Fuhad Ahammed v Idiyangara Puthiya Palli Paripalana Committee and Kerala State Waqf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 27TH DAY OF JULY 2017 / 5TH SRAVANA, 1939** **CRP(WAKF).No. 49 of 2014** **--------------------------------------ORDER IN OA 6/2012 of WAKF TRIBUNAL, KOZHIKODE DATED 07-12-2013** **---------------------------------------** ## **REVISION PETITIONER(S)/APPLICANT :-** **------------------------------------------------------------** **FUHAD AHAMMED, AGED 48 YEARS, S/O. P.N.HAMSAKOYA, REP. BY HIS POWER OF ATTORNEY HOLDER MUHAMMED JAMSHEED, S/O.P.N.HAMSAKOYA, FUHAD MAHAL, PALLIKANDI ROAD, KUNDUNGAL, KOZHIKODE - 3.** **BY ADVS.SRI.K.M.FIROZ** **SMT.M.SHAJNA FIROZ SRI.S.KANNAN** ## **RESPONDENT(S)/RESPONDENTS :-** **----------------------------------------------------** **1. THE SECRETARY IDIYANGARA PUTHIYA PALLI PARIPALANA COMMITTEE KUNDUGAL, KOZHIKODE - 673 003.** **2. THE KERALA STATE WAQF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, NEAR INTERNATIONAL STADIUM, VIP ROAD, KALOOR, ERNAKULAM – 682 017.** **R1 BY ADVS. SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.VINEETHA V.KUMAR R2 BY ADV. SRI.K.SHIBILI NAHA** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 27-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.T.RAVIKUMAR, J. & ANIL K. NARENDRAN, J. --------------------------------------C.R.P. (Waqf) No.49 of 2014 --------------------------------------------Dated this the 27[th] day of July 2017** ## **O R D E R** ## **C.T.Ravikumar, J.** This revision petition is directed against the order dated 7.12.2013 passed by the Waqf Tribunal, Kozhikode in O.A.No.6/2012. The said O.A. was filed challenging the order bearing No.E3-7084/09-1 dated 27.3.2012 passed by the Chief Executive Officer (for short, 'the CEO'), Kerala State Waqf Board. As per the said order, the CEO found that the property in question is a waqf property and consequently issued a direction to remove the encroachments from the said property and to deliver its possession to the Muthavalli of the Waqf, the Idiyangara Puthiya Palli Paripalana Committee. The revision petitioner herein filed the aforementioned O.A. under Sec.83(3) of the Waqf Act, 1995. The respondents herein entered appearance there. Obviously, the respondents had not raised any question regarding the maintainability of the O.A. Consequently, based on the final pleadings, the Tribunal formulated the following points for determination :- C.R.P. (Waqf) No.49/2014 -: 2 :- - “1) Whether the property involved in this application is a Waqf property? - 2) Whether the impugned order is legal and proper? - 3) Reliefs and costs?” Ultimately, as per the impugned order, the Tribunal dismissed the application based on its finding that the remedy open to the revision petitioner/applicant to assail the order dated 27.3.2012 is to file a suit under Sec.54(4) of the Waqf Act. In other words, it was found that the application filed under Sec.83(3) of the Act is not maintainable. It is in the said circumstances that the captioned revision petition has been filed. 2. We have heard learned counsel for the revision petitioner, learned counsel appearing for the 1[st] respondent and also learned Standing Counsel appearing for the 2[nd] respondent. 3. The core contention of the revision petitioner is that the Tribunal had not framed a specific issue as to whether the O.A. is maintainable or not. That apart, it is contended that without framing such an issue and at the same time, after framing the aforementioned issues for determination, the Tribunal had virtually allowed the parties to adduce evidence in respect of the issues framed for determination. It is also submitted by the learned counsel that none of the respondents raised any question regarding maintainability of the O.A. filed under Sec.83(3) of the Waqf Act. In C.R.P. (Waqf) No.49/2014 -: 3 :- short, the contention is that the Tribunal went wrong in dismissing the O.A. without considering the question of maintainability, rather, based on its finding that the remedy open to the revision petitioner/ applicant is to file a suit under Sec.54(4) of the Act and an application under Sec.83(3) is not maintainable. 4. Learned counsel for the revision petitioner submitted that because of the failure on the part of the Tribunal in framing an issue regarding maintainability and also in view of the failure to raise such a question by the respondents, the revision petitioner had no opportunity to address on that issue. In other words, an opportunity to raise his contention on that question was deprived of. That apart, it is contended that since the parties went to trial and adduced evidence in terms of the provisions under Order XIV, the Tribunal ought to have returned findings on all issues. 