Kerala High Court
V.A.Kunhi Pocker Haji vs Nadapuram Juma Masjid Paripalana ... on 22 February, 2022
Author: S.V.Bhatti
Bench: S.V.Bhatti
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 22ND DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943
CRP(WAKF) NO. 33 OF 2021
WOS 23/2019 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER/S:
1 V.A.KUNHI POCKER HAJI
AGED 67 YEARS
S/O.KUNHALI HAJI, RESIDING AT VELLACHALIL HOUSE,
NADAPURAM, KUMMANKOD AMSOM, KAKKAMVELLY DESOM,
KOZHIKODE DISTRICT
2 POCKER AKKARAL,AGED 64 YEARS
S/O.AMMED, RESIDING AT 'THAIKANDI', P.O.PURAMERI,
PURAMERI AMSOM, PURAMERI DESOM, KOZHIKODE DISTRICT
3 EROTH MOIDU HAJI,AGED 68 YEARS
RESIDING AT 'EROTH', P.O.NADAPURAM, KUMMANKODE
AMSOM AND DESOM, KOZHIKODE DISTRICT.
4 T.POCKU HAJI,AGED 53 YEARS
S/O.ANDRU KARUVARIYIL, RESIDING AT 'THAYAMBATH',
P.O.NADAPURAM, KUMMANKOD AMSOM KAKKAMVELLY DESOM,
KOZHIKODE DISTRICT.
5 K.ASHRAF,AGED 47 YEARS
S/O.POCKER HAJI, RESIDING AT 'KOYILOTH',
P.O.NADAPURAM, KUMMANKOD AMSOM KAKKAMVELLY DESOM,
KOZHIKODE DISTRICT.
BY ADVS.
K.M.FIROZ
C.IJLAL
UMMUL FIDA
RESPONDENT/S:
1 NADAPURAM JUMA MASJID PARIPALANA COMMITTEE
REP.BY ITS SECRETARY C.V.ZUBAIR, S/O.AMMEDKUTTY,
AGED 46 YEARS, RESIDING AT CHEERACHAMVEETTIL,
KUMMANKOD AMSOM, KAKKAMVELLY DESOM, KOZHIKODE
DISTRICT 673 504
CRP(WAKF) NO. 33 OF 2021
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2 C.V.ZUBAIR,S/O.AMMEDKUTTY, AGED 46 YEARS,
NADAPURAM JUMA MASJID PARIPALANA COMMITTEE,
RESIDING AT CHEERACHAMVEETTIL, KUMMANKOD AMSOM,
KAKKAMVELLY DESOM, KOZHIKODE DISTRICT 673 504
3 K.M.KUNHABDULLA,AGED 67 YEARS
S/O.ANDRU, PRESIDENT NADAPURAM JUMA MASJID
PARIPALANA COMMITTEE, RESIDING AT KIZHAKKE
MADATHIL, NADAPURAM P.O., IYYANGODE AMSOM,
NADAPURAM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT 673 504
4 K.V.AMMAD,AGED 56 YEARS
S/O.KUNHABDULLA HAJI, RESIDING AT KIZHAKKEVEETTILE
HOUSE, IYYAMKODE AMSOM DESOM, KOZHIKODE DISTRICT
673 504
5 K.V.MOIDU,AGED 52 YEARS
S/O.KUNHABDULLA HAJI, RESIDING AT KIZHAKKEVEETTILE
HOUSE, IYYAMKODE AMSOM DESOM, KOZHIKODE DISTRICT
673 504
6 K.V.KUNHALI,AGED 50 YEARS
S/O.KUNHABDULLA HAJI, RESIDING AT KIZHAKKEVEETTILE
HOUSE, IYYAMKODE AMSOM DESOM, KOZHIKODE DISTRICT
673 504
7 K.V.ABDULRAHIMAN,AGED 47 YEARS
S/O.KUNHABDULLA HAJI, RESIDING AT KIZHAKKEVEETTILE
HOUSE, IYYAMKODE AMSOM DESOM, KOZHIKODE DISTRICT
673 504
8 KERALA STATE WAQF BOARD
KALOOR, ERNAKULAM DISTRICT, KERALA 682 017
9 CHIEF EXECUTIVE OFFICER
KERALA STATE WAQF BOARD, KALOOR, COCHIN, ERNAKULAM
DISTRICT, KERALA 682 017
BY ADV SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD
OTHER PRESENT:
SC JAMSHEED HAFIZ
THIS CRP (WAKF ACT) HAVING COME UP FOR ADMISSION ON
22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRP(WAKF) NO. 33 OF 2021
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S.V.BHATTI
& BASANT BALAJI, JJ.
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C.R.P.(Wakf) No.33 of 2021
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ORDER
(Dated this the 22nd day of February 2022) Basant Balaji J., The petitioners are the plaintiffs in W.O.S. No.23 of 2019 on the files of the Wakf Tribunal, Kozhikode and the respondents are the defendants therein.
2. The plaintiffs filed the suit for an injunction restraining the defendants from committing any acts of obliteration or conversion, slitting of the burial ground, craving trenches, putting up walls, removal of Meezan stones and from reducing the area of burial ground and also for mandatory injunction directing defendants and their men to remove the laterite wall separating to the extent. The defendants hurriedly carried out and restored the CRP(WAKF) NO. 33 OF 2021 -4- graveyard to its original position.
3. The Wakf Tribunal issued notice to the defendants and defendant Nos.1 to 3 jointly filed written statement denying the averments in the plaint. Defendant Nos.4 to 7 also filed written statement denying the averments in the plaint and contending that they have not committed any act of obliterating the burial tombs.
4. Three witnesses were examined on the side plaintiffs and Exhibits were marked. During the trial of the case, defendant Nos.1 to 3 filed a petition questioning the maintainability of the suit contending that a suit for injunction is not maintainable under Section 83 of the Wakf Act before the Wakf Tribunal and it has to be filed before the Civil Court.
5. The Wakf Tribunal, as per order dated 12.8.2021, returned the plaint for non-compliance of Order VII Rule CRP(WAKF) NO. 33 OF 2021 -5- 10A CPC.
6. The contention of the petitioners is that the return of the plaint is without understanding the scope of Section 83 of the Act and without any reason. He relied on a decision of the Apex Court in Rashid Wali Beg v. Farid Pindari [2021(6) KLT 482 (SC)] to contend that the Wakf Tribunal alone has jurisdiction to determine the issue raised in W.O.S. No.23 of 2019. He prayed that the order passed by the Wakf Tribunal is bad in law and the same has to be set aside and direction to be issued to the Tribunal to accept the plaint.
7. On going through the impugned order, it is seen that the Tribunal has only returned the plaint for non- compliance of Order VII Rule 10A CPC. In view of the settled position of law regarding the maintainability of petition under Section 83 of the Wakf Act before the Wakf Tribunal, we are of the opinion that the petitioners can re- CRP(WAKF) NO. 33 OF 2021 -6- present the plaint before the Wakf Tribunal after curing the defects, if any, within a period of three weeks from today.
C.R.P. is allowed as above.
sd S.V.BHATTI, JUDGE sd BASANT BALAJI, JUDGE dl/