HabeeBullah v. Mannadi Muslim Jama-ath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **FAO (RO).No. 47 of 2014** **AGAINST THE ORDER OF REMAND IN AS 81/2012 of DISTRICT COURT, PATHANAMTHITTA DATED 06-12-2013.** **JUDGMENT DATED 28-07-2012 IN O.S NO.302 OF 2009 ON THE FILE OF THE MUNSIFF'S COURT, ADOOR.** ## **APPELLANT/RESPONDENT/PLAINTIFF :-** **HABEEBULLAH, AGED 64 YEARS, SEENA BHAVAN, ENATHU MURI, ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.K.SHAJ** **SRI.SAJJU.S** ## **RESPONDENTS/APPELLANTS/DEFENDANTS :-** **1. THE MANNADI MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT, MANNADI, KADAMPANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA - 689 645.** **2. THE SECRETARY, MANNADI MUSLIM JAMA-ATH, KADAMPANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA - 689 645.** **R1 & R2 BY ADV. SRI.S.SHANAVAS KHAN.** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## A.HARIPRASAD, J. -------------------------------------- ## F.A.O (RO) No.47 of 2014 -------------------------------------- Dated this the 5th day of July, 2018 ## J U D G M E N T Plaintiff in a suit for declaration and consequential injunction, dissatisfied with the remand order passed by the lower appellate court, has approached this Court with this appeal. Plaintiff succeeded in the trial court against which the defendants preferred an appeal before the lower appellate court. The lower appellate judge, stating so many unconvincing reasons, remanded the case to the trial court with the following directions : - “ In the result, - (i) Appeal is allowed by way of remand. - (i) The decree and judgment passed by lower court in OS No.302/09 is set aside. F.A.O (RO) No.47 of 2014 2 - (ii) The case is remitted back to the trial court to the direction to pass a revised judgment based on my findings in the foregoing paragraphs and in accordance with law. - (iii) The lower court shall dispose off the suit as expeditiously as possible. - (v) In the circumstances, the parties are directed to suffer their respective costs. ” 2. Brief facts are as follows : Plaintiff is a Muslim by religion. He and his family are members of Mannady Muslim Jama-ath. On 12-11-2007, his daughter married a Christian under the provisions of the Special Marriage Act. On 02-03-2008, the Secretary of the first defendant Jama-ath issued a notice to the plaintiff alleging that his daughter's marriage was unislamic and they sought an explanation from him. Thereafter, the plaintiff received another letter on 12-07-2009 intimating that the memberships of the F.A.O (RO) No.47 of 2014 3 entire family members of the plaintiff have been terminated. According to the plaintiff, the action on the part of the defendants is a clear violation of his civil right. Therefore, a suit under Section 9 of the C.P.C is maintainable. 3. The defendants filed a written statement contending that the plaintiff has been expelled from the membership of the Jama-ath for valid reasons. According to them, no proper explanation was given by the plaintiff, despite calling for the same. The plaintiff had even published a defamatory notice. It is also contended that the Jama-ath has been registered with the Wakf Board and it functions under the guidelines issued by the Wakf board from time to time. 4. The trial court elaborately considered the question whether the suit is maintainable along with other issues. It is found that the suit falls under Section 9 of the C.P.C. It is also found by the trial court that the civil rights of the plaintiff have been violated and hence the declaratory and F.A.O (RO) No.47 of 2014 4 injunction decree sought for could be granted. 5. Heard the learned counsel for the appellant and respondents. 6. It is contended by the learned counsel for the appellant that the lower appellate court thoroughly failed to discharge its responsibility as the last court on facts. According to him, the lower appellate court baselessly relying on the head notes of certain decisions, which have no connection with the facts in this case, found that the trial court failed in its duty in arriving at the correct conclusion. 7. Per contra, learned counsel for the defendants/respondents would contend that the Jama-ath, being an entity registered under the Wakf Act, 1995, (in short 'the Wakf Act') is governed by the provisions of the Act and therefore a suit before a civil court is not maintainable. 8. At the outset, I am unable to agree with the submission that the questions raised in the suit have any nexus with the provisions in the Wakf F.A.O (RO) No.47 of 2014 5 Act. Section 6 of the Wakf Act defines the disputes regarding Wakf. Section 7 enumerates the power of Tribunal to determine disputes regarding Wakf. None of the disputes raised in this suit falls within the scope of Section 6 or 7 of the Wakf Act. 9. Learned counsel for the respondents, relying on Section 85 of the Waft Act, contended that the suit is barred by the provisions in the Section. The Section reads as follows : “ 85. Bar of Jurisdiction of civil courts .- No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any wakf property or other matter which is required by or under this Act to be determined by a Tribunal.” 10. It is clear from the rival contentions that in this suit there is no F.A.O (RO) No.47 of 2014 6 dispute relating to any Wakf or Wakf property. Another limb of the above Section says that no suit or other legal proceeding shall lie in any civil court in respect of any matter which is required by or under this Act to be determined by a Tribunal. The question of ex-communication from membership of the Jama-ath can never be treated as a dispute falling under Section 6 or 7 of the Wakf Act and Tribunal is incompetent to decide the questions in the suit. 11. The contention raised by the learned counsel for the respondents is that the plaintiff and his family members were beneficiaries of the Wakf at one point of time. The question raised in this case is not regarding the benefits derived from the Jama-ath, but regarding the expulsion from the Jama-ath itself. In order to claim benefit, the plaintiff must be regarded as a member of the Jama-ath. When his membership itself was terminated, the question remaining to be decided is only whether F.A.O (RO) No.47 of 2014 7 the termination of membership was proper or legal. This is a question relating to the civil right of a citizen falling under Section 9 of the C.P.C. 12. In modest words, I state that the lower appellate judge, without understanding the real issues involved in the case, based his reasoning on certain provisions of the Wakf Act. To justify his reasoning, the lower appellate judge relied on certain decisions of the Supreme Court having no connection to the facts in dispute. Not only that, the lower appellate court, presided over by a District Judge, has not taken care to read the decision relied on in full, instead he has quoted the head notes of the judgment. This Court in T.K.Kunhikrishnan v. State of Kerala (2018(1) K.H.C 813) , has deprecated the practice adopted by subordinate courts in relying on head notes to decide, because the head note is not a part of the judgment at all and it is written up by the editor of the Law Journal concerned. Ignoring the fundamental principles, the District Judge unjustifiably and unlawfully F.A.O (RO) No.47 of 2014 8 remanded the case. Such remands have been frowned upon in many decisions of this Court and the Supreme Court. In conclusion, I may say that the judgment passed by the lower appellate court is thoroughly perfunctory and full of legal and factual mistakes. Therefore, it has to be set aside. In the result, the appeal is allowed. The judgment of the lower appellate court is set aside. The lower appellate court shall decide the appeal on merits within a period of one month from the date of production of this judgment. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk