C.M.T MUHAMMED BAVA v. Nafeesu and Muhammed Kasim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **OP(C).No. 2435 of 2017 (O)** **---------------------------** **AGAINST THE ORDER IN I.A.No.1130/2017 IN OS.166/2017 of MUNSIFF COURT, TIRUR DATED 25.7.2017** ## **PETITIONERS/DEFENDANTS IN THE O.S.:** **--------------------------------------** ## **1. C.M.T MUHAMMED BAVA** **AGED 61 YEARS, PRESIDENT, VETTAM PADIYAM KUTTILA PADAM JUMA MASJID & RAFEEQUAL ISLAM MADRASSA COMMITTEE** **VETTOM AMSOM & POST, PADIYAM DESOM-676102** ## **2. P.V.MOOSAKUTTY @ BAPPU** **S/O.ABDULLAKUTTY, VETTAM PADIYAM KUTTILA PADAM JUMA MASJID & RAFEEQUAL ISLAM MADRASSA COMMITTEE VETTOM AMSOM & POST, PADIYAM DESOM-676102.** **BY ADVS.SRI.T.SETHUMADHAVAN (SR.) SMT.N.DEEPA** ## **RESPONDENTS/PLAINTIFFS IN THE O.S.:** **----------------------------------** ## **1. NAFEESU,** - **AGED 65 YEARS** **W/O.CHARACHAM VEETTIL PAZHAYAKATHU ABU @ ABOOBACKER KAPPATTAKATH KALATHIL HOUSE, VETTOM AMSOM PADIYAM DESOM, POST VETTOM-676102.** **2. MUHAMMED KASIM, AGED 42 YEARS** **S/O.CHARACHAM VEETTIL PAZHAYAKATHU ABU @ ABOOBACKER KAPATTAKATH KALATHIL HOUSE, VETTOM AMSOM PADIYAM DESOM, POST VETTOM-676102.** **R1-R2 BY ADV. SRI.T.KRISHNANUNNI (SR.)** **R1-R2 BY ADV. SRI.K.K.MOHAMED RAVUF** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 2435 of 2017 (O)** **---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **-----------------------** **EXT.P1 : A TRUE COPY OF THE PLAINT IN O.S.NO.166/2017 ON THE FILE OF THE MUNSIFF COURT, TIRUR DT. 22-05-2017.** **EXT.P2 : A TRUE COPY OF THE PETITION, I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE MUNSIFF COURT, TIRUR DT.23-05-17.** **EXT.P3 : A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN IN I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE MUNSIFF COURT, TIRUR DT.06-06-2017.** **EXT.P4 : A TRUE COPY OF THE ORDER DT.25-07-2017 IN I.A.NO.1130/2017 IN O.S.NO.166/2017 ON THE FILE OF THE HON'BLE MUNSIFF COURT, TIRUR.** ## **RESPONDENTS' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **ami/** ## **ANIL K.NARENDRAN, J.** ## **----------------------------------------------O.P.(C)No.2435 of 2017 -----------------------------------------------** Dated this the 9[th] day of October, 2017 ## **J U D G M E N T** The petitioners, who are the defendants in O.S.No.166/2017 on the file of the Munsiff's Court, Tirur, are before this Court in this original petition filed under Article 227 of the Constitution, seeking an order directing the said court to consider the maintainability of O.S.No.166/2017 as a preliminary point and pass orders thereon without any further delay. The petitioner has also sought for an order directing the said court to keep in abeyance Ext.P4 order dated 25.7.2017 in I.A.No.1130/2017 in O.S.No.166/2017, till orders are passed in the above suit regarding its maintainability. 2. On 9.8.2017, when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondents/plaintiffs by speed post. This Court has also granted an interim stay of all further proceedings in O.S.No.166/2017 on the file of Munsiff's Court, Tirur, including ## O.P.(C)No.2435 of 2017 :-2-: further proceedings as per Ext.P4 order dated 25.7.2017 in I.A.No.1130/2017, for a period of 2 months. 3. Heard the learned Senior Counsel for the petitioners/ defendants and also the learned Senior Counsel for the respondents/plaintiffs. 4. The learned Senior Counsel for the the petitioners/ defendants would contend that O.S.No.166/2017 filed before the Munsiff's Court is hit by Section 85 of the Waqf Act, 1995 and as such the court below ought to have decided the question of maintainability as a preliminary issue. The learned counsel would also contend that the suit is bad for non-joinder of the necessary party, since the Kerala State Waqf Board is not arrayed as a defendant in the suit. Though the question of maintainability of the suit was specifically raised in Ext.P3 objection filed to Ext.P2 interlocutory application for mandatory injunction, the court below proceeded with the matter even without deciding the said question. On the question of maintainability, the learned counsel would rely on the decision of the Apex Court in **Rajasthan Wakf** O.P.(C)No.2435 of 2017 :-3-: ## **Board v. Devki Nandan Pathak (AIR 2017 SC 2155)** . 