OP (Wakf) No. 3446 of 2013

# **IN THE HIGH COURT OF KERALA AT ERNAKUALM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA,** # **1943** **OP (WAKF) NO. 3446 OF 2013** **AGAINST THE ORDER DATED 3.4.2013 IN WOA 5/2012 OF WAKF** **TRIBUNAL, ERNAKULAM** ## **PETITIONERS:** 1 **1.KOZHIKARA VEETTIL SEYD ALAVI (DIED) POOMALA THYKAVU VAKA KANJIPURAYIL THAMASAM, VICE CHAIRMAN, MARHOOM FAKIR SINUDHEEN THANGAL SMARAKA TRUST, WEST VENGOLA P.O., PERUMBAVOOR.** 22 **2. SAINABA SAIDALAVI, AGED 55 YEARS, W/O.LATE KOZHIKARA VEETTIL SEYED ALAVI, KOZHIKARA VEETTIL, WEST VENGOLA P.O, PERUMBAVOOR, ERNAKULAM.** **3. SHERIFFA K.S, AGED 40 YEARS, D/O.LATE KOZHIKARA VEETTIL SEYED ALAVI, KOZHIKARA VEETTIL, WEST VENGOLA P.O, PERUMBAVOOR, ERNAKULAM.** **4. JAFFAR K.S, AGED 37 YEARS, S/O.LATE KOZHIKARA VEETTIL SEYED ALAVI, KOZHIKARA VEETTIL, WEST VENGOLA P.O, PERUMBAVOOR, ERNAKULAM.** **5. FOUSIYA.K.S, AGED 26 YEARS, D/O.LATE KOZHIKARA VEETTIL SEYED ALAVI, KOZHIKARA VEETTIL, WEST VENGOLA P.O, PERUMBAVOOR, ERNAKULAM.** **(Additional petitioners 2 to 6 are impleaded as per order dated 22.03.2018 in I.A.No.525/2018.)** **BY ADV SRI.T.M.ABDUL LATHEEF** ## **RESPONDENTS:** **1 P.B.ABDUL HAMEED S/O.BAVA, PAATTU VATTAPARAMBIL, WEST VENGOLA P.O., PERUMBAVOOR, PIN 683556.** **2 P.E.ABDUBACKER S/O.EBRAHIM, PAATTU PLACHERY, P.O.ARAKKAPPADY, CHELAKULAM, PATTIMATTAM - 683554.** 2 _O.P(Wakf) No.3446 of 2013_ - **3 ABDUL KHADER MOULAI S/O.AVUKKAR, PAQATTU VATTAPARAMBIL, WEST VENGOLA P.O., PERUMBAVOOR-683556.** - **4 SUBURA, W/O.ABDUL KAREEM, VARAPOTHMUNDETH, KAVULGALPARAMBU, P.O ARUKKAPPADY, CHELAKKULAM683554.** - **5 KAIRUNNISA D/O.ABDUL KAREEM, VARAPOTHMUNDETH, KAVUNGALPARAMBU, P.O., ARAKKAPPADY, CHELAKKULAM683554.** - **6 RASHEEDA, D/O.ABDUL KAREEM, VARAPOTHMUNDETH, KAVULGALPARAMBU, P.O. ARAKKAPPADY, CHELAKKULAM683554.** - **7 NASEERA, D/O.ABDUL KAREEM, VARAPOTHMUNDETH, KAVULGALPARAMBU, P.O. ARAKKAPPADY, CHELAKKULAM683554.** - **8 V.S.KUNHU MUHAMMED VELLAKKATTU HOUSE, SECRETARY, CHELAKKULAM MUSLIM JAMA-ATH, VENGOLA P.O., ERNAKULAM-683556.** - **9 V.S.MOHAMMEDALI S/O.SEETHI, VARAPOTHMUNDETH, KAVULGALPARAMBU, P.O.ARAKKAPPADY, CHELAKULAM-683554.** - **10 V.S.SUBAIDA BEEVI** - **D/O.SEETHI, VARPOTHMUNDETH, KAVULGALPARAMBU, P.O.ARAKKAPPADY, CHELAKKULAM-683554.** - **11 THE KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, V.I.P.ROAD, KALOOR, KOCHI-682017.** **BY ADVS.** **SRI.T.K.HASSAN SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD SRI.P.K.MOHAMMED PUZHAKKARA** THIS OP (WAKF) HAVING BEEN FINALLY HEARD ON 10.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 _O.P(Wakf) No.3446 of 2013_ ## **“C.R”** ## _**S.V.BHATTI & A. BADHARUDEEN, JJ.**_ ================================ _O.P(Wakf) No.3446 of 2013_ ================================ _Dated this the 10[th] day of December, 2021_ ## _**J U D G M E N T**_ ## _**A.BADHARUDEEN, J.**_ This Original petition has been filed by the petitioners, who are aggrieved by Ext.P3 order dated 3.4.2013 passed by the Wakf Tribunal, Ernakulam. The following reliefs sought for in this Original Petition: _“(i) To call for the records relating to Exts.P-1 to P-4 and to issue any order or direction, directing setting aside Ext.P-3 order;_ _(ii) To issue any order or direction, directing transfer of W.O.A.No.5 of 2012 and its restoration application pending before the Wakf Tribunal, Ernakulam, to any other Court or Tribunal as this Honourable Court deem fit;_ _(iii) Any other appropriate, writ, order or direction also may be granted to meet out justice under the circumstances of the above case.”_ 2. Heard both sides in detail. 4 _O.P(Wakf) No.3446 of 2013_ 3. Perused the order impugned. Precisely the allegation is that WOA.No.5/2012, which was dismissed for default, was sought to be re-admitted for deciding the same on merits by the petitioners. Initially, I.A.No.243/2012 was filed under Section 5 of the Limitation Act to condone delay of 15 days in filing petition for re-admission. Thereafter, I.A.No.214/2013 also was filed to correct the number of delay as 22 days, instead of 15 days. 4. After hearing both sides, the Wakf Tribunal dismissed the application. 