OP(WAKF) NO.5 OF 2024

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024/14TH PHALGUNA, 1945 ``` ``` OP (WAKF) NO.5 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 06.01.2024 IN W.O.S.NO.66 ``` ``` OF 2019 OF WAKF TRIBUNAL, KOZHIKODE ``` ## **`PETITIONER/PLAINTIFF:`** ``` VAZHAKKAD DAR-UL ULOOM WAQF REPRESENTED BY ITS SECRETARY, DAR-UL-ULOOM ASSOCIATION MOHAMMED IBRAHIM, S/O MOHAMMED ALI, AGED 65 YEARS, VAZHAKKAD, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN – 673 640 ``` ``` BY ADVS. K.SHIBILI NAHA A.LOWSY SRINATH C.V. GAYATHRI RAJAGOPAL ``` ## **`RESPONDENTS/DEFENDANT:`** ``` 1VAZHAKAD VALIYA JUMA-ATH PALLI PARIPALANA COMMITTEE, REPRESENTED BY ITS PRESIDENT, VAZHAKKAD P.O, MALAPPURAM DISTRICT, PIN 673 640 ``` ``` 2THE CHAIRMAN KERALA STATE WAQF BOARD, EROTH BUILDING, BANK ROAD, KOZHIKODE, PIN – 673 004 ``` - **`3 KERALA STATE WAQF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, EROTH BUILDING, BANK ROAD KOZHIKODE, PIN 673 004`** 2 OP(Wakf) No.5 of 2024 ``` BY ADVS. R.RAMADAS JAMSHEED HAFIZ ``` ## **`OTHER PRESENT:`** ``` SRI.JAMSHEED HAFIZ- STANDING COUNSEL- KERALA STATE WAKF BOARD ``` ``` THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON ``` ``` 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 OP(Wakf) No.5 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the plaintiff in W.O.S.No.66 of 2019 on the file of the Waqf Tribunal, Kozhikode, which was one filed against respondents 1 and 2 and the 3[rd] respondent State Waqf Board seeking declaratory reliefs in respect of the plaint schedule property as well as ‘Sunni Mosque’ known as ‘Valiya Palli’, burial ground known as ‘Quabaristhan’, etc. The petitioner has filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Exts.P6 order dated 06.01.2024 and P7 judgment dated 06.01.2024 of the Waqf Tribunal, whereby I.A.No.34 of 2024 filed by the petitioner to adjourn W.O.S.No.66 of 2019 to any day in February, 2024 stands rejected and consequently, W.O.S.No.66 of 2019 stands dismissed for default. In Ext.P6 order, whereby I.A.No.34 of 2024 stands rejected, it is stated that the suit is of 5 years old; several opportunities were given to the plaintiff for taking steps and hence, adjourning the case without any proper reason will not be advisable in the interest of justice. 2. By the order dated 13.02.2024, Registry was directed to number this original petition, taking note of the law laid down 4 OP(Wakf) No.5 of 2024 by a Three-Judge Bench of the Apex Court in **Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423]** , wherein it was reiterated that Article 227 of the Constitution of India can be invoked by the High Court _suo motu_ as a custodian of justice. In that order it was made clear that the maintainability of the original petition will be decided with notice to respondents 1 and 2. 3. On 14.02.2024, when this original petition came up for admission, notice was ordered to the 1[st] respondent by special messenger and the learned Standing Counsel for the Kerala State Waqf Board entered appearance for respondents 2 and 3. 4. Heard the learned counsel for the petitioner-plaintiff, the learned counsel for the 1[st] respondent-1[st] defendant and also the learned Standing Counsel for the Kerala State Waqf Board for respondents 2 and 3-defendants 2 and 3. 5. The petitioner-plaintiff filed W.O.S.No.66 of 2019 seeking declaratory reliefs in respect of the plaint schedule property as well as ‘Sunni Mosque’ known as ‘Valiya Palli’, burial ground known as ‘Quabaristhan’, etc. 6. During the course or arguments, the learned counsel for the petitioner would point out the provisions under Rule 5 of the Kerala Civil Courts (Case Flow Management) Rules, 2015, 5 OP(Wakf) No.5 of 2024 which deals with calling of cases, especially Rule 5(1)(g), which deals with pre-trial steps, Rule 5(2), which deals with preparation of two cause lists of the cases for the calling work everyday and Rule 5(3), which deals with framing of issues, pretrial steps, evidence including the examination in chief, crossexamination, re-examination, etc. The learned counsel for the petitioner would also point out Rule 104 of the Civil Rules of Practice, which deals with application for directions, especially, Rule 104(7), which deals with any other matter or proceeding necessary to be considered or taken previously to the trial of the suit. 7. The learned counsel for the 1[st] respondent-1[st] defendant would point out that, if the petitioner is feeling aggrieved by the dismissal of W.O.S.No.66 of 2019 for default, by Ext.P7 judgment dated 06.01.2024 of the Waqf Tribunal, consequent to the dismissal of I.A.No.34 of 2024 by Ext.P6 order dated 06.01.2024, instead of invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, he could have filed an application before the Waqf Tribunal, invoking the provisions under Order IX Rule 9 of the Code of Civil Procedure, 1908, seeking restoration of that suit dismissed for default. The learned counsel would point out that, 6 OP(Wakf) No.5 of 2024 in view of the provisions under Section 83(5) of the Waqf Act, 1994, the Waqf Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. 8. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 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 fountain of justice remains pure and unpolluted in order to 7 OP(Wakf) No.5 of 2024 maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 10. In **Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423]** a Three-Judge Bench of the Apex Court reiterated that Article 227 of the Constitution of India can be invoked by the High Court _suo motu_ as a custodian of justice. 11. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. From the pleadings and materials on record and the submissions made at the Bar, we notice that in W.O.S.No.66 of 2019, based on the orders passed in an interlocutory application filed by the plaintiff, an Advocate Commissioner was deputed, who submitted a report before the Tribunal in the year 2022. Thereafter, the plaintiff filed another interlocutory application, on 23.07.2022, for deputing the very same Advocate Commissioner 8 OP(Wakf) No.5 of 2024 to submit a report on the aspects stated in that interlocutory application. In that interlocutory application, by the order dated 26.07.2022, the Tribunal directed the Advocate Commissioner to submit further report. On 18.10.2023, the matter was listed before the Tribunal, awaiting the report of the Advocate Commissioner. Thereafter, it was listed on 01.01.2024 for the report of the Advocate Commissioner. On 04.01.2024, the Advocate Commissioner submitted Ext.P4 report. Immediately on receipt of that report, the Tribunal listed the W.O.S.No.66 of 2019 to 06.01.2024 for evidence. Therefore, the petitioner filed I.A.No.34 of 2024 seeking an order to adjourn the suit to any day in February, 2024. That interlocutory application was supported by an affidavit sworn to by the learned counsel for the petitioner. On 06.01.2024, when that interlocutory application came up for consideration, the Tribunal dismissed the same by Ext.P6 order, for the reason stated therein, which was followed by Ext.P7 judgment, whereby the suit was dismissed for default. 13. The procedure adopted by the Waqf Tribunal while dismissing W.O.S.No.66 of 2019 for default by Ext.P7 judgment dated 06.01.2024, after dismissing I.A.No.34 of 2024 by Ext.P6 order dated 06.01.2024, immediately after the filing of Ext.P4 report of the Advocate Commissioner on 04.01.2024 is per se 9 OP(Wakf) No.5 of 2024 arbitrary and illegal and even contrary to the basic principles of natural justice, which has resulted in gross and manifest injustice to the petitioner-plaintiff. In such circumstances, interference on Ext.P6 order and Ext.P7 judgment of the Waqf Tribunal is highly essential, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, in view of the law laid down by the Apex Court in the decisions referred to supra. Accordingly, this original petition is allowed by setting aside Ext.P6 order dated 06.01.2024 in I.A.No.34 of 2024 in W.O.S.No.66 of 2019 and Ext.P7 judgment dated 06.01.2024 in W.O.S.No.66 of 2019 of the Waqf Tribunal, Kozhikode, thereby restoring W.O.S.No.66 of 2019 to file. Both parties are directed to appear before the Waqf Tribunal on **25.03.2024** . The Tribunal shall proceed with the suit further, after affording both sides a reasonable opportunity to file their objections, if any, to Ext.P4 report of the Advocate Commissioner. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** ded 10 OP(Wakf) No.5 of 2024 ## **`APPENDIX OF OP (WAKF) 5/2024`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1 ``` ``` A TRUE COPY OF THE PLAINT IN O.S.(W) NO. 66/2019(OLD O.S(W)NO. 23/2018) ON THE FILES OF THE WAQF TRIBUNAL KOZHIKODE ``` ``` EXHIBIT P2A TRUE COPY OF THE JUDGMENT IN CRP (WAKF) NO.35/2021 DATED 07/ 07/2022 RENDERED BY THIS HON'BLE COURT ``` ``` EXHIBIT P3 ``` ``` A TRUE COPY OF THE APPLICATION/ IA. NO. 637/2022 FILED BY THE PETITIONER BEFORE THE TRIBUNAL ON 23/07/2022 ``` ``` EXHIBIT P4 ``` ``` A TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER ALONG WITH THE SURVEYOR'S PLAN AS ALSO THE STATEMENT SEEKING ADDITIONAL REMUNERATION DATED 04/01/2024 ``` ``` EXHIBIT P5A TRUE COPY OF THE SAID APPLICATION - IA.NO. 34/2024 IN O.S.(W) NO. 66/2019 DATED 05/01/2024 ``` ``` EXHIBIT P6 ``` ``` A TRUE COPY OF THE ORDER IN IA.NO.34/2024 IN O.S.(W) NO. 66/2019 DATED 06/01/2024 ``` ``` EXHIBIT P7A TRUE COPY OF THE JUDGMENT DISMISSING THE SUIT FOR DEFAULT ON 06/01/2024 ```