5. Per contra, the learned Senior Counsel for the respondents/plaintiffs would contend that in Ext.P4 order the court below has also considered the question of maintainability of the suit and found that the property claimed by the plaintiffs and the defendants are distinct and separate and that, the defendants could not produce any material to show that the property in dispute is a waqf property. The learned counsel would also point out that C.M.A.No.11/2017 filed by the petitioners challenging Ext.P4 order of injunction is now pending consideration before the Sub Court, Tirur. 6. I have considered the rival contentions. 7. In **A.Venkatasubbaiah Naidu Vs. S.Chellappan** **(2000 (7) SCC 695)** the Apex Court held that, any order passed in exercise of the powers under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908 would be appealable as indicated in Order XLIII, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the O.P.(C)No.2435 of 2017 :-4-: same court which passed the ex parte order for any relief. Though no hurdle can be put against the exercise of the constitutional powers under Article 227 of the constitution of India, it is well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies, one or the other, before he resorts to a constitutional remedy. 8. The court below by Ext.P4 order granted mandatory injunction directing the defendants to demolish the newly constructed layer on the new foundation, which is on the extreme north end of the plaint schedule item No.2 to an extent of 10 feet from the north-eastern boundary of the said item of property towards west, shown as 'PQ' in Ext.C1 plan. The said order, which is an appealable order under Order XLIII, Rule 1(r) of the Code of Civil Procedure, 1908 is already under challenge before the Sub Court, Tirur in C.M.A.No.11/2017 filed by the defendants. In the said appeal, the defendants moved I.A.No.991/2017 seeking stay of Ext.P4 order of injunction, which interlocutory application now ## O.P.(C)No.2435 of 2017 :-5-: stands posted to 16.10.2017. The defendants, having challenged Ext.P4 order of injunction in an appeal filed under Order XLIII, Rule 1(r) of the Code, cannot seek stay of the said order in an original petition filed under Article 227 of the Constitution, especially when that order is admittedly not under challenge in this original petition, which fact is evident from the answer given by the learned counsel for the petitioners/defendants on 8.8.2017 to the defect noted by the Registry as to the maintainability of this original petition. 9. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the O.P.(C)No.2435 of 2017 :-6-: fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 10. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016(1) KHC 1]** a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 11. In the instant case, the dispute is only with respect to plaint schedule item No.2 property. Exts.C1 and C2 are the report and plan submitted by the Advocate Commissioner. The court O.P.(C)No.2435 of 2017 :-7-: below, after referring to Exts.C1 and C2 report and plan submitted by the Advocate Commissioner, the title documents of plaint schedule items 1 and 2 and also the title document of property belonging to the defendants, found in Ext.P4 order that the respective properties are distinct and separate and that, there is no dispute relating to waqf property so as to attract the bar under Section 85 of the Waqf Act, 1995. The question whether the above said finding of the court below is erroneous or not is the subject matter of challenge in C.M.A.No.11/2017 filed by the defendants before the Sub Court, Tirur. The said question cannot be decided in this original petition filed under Article 227 of the Constitution of India. 12. In such circumstances, this original petition is disposed of with the following direction; Since C.M.A.No.11/2017 filed by the petitioners/defendants now stands posted to **16.10.2017** , the lower appellate court shall consider I.A.No.991/2017, i.e., the stay petition filed by the appellants/defendants with notice to the respondents/plaintiffs and pass appropriate orders thereon, as expeditiously as possible, at any rate within a O.P.(C)No.2435 of 2017 :-8-: period of **10 days** from that date. Till such orders are passed, the interim order granted in this original petition on 9.8.2017, which was extended from time to time, shall continue to be in force. It is made clear that this Court has not expressed anything on the merits of the rival contentions and it is for both sides to raise all such contentions before the lower appellate court. Sd/- **ANIL K.NARENDRAN JUDGE** ami/11.10.17 //True copy// P.A.to Judge