5. It is submitted by the learned counsel for the original petitioners that the Tribunal dismissed the applications on flimsy grounds. 6. On perusal of Ext.P3, technicalities were discussed in detail with a view to non-suit the petitioners though no detailed discussion with regard to the element of `sufficient cause'. 7. Coming to the core issue, Section 5 of the Limitation Act provides extension of prescribed period in certain cases. For clarity, Section 5 of the Limitation Act is extracted hereunder: 5 _O.P(Wakf) No.3446 of 2013_ _“5. Extension of prescribed period in certain cases:_ _Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period._ _Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”_ 8. In construing Section 5 of the Limitation Act, the predominant point to be considered is whether `sufficient cause' for excusing the delay is shown to exercise the discretion vested with the court in favour of the party. There are catena of decisions on this point. 9. In [1987(2) SCC 107], _**Collector, Land Acquisition, Anantnag & anr. v. Mst. Katiji & Ors.**_ , a two – Judge Bench of the Apex Court observed that the legislature has conferred power to condone delay by enacting S.5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression “sufficient cause” employed by the legislature is adequately 6 _O.P(Wakf) No.3446 of 2013_ elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, for that is the lifepurpose for the existence of the institution of courts. 10. _In_ [1988 (2) SCC 142], _**G.Ramegowda, Major and Others v. Special Land Acquisition Officer, Bangalore,**_ Venkatachaliah, J. _(as his Lordship then was), speaking for the Court, has opined thus:-_ _“The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd., AIR 1962 SC 361; Shakuntala Devi Jain v. Kuntal Kumari, 1969 (1) SCR 1006; Concord of India Insurance Co. Ltd. v. Nirmala Devi, 1979 (4) SCC 365; Lala Mata Din v. A.Narayanan, AIR 1969 SC 575; Collector, Land Acquisition v. Katiji, 1987 (2) SCC 107 etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time – barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression `sufficient cause' in S.5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.”_ 11. In [1984 (4) SCC 66], _**O.P.Kathpalia v. Lakhmir**_ _**Singh (dead) and Others**_ , the court was dealing with a fact 7 _O.P(Wakf) No.3446 of 2013_ -situation where the interim order passed by the court of first instance was an interpolated order and it was not ascertainable as to when the order was made. The said order was under appeal before the District Judge who declined to condone the delay and the said view was concurred with by the High Court. The Court, taking stock of the facts, came to hold that if such an interpolated order is allowed to stand, there would be failure of justice and, accordingly, set aside the orders impugned therein observing that the appeal before the District Judge deserved to be heard on merits. 12. In [2005(3) SCC 752], _**State of Nagaland v. Lipok AO and Others**_ , the Court, after referring to [1975 (2) SCC 840], _New India Insurance Co. Ltd. v. Shanti Misra_ , [1998 (7) SCC 123], _N.Balakrishnan v. M.Krishnamurthy_ , [1996 (3) SCC 132], _State of Haryana v. Chandra Mani_ , and [1996 (10) SCC 634], _Special Tehsildar, Land Acquisition v. K.V.Ayisumma_ , came to hold that adoption of strict standard of proof sometimes fails to protect public justice and it may result in public mischief. 13. In [2010 (2) SCC 786], _**Improvement Trust,**_ 8 _O.P(Wakf) No.3446 of 2013_ _**Ludhiana v. Ujagar Singh and Others**_ , it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves. 14. A reference to the principle stated in [ 2010(8) SCC 685], _**Balwant Singh (dead) v. Jagdish Singh and Others**_ , would be quite fruitful. In the said case the Court referred to the pronouncements in [AIR 1964 SC 215], _**Union of India v. Ram Charan** ,_ [1997 (7) SCC 556], _**P.K.Ramachandran v. State of Kerala**_ , and [2009 (11) SCC 183] _**Katari Suryanarayana v. Koppisetti Subba Rao**_ , and stated thus:- _“25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.”