Abrar Juma Mazjid Mylloor Kara v. Myloor Juma-Ath Mosque (OP(WT) No. 57/2017)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939 OP (WT).No. 57 of 2017 ------------------------------ PETITIONER(S) ---------------- ABRAR JUMA MAZJID MYLOOR KARA, VARAPETT VILLAGE, KOTHAMANGALAM TALUK, REPRESENTED BY ITS SECRETARY, M.M.SHAKEER, AGED 41 YEARS, S/O.MYTHEENPILLA, MACKANATTU HOUSE, MYLOOR KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV.SRI.T.M.ABDUL LATIFF RESPONDENT(S): -------------------- MYLOOR JUMA-ATH MOSQUE MYLOOR KARA, VARAPETTY VILLAGE, KOTHAMANGALAM TALUK, REPRESENTED BY ITS MUTHAWALLI A.M.ABDULKHADER, AGED 66 YEARS, S/O.MOHAMMED BECK, AMALIPURATHU HOUSE, MYLOOR KARA, VARAKETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.K.M.FIROZ BY ADV. SMT.M.SHAJNA THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP (WAKF).No. 57 of 2017 (R) ## ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NPO/490/14 FILED THE RESPONDENT BEFORE THE MUNSIFF COURT, MUVATTUPUZHA. EXHIBIT P2 TRUE COPY OF THE SUMMON DATED 05-09-2014 ISSUED TO THE PETITIONER BY THE MUNSIFF COURT, MUVATTUPUZHA IN OS.NO.490 OF 2014. EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, MVUATTUPUZHA IN I.A.NO.2909 OF 2014 IN O.S.NO.490 OF 2014. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 05-12-2016 PASSED BY THIS HONOURABLE COURT IN WP(C)NO.22994 OF 2016. EXHIBIT P5 TRUE COPY OF THE PETITION DATED 19-10-2016 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, MUVATTUPUZHA IN O.S.NO.490 OF 2014. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 06-02-2017 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, MUVATTUPUZHA IN O.S.NO.490 OF 2014. ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ========================== O.P.(WT). No.57 OF 2017** ## **==========================** Dated this the 19[th] day of February, 2018 ## **JUDGMENT** _Ravikumar, J._ The petitioner herein is the defendant in O.S.No.490 of 2014 pending on the files of the Munsiff Court, Muvattupuzha. The said suit has been filed for recovery of possession of the madrassa building from the petitioner herein and also for injunction. The petitioner herein took up a contention in the written statement filed therein, to the effect that the Munsiff Court lacks jurisdiction on the subject matter involved therein and the matters in issue fall within the jurisdiction of the Wakf Tribunal. In that view of the matter, they filed Ext.P5 petition before the Munsiff Court praying for consideration of the preliminary issue regarding the maintainability of the suit. It is the delay in the matter of its consideration that constrained the petitioner to approach this Court by filing the captioned original petition mainly with the following prayer:- **O.P.(WT).57/2017** 2 "To call for the records relating to Exts.P-1 to P-6 and to issue appropriate order or direction, directing the Munsiff Court, Muvattupuzha to consider and pass orders in the application filed by the petitioner, produced as Ext.P-5 by determining the maintainability issue; at the earliest and at any rate within one month." 2. We have heard the learned counsel for the petitioner and also the learned counsel for the respondent. 3. The learned counsel for the respondent/plaintiff in O.S.No.490 of 2014 contended that in the light of the provisions under sections 6 and 7 of the Wakf Act, it cannot be said that as regards the matter in issue, there is ouster of jurisdiction of the civil court. Essentially, the contention of the learned counsel is to the effect that the bar of jurisdiction contained in section 85 of the Wakf Act pertains only to the matters covered by sections 6 and 7 of the Wakf Act and therefore, in respect of other matters, there is no exclusion of jurisdiction of the civil court. To fortify the said contention, the learned counsel relied on the decision of the Apex Court in **Ramesh Gobindram v. Sugra Humayun Mirza Wakf [2010 (3) KLT 862 (SC)]** . The learned counsel for the petitioner/defendant therein **O.P.(WT).57/2017** 3 contended that a scanning of the said decision itself would reveal the hollowness of the aforesaid contention. In such circumstances, it is evident from the rival contentions that the question is whether there is exclusion of the jurisdiction of the civil court or not. 4. We will refer to the decision relied on by the respondent herein. We are of the view that a scrutiny of the paragraphs 16 and 18 of the decision in **Ramesh Gobindram** 's case itself would answer the tenability of the contentions. After referring to sections 6, 7 and 85 of the Wakf Act, the Apex Court held in **Ramesh Gobindram'** s case thus:- "A plain reading of the above would show that the Civil Court's jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words “which is required by or under this Act to be determined by Tribunal” holds the key to the question whether or not all disputes concerning the wakf or wakf property stand . excluded from the jurisdiction of the Civil Court Whenever a question arises whether “any dispute, question or other matter” relating to “any wakf or wakf property or other matter” falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be **O.P.(WT).57/2017** 4 excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in S.85 is in that sense much wider than that contained in S.6(5) read with S.7 of the Wakf Act. While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Ss.6(1) and 7(1), the bar of jurisdiction contained in S.85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Ss.6 and 7 but also other matters required to be determined by a Tribunal under " the Act. In paragraph 18, the Apex Court Court went on to hold thus:- "Suffice it to say that there are a host of questions and matters that have to be determined by the Tribunal under the Act, in relation to the wakf or wakf property or other matters. S.85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although S.85 is wider than what is contained in Ss.6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under S.85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to " any such question cannot be said to be barred. (emphsis added) 5. Thus, it is evident that in the light of the very decision relied **O.P.(WT).57/2017** 5 on by the respondent, the respondent cannot be heard to contend that the exclusion under section 85 of the Wakf Act is limited only in relation to matters specifically fall within the purview of sections 6 and 7. In short, in the light of the dictum laid down in **Ramesh Gobindram'** s case, the question to be decided is whether the civil court is having jurisdiction or not, in respect of matters where the matter in dispute is required under the Act to be determined by the Tribunal. If the answer is in the affirmative, necessarily, there will be an exclusion of the jurisdiction of the civil court. In such circumstances, in the light of the admitted fact hat the petitioner herein who is the defendant in O.S.No.490 of 2014 raised the question of jurisdiction in the written statement and thereafter filed Ext.P5 for considering the maintainability of the suit, in the light of the dictum laid down in **Ramesh Gobindram'** s case, we are of the considered view that the said question is bound to be considered by the court below. We may hasten to add that we shall not be understood to have held that there is exclusion of the jurisdiction of the civil court in the case on hand. It is essentially a matter for the court below to decide in **O.P.(WT).57/2017** 6 the light of the facts involved in this case and with reference to the decision in **Ramesh Gobindram'** s case. In such circumstances, without making any observation as to the merits of the contentions, there will be a direction to the Munsiff Court, Muvattupuzha to consider Ext.P5. The parties shall also be afforded with an opportunity to raise contentions in the aforesaid matter viz., regarding the question whether the civil court's jurisdiction is excluded in respect of matters included in O.S.No.490/2014. This shall be done within a period of one month from the date of receipt of a copy of this judgment. This original petition is disposed of, as above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH (JUDGE)** **spc/** //True copy// Sd/- P.A.To Judge **O.P.(WT).57/2017** 7 **C.T. RAVIKUMAR, J.** **O.P.(WT).57/2017** 8 **JUDGMENT September, 2010**