5. Learned counsel appearing for the 2[nd] respondent submitted that in the O.A., a written statement was filed on behalf of the Waqf Board and in the said statement, based on the provisions under Sec.54(4) of the Waqf Act, it is specifically contended that O.A. is not maintainable and further that against the order dated 27.3.2012 passed by the CEO of the Kerala State Waqf Board only a suit under Sec.54(4) of the Waqf Act alone would lie. Further, it is specifically requested for framing the question of C.R.P. (Waqf) No.49/2014 -: 4 :- maintainability as a preliminary issue. Obviously the 1[st] respondent Idiyangara Puthiya Palli Paripalana Committee did not raise any such question regarding the maintainability of the O.A. Be that as it may, it is a fact that without framing a question regarding the maintainability of the O.A., issues were framed by the Tribunal and the parties were permitted to let in evidence in respect of the issues framed for consideration. It is thereafter that the Tribunal had arrived at a conclusion that an application under Sec.83(3) of the Waqf Act would not lie against the order dated 27.3.2012 passed by the CEO of the Kerala State Waqf Board and only a suit under Sec.54(4) of the Act would lie. Thus, it is obvious that the Tribunal virtually considered and dismissed the O.A. on an issue, which was not at all framed. At the same time, the contention of the learned counsel is that the Tribunal, having framed the issues and permitted the parties to adduce evidence, ought to have returned findings on all issues. To elaborate the said point, learned counsel for the revision petitioner drew our attention to the following recital in the impugned order :- “Since the said question has to be considered in a properly instituted suit, I am not going to consider the question whether the applicant has got title and right over the property involved in this case. I find that there is no scope for interference with the order passed by the Chief Executive Officer of the Wakf.” C.R.P. (Waqf) No.49/2014 -: 5 :- The afore-extracted recital from the impugned order would reveal that based on its finding that the application under Sec.83(2) of the Waqf Act would not lie against the order dated 27.3.2012 passed by the CEO and only a suit under Sec.54(4) of the Act would lie, the Tribunal decided not to consider the question whether the applicant got title or right over the property involved in this case. At the same time, it would also reveal that after making such an observation, the Tribunal held that there is no scope for interfering with the order passed by the CEO of the Waqf Board. That apart, a careful scanning of paragraph 7 of the impugned order would reveal that after adverting to the documents produced and marked in the O.A., the Tribunal had arrived at a specific finding that the building occupied by the applicant/revision petitioner is a waqf property as per Ext.B1. Thus, there is incongruity in the findings and conclusions in the impugned order. On one hand, the Tribunal observed that it is not going to consider the question whether the applicant got right and title over the property involved in this case and on the other hand, based on Ext.B1, the Tribunal had arrived at a definite finding that the building occupied by the applicant is a waqf property. 6. In view of the aforesaid situation obtained in this case, the learned counsel appearing for the revision petitioner submitted C.R.P. (Waqf) No.49/2014 -: 6 :- that the matter may be remanded for fresh consideration, in accordance with law, in terms of the decision of a Division Bench of this Court in **Prasad R.** v. **Travancore Devaswom Board and Another** [2017 (3) KHC 760 (DB)]. Paragraphs 28 and 29 of the said judgment assumed relevance in the context, which read thus :- “xx xx xx 28. There is also an equally compelling additional reason why we will have no other option but to remand the matter to the Court below. This is because Order XIV Rule 2(1) CPC mandates that notwithstanding that a case may be disposed of on a preliminary issue, the Court will have to pronounce judgment on all issues. A provision that is very similar to his Rule is available in the Civil Rules of Practice, namely Rule 110, which also prescribed that except where a suit is disposed of under Order XIV Rule 2 of the CPC, the Court will be obligated to record the findings on all issues framed, even though the decision on some of them would be sufficient to dispose of the suit. 29. In the present case, as we have already recorded above, the irony is that the suit has been dismissed without the Court entering into findings on any of the issues raised and framed, but on the basis of the conclusions arrived at on a question which was never framed or raised as an issue. We cannot approve this and we have to, therefore, remand the matter so as to enable the Court to enter into findings and pronounce judgment on all the issues that were framed by it.” xx xx xx ## 7. A perusal of the said decision in **Prasad's case** would reveal that this Court held that dismissal of a suit on an issue which C.R.P. (Waqf) No.49/2014 -: 7 :- was not framed is improper and in effect, it is illegal. In this case also, it is evident that indisputably the Tribunal had not framed any question regarding the maintainability of the O.A. It is to be noted that the Tribunal had not framed such an issue despite the fact that such an objection was specifically raised by the Waqf Board in its written statement. Even then, the Tribunal without framing an issue regarding the maintainability, but, after framing issues as specifically mentioned hereinbefore, conducted the trial and allowed the parties to adduce evidence. It is thereafter that the Tribunal dismissed the O.A. without specifically entering into the findings on all the issues framed. We may also constrain to say that a scanning of the impugned order would reveal that the Tribunal virtually held that the question regarding the title and right of the applicant/revision petitioner over the property in question need not be gone into in the O.A. Despite such an observation, paragraph 7 of the impugned order passed by the Tribunal would reveal that it had specifically entered into a finding that the building in question is a waqf property, in view of Ext.B1. 