_ 15. In a subsequent decision reported in [2014 KHC 9 _O.P(Wakf) No.3446 of 2013_ 4177], _**Brijesh Kumar & Ors. v. State of Haryana & Ors.**_ , the Apex Court held that sufficient cause is a condition precedent for exercising discretion by Court for condoning delay. 16. Thus the law is settled that there should not be a pedantic approach while construing the term “sufficient cause” but the principle that is to be borne in mind is that the matter has to be dealt with in a rational, commonsense and pragmatic manner to render substantive justice and to avoid denial of justice. 17. Therefore, when “sufficient cause” is shown, the court is bound to exercise its discretion to render justice by condoning the delay. At the same time, the court should take into account the culpable negligence on the party and in such cases the discretion to be exercised in the negative. 18. In this context, it has to be noted that disposal of matters on merits is the statutory sanction and the courts would be liberal in condoning delay, in cases, where “sufficient cause” is established. It has to be observed further that when the delay is for a short period, the discretion should be exercised more 10 _O.P(Wakf) No.3446 of 2013_ liberally without insisting for explanation for each day's delay. Here only 22 days' delay (though it was stated in the first petition as 15 days) was sought to be condoned. According to the original petitioners, the application for re-admission could not be filed since the petitioners were engaged in some urgent personal matters and thereby they could not contact the lawyer. When considering 22 days' of delay, the above explanation to be read as a “sufficient cause”. In this context, the Tribunal should have allowed the petition and decided the appeal on merits. As such , the Tribunal went wrong in passing Ext.P3 order. 19. In the result, this Original Petition stands allowed. Ext.P3 order impugned is set aside. Accordingly, the delay in filing the appeal stands condoned and the appeal re-admitted back to file. 20. Therefore, the parties are directed to appear before the Tribunal on 10.01.2022 at 11 a.m for pursuing the appeal, WOA.No.5 of 2012. 20. The learned Tribunal is directed to proceed with the appeal on merits, in accordance with law. 11 _O.P(Wakf) No.3446 of 2013_ Considering that the matter is of the year 2012, the Tribunal is directed to expedite disposal of WOA.No.5 of 2012, at any rate, within 3 months from the date of receipt of a copy of this judgment or its production by the parties concerned. _Sd/-_ ## _**(S.V.BHATTI, JUDGE)**_ _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ 12 _O.P(Wakf) No.3446 of 2013_ ## **APPENDIX OF OP (WAKF) 3446/2013** **PETITIONER(S)' EXHIBITS EXHIBIT-P1: TRUE COPY OF THE ORDER DATED 08.02.2000 PASSED BY THE 11TH RESPONDENT IN PETITION NO.10 OF 1987. EXHIBIT-P2: TRUE COPY OF THE ORDER PASSED BY THE WAKF TRIBUNAL IN IA.NO.20/2012 IN WOA.NO.5/2012. EXHIBIT-P3: TRUE COPY OF THE COMMON ORDER DATED 03.08.2013 PASSED BY THE WAKF TRIBUNAL IN I.A.NO.243/12 IN WOA NO.5/2012 AND IA.NO.214/2013 IN I.A.NO.243/2012 IN WOA.5/2012. EXHIBIT-P4: TRUE COPY OF THE JUDGMENT DATED 26.06.2013 PASSED BY THIS HONOURABLE COURT IN W.P.(C) NO.14869/2013. EXHIBIT-P5: TRUE COPY OF THE NOTICE NO.E4-5847/13 DATED 15.01.2014 ISSUED BY THE 11TH RESPONDENT. EXHIBIT-P6: TRUE COPY OF THE ORDER DATED 25.09.2013 PASSED BY THE SENIOR SUPERINTENDENT, WAKF BOARD IN I.A.NO.94/13 IN O.P.134 OF 2013. RESPONDENT(S)' EXHIBITS EXHIBIT R1 TRUE PHOTOSTAT COPY OF THE ORDER DATED 08.02.2000 OF THE WAKF BOARD. EXHIBIT R2 TRUE PHOTOSTAT COPY OF ORDER DATED 24.11.2011 OF THE WAKF BOARD.**