 cannot be sustained in law and the same is hereby set aside.
34. In I.A.No.12 of 2017, the plaintiffs sought for an order to appoint a Returning Officer for conducting fair and proper election to the 1st plaintiff Mahallu Committee by secret ballot. The said interlocutory application was filed based on an averment that the next election to the Working Committee of the 1st plaintiff Mahallu Committee is due on 15.1.2017 and that, as per clause (9) of Ext.P2 bye-law, election to the Working Committee of the Jama-ath should be conducted every year during the month of January and it has become O.P.(Waqf)No.42 of 2017 -21- a custom and practice in the Jama-ath. In Ext.P7 counter affidavit filed to Ext.P5 interlocutory application, the specific stand taken by the defendants was that they were elected in the General Body of the 1st plaintiff Mahallu Committee held on 15.1.2016 and as per the provisions under Ext.P2 bye-law the term of the present Committee will expire only on 15.1.2019.
35. As discernible from sub-clause (a) of clause (7) of Ext.P2 bye-law, the term of the elected Working Committee shall be 3 years and the said committee may be re-elected or a new committee be elected in the next General Body convened on the expiry of the said term. Sub-clause (a) of clause (9) of the said bye-law provides that, every General Body convened on the expiry of the term of the Working Committee for electing a new Working Committee, shall be convened in the month of January of that year. A combined reading of the aforesaid provisions would make it explicitly clear that, the term of the elected Working Committee is 3 years and that, every General Body convened on the expiry of the said term for electing a new Working Committee shall be convened in the month of January of that year.
36. In Para.10 of Ext.P8 order, the Tribunal rightly found that sub-clause (a) of clause (9) of Ext.P2 bye-law does not mandate election to the Jama-ath Committee every year and the contention to O.P.(Waqf)No.42 of 2017 -22- that effect made by the plaintiffs is not supported by any provisions of the said bye-law. The Tribunal has also noticed that as per the provisions under the Waqf Act, 1995 the Jama-ath Committee shall be allowed to function till it is superseded by the Waqf Board as provided under the said Act.
37. When Ext.P2 bye-law of the 1st plaintiff Mahallu Committee makes specific provision regarding the term of the elected Working Committee as 3 years, the mere fact that during the period from 2010 to 2016 office bearers of the Working Committee were elected every year, as discernible from the list of officer bearers forwarded to the District Registrar, would not entitle the plaintiffs to contend that election to the Working Committee in the month of January every year has become the custom and practice in the 1st plaintiff Mahallu Committee. In view of the provisions under sub-section (1) of Section 67 of the Waqf Act, 1995 the elected Working Committee shall continue to function until it is superseded by the Waqf Board or until the expiry of its term as may be specified by the waqf, whichever is earlier. Since the term of the present committee, which was elected on 15.1.2016, will expire only on 15.1.2019, the Tribunal went wrong in appointing an Advocate Commissioner as the Returning Officer to conduct election to the Working Committee of the 1st plaintiff Mahallu O.P.(Waqf)No.42 of 2017 -23- Committee. In that view of the matter, the order of the Tribunal in I.A.No.12 of 2017 appointing an Advocate Commissioner as the Returning Officer to conduct election to the Working Committee of the 1st plaintiff Mahallu Committee cannot be sustained in law and the same is hereby set aside.
38. In Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757] the Apex Court held that filing of false affidavits or making false statement on oath in courts aims at striking a blow at the rule of law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The relevant portion of paragraph 38 of the said verdict reads as follows :
"38. Section 2(c) of the Contempt of Courts Act 1971 (for short the Act) defines criminal contempt as the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to candalise or lower or tend to lower the authority of any Court; (2) prejudice or interfere or interfere or tend to interfere with the due course of judicial proceedings; or (3) interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any O.P.(Waqf)No.42 of 2017 -24- other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceeding amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceeding not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of false statements and fabricating false evident in a court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice. In O.P.(Waqf)No.42 of 2017 -25- Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421 :
1994 AIR SCW 4994] the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed: (at p.4995, of AIR) "the stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitaility to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceeding; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice."
39. In Muthu Karuppan V. Parithi Ilamvazhuthi [(2011) 5 SCC 496] the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In Sciemed Overseas Inc. Vs. BOC India Ltd. [(2016) 3 SCC 70], the Apex Court observed that though the observation in Muthu Karuppan's O.P.(Waqf)No.42 of 2017 -26- case (supra) was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve purity of judicial proceedings.
40. In the instant case, as we have already noticed, the fact that the 1st defendant is the elected General Secretary and the 2nd defendant is the elected Secretary of the 1st plaintiff Mahallu Committee, who were elected in the General Body held on 15.1.2016 is suppressed in Ext.P1 plaint as well as in the affidavit accompanying to Exts.P4 and P5 interlocutory applications. Though there is no provision in Ext.P2 bye-law to elect a Working Secretary to the Working Committee of the 1st plaintiff Mahallu Committe, in Para.1 of Ext.P1 plaint and Para.2 of the affidavit accompanying to Exts.P4 and P5 interlocutory applications, it is averred that the Mahallu Committee is represented by its President and the 2nd and 3rd plaintiffs are the Vice President and Working Secretary respectively of the 1st plaintiff Committee. Ext.P1 plaint also contains a 'verification clause' at the foot of it, signed by the plaintiffs as the President, Vice President and Working Secretary respectively of the said Committee. Moreover, as per the cause tittle of Ext.P1 plaint and Exts.P4 and P5 interlocutory applications, the defendants are sued in their individual names, without disclosing the fact that they are the elected office bearers of O.P.(Waqf)No.42 of 2017 -27- the 1st plaintiff Mahallu Committee, which is nothing but a calculated attempt made by the plaintiffs to suppress material facts from the notice of the Tribunal. Therefore, considering the facts and circumstances of the case, we deem it appropriate to impose a cost of 15,000/- on the President of the 1st respondent Mahallu Committee and also on the 2nd and 3rd respondents, namely, the Vice President and Working Secretary respectively of the said Committee, payable to the petitioners, namely, the defendants before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. They shall deposit the said amount before the Tribunal, within the time limit stipulated as above, from their own pockets, and on such deposit being made the Tribunal shall permit the petitioners/defendants to withdraw the said amount.
In the result, this original petition is allowed as above by setting aside Ext.P8 order passed by the Tribunal in I.A.Nos.11 and 12 of 2017 and the said interlocutory applications stand dismissed.
Sd/-
C.T. RAVIKUMAR, JUDGE Sd/-
ANIL K. NARENDRAN, JUDGE dsn //True copy// P.S.to Judge