8. In the contextual situation, it is relevant to refer to the decision of the Hon'ble Apex Court in **Pratima Sinha and Others** v. **Shashi Kumar Narain Sinha and Others** [2004 (13) SCC 599], wherein, the Apex Court held that the dismissal of a suit on a C.R.P. (Waqf) No.49/2014 -: 8 :- preliminary ground without framing any such issues would be an illegality and the Apex Court went on to hold that even after framing all the issues if the trial Judge is of the view that any of the issues raised would dispose of the suit either wholly or in part then the Judge could, on the basis of the provisions of Order XIV Rule 2 of the Code of Civil Procedure decide such issues. But, at the same time, even for deciding the fate of the suit in that manner, it has to be done strictly following the procedure. In other words, it could be done only after framing the said issue which could dispose of the suit either wholly or in part. In this case, if the Tribunal was of the view that based on a pure question of law regarding maintainability, the O.A. could be disposed of, it ought to have, rather, it should have framed such an issue. Having failed to frame such an issue on the question of maintainability, the Tribunal went wrong in dismissing the O.A. based on its finding on the question of maintainability and at the same time in entering into the nature of the property viz., whether it is a waqf property or not. 9. In the peculiar circumstances of this case, we are of the view that the decision in **Prasad's case** (supra) has no application. In **Prasad's case** the question of maintainability was raised based on the failure to issue a notice, which was mandatory under Sec.55 of the Travancore Cochin Hindu Religious Institutions Act, 1950 C.R.P. (Waqf) No.49/2014 -: 9 :- before the institution of the suit. On facts, we are of the view that the decision of the Apex Court in **Pratima Sinha's case** (supra) and also a Division Bench decision of this Court in **Kunhimuhammed and Others** v. **Palakkottu Issathul Islam Sangam, Vandoor and Others** [2016 (3) KHC 591 (DB)] are relevant for consideration of this case. The ratio of the said decisions is to the effect that even after framing all the issues, if the trial court is of the view that any of the issues raised would dispose of the suit either wholly or in part then, the Court could, based on the provisions of Order XIV Rule 2, decide that issue, which would decide the fate of the suit. But, at the same time, going by the decision even such a procedure could be adopted only after specifically framing an issue regarding the maintainability of the suit. 10. We have no hesitation to hold that in view of the procedural irregularity rather illegality, the Tribunal had virtually deprived the parties of the opportunity to address on the question of maintainability. That apart, having framed issues and allowed the parties to adduce evidence or in other words, after having conducted the trial, the Tribunal ought to have passed an order strictly in terms of the provisions of Order XIV, Rule 1 of the CPC. C.R.P. (Waqf) No.49/2014 -: 10 :- In other words, the Tribunal ought to have recorded findings on all issues. 11. According to us, if the Tribunal is directed to frame an issue on the question of maintainability of the application under Sec.83(3) in view of the provisions for instituting suit under Sec.54(4) and to decide it as a preliminary question it would be unnecessary to issue a direction to return findings on all issues framed. This is because of more than one reason. If ultimately it is found that the suit is not maintainable then issuing such a direction would amount to compelling the trial court to do a wasteful exercise. The other reason is that returning of findings by an incompetent forum would be a nullity. In the light of the said discussions and taking into account the fact that the Waqf Board had specifically raised the question regarding maintainability the Tribunal was under an obligation to frame specifically an issue regarding maintainability of the O.A., which is a pure question of law in terms of Order XIV Rule 2 CPC. In the said circumstances, the impugned order is set aside and the matter is remanded for fresh consideration. The Tribunal shall frame a specific issue regarding the maintainability of the O.A. and afford opportunities to the parties to address on that issue. Subject to the decision thereon, in other words, if it is found that C.R.P. (Waqf) No.49/2014 -: 11 :- the suit is maintainable then, the Tribunal shall enter into a finding on all issues framed by it. The revision petition is disposed of as above. **Sd/C.T.RAVIKUMAR JUDGE Sd/ANIL K. NARENDRAN JUDGE** //TRUE COPY// P.A. TO JUDGE Jvt/28.7.2017