P.P. Abdulla v. C.K. Abdurahiman and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935 ## **CRP(WAKF).No. 166 of 2013 (A)** AGAINST THE COMMON ORDER IN I.A.NO.605 OF 2011 AND I.A.NO.606/2011 IN O.S.NO.56 OF 2007 PASSED BY THE WAKF TRIBUNAL, KOZHIKODE, DATED 11.1.2012. ## **REVISION PETITIONER/PETITIONER/4TH DEFENDANT:** P.P.ABDULLA, AGED 61 YEARS S/O.MUHAMMADUNNI, PUTHANKOTTUPURTHAN PURAKKAL MURAMBATHY P.O., NELLIPPOYIL AMSOM, DESOM KODENCHERY (VIA), KOZHIKODE. BY ADVS.M/S.K.M.FIROZ AND M.SHAJNA ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1. C.K.ABDURAHIMAN, AGED 52 YEARS S/O.KUNHOTHI, CHOKKAYIL HOUSE PRESIDENT MURAMBATHY JUMA-ATH PALLI MAHALLU COMMITTEE, MURAMBATHY P.O., NELLIPPOYIL AMSOM, DESOM, KODENCHERY (VIA), KOZHIKODE-673009. 2. ARUVEETTIL HUSSAIN - S/O.MOIDEEN, GENERAL SECRETARY MURAMBATHY JUMA-ATH PALLI MAHALLU COMMITTEE MURAMBATHY P.O., NELLIPPOYIL AMSOM, DESOM KODENCHERY (VIA), KOZHIKODE-673009. 3. ABU, S/O.ABDULLA, VALAKKUNDIL, MURAMBATHY P.O. NELLIPPOYIL AMSOM, DESOM, KODENCHERY (VIA) KOZHIKODE-673009. 4. C.M.MOIDEEN, S/O.MUHAMMED, NETTAMTHODIKA, MURAMBATHY P.O., NELLIPPOYIL AMSOM, DESOM, KODENCHERY (VIA), KOZHIKODE - 673 009. 5. SAINUDHEEN, S/O.ALI, ARAKKAL, MURAMBATHY P.O. NELLIPPOYIL AMSOM, DESOM, KODENCHERY (VIA) KOZHIKODE-673009. 6. THE KERALA WAKF BOARD OFFICE OF THE KERALA WAKF BOARD NEAR JAWAHARLAL NEHRU INTERNATIONAL STADIUM, KALOOR ERNAKULAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 682 017.. R2 BY ADV. SRI.R.RAMADAS(CAVEATOR) SRI.K.SHIBILI NAHA, STANDING COUNSEL FOR WAKF BOARD THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 29.10.2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------C.R.P.(Wakf) NO.166 OF 2013 A ---------------------------------------------------Dated this the 29[th] day of October, 2013** ## **O R D E R** ## **K.T.Sankaran, J.** The revision petitioner is the fourth defendant in O.S.No.56 of 2007 on the file of the Wakf Tribunal, Kozhikode. The suit was filed by respondents 1 and 2 for a permanent prohibitory injunction. In the suit, the plaintiffs filed an application for temporary injunction. It is submitted by the counsel on either side that the court below granted only an order of status quo. The plaintiffs challenged that order before this Court in C.R.P.No.92 of 2008. The petitioner was the fourth respondent in that Revision. The respondents in C.R.P.No.92 of 2008 submitted before this Court that the suit itself was listed for trial. Recording that submission, a Division Bench of this Court disposed of C.R.P.No.92 of 2008 directing the Wakf Tribunal to dispose of the suit within two months. ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 2 :: 2. The Wakf Tribunal took up the case on 31.3.2010. On that date, the revision petitioner (defendant No.4) was absent. His counsel was also absent. The other defendants in the case were also absent. The Wakf Tribunal passed an exparte decree on 31.3.2010. 3. The revision petitioner (defendant No.4) filed I.A.Nos.605 of 2011 and 606 of 2011 before the Wakf Tribunal to set aside the exparte decree and to condone the delay of sixteen months and fifteen days in filing the application to set aside the exparte decree. Defendants 1 and 2 also filed applications (I.A.Nos.603 of 2011 and 604 of 2011) before the Wakf Tribunal to set aside the exparte decree after condoning the delay of sixteen months and forty six days. The Wakf Tribunal dismissed all the applications mentioned above. 4. In this Revision, the revision petitioner challenges the order in I.A.Nos.605 of 2011 and 606 of 2011. Defendants 1 and 2, who ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 3 :: filed similar applications before the Wakf Tribunal, have not challenged the order passed by the Tribunal. 5. The revision petitioner contended before the Wakf Tribunal that he was laid up and he could not contact his counsel. The revision petitioner also contended that his counsel was under the impression that the Wakf Tribunal would not take up the case for trial since C.R.P.No.92 of 2008 was pending before the High Court. The Wakf Tribunal held that the revision petitioner failed to substantiate the contention that he was laid up and therefore he could not appear before the Tribunal. The contention that his counsel was under the impression that the Wakf Tribunal would not take up the case since C.R.P.No.92 of 2008 was pending, appears to be untrue because by that time, C.R.P.No.92 of 2008 was disposed of. 6. The revision petitioner, who was a party in C.R.P.No.92 of 2008, submitted before the High Court that the suit was listed for trial and therefore, it was not necessary to dispose of the revision on the merits. C.R.P.No.92 of 2008 was against the order in the ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 4 :: Interlocutory Application for temporary injunction and, therefore, there was no question of granting a stay of the proceedings before the Wakf Tribunal. The revision petitioner very well knew that the suit was listed for trial. 7. The learned counsel for the revision petitioner submitted that the disposal of the revision was not made known to the revision petitioner and he was not aware of the proceedings. Such a contention was not apparently put forward before the Tribunal. Even assuming that it was correct, when the court below passed an exparte decree on 31.3.2010, the counsel for the revision petitioner was appearing, as per records. Knowledge of the counsel is the knowledge of the revision petitioner. He could have very well filed an application to set aside the exparte decree within time. In that context, the explanation made by the petitioner is that he was laid up. The court below found that this contention was not substantiated by any acceptable evidence. 8. Anticipating that the fourth defendant/revision petitioner ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 5 :: would file a revision, the plaintiffs had filed Caveat No.212 of 2013 before this Court on 18.2.2013. Notice of the Caveat was sent to the revision petitioner. Still, he did not file any revision till 5.4.2013. By that time, 359 days have elapsed after the period of ninety days from the date of the order of the Wakf Tribunal. It is true that no time limit is prescribed in the Wakf Act for filing a revision. Therefore, the petitioner is technically right in contending that it is not necessary to file an application for condonation of the delay of 359 days in filing the revision. However, it is clear that even after the plaintiffs filed the Caveat before the High Court, the fourth defendant did not care to file a revision. 9. Learned counsel for respondents 1 and 2 (plaintiffs) brought to our notice that the revision petitioner filed a counter statement in E.P.No.3 of 2012 on 21.12.2012 stating that he had filed an appeal before the High Court challenging the order passed by the Wakf Tribunal. That statement is clearly untrue since the revision was filed only on 5.4.2013. ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 6 :: 10. For the aforesaid reasons, we are convinced that no grounds are made out by the revision petitioner to condone the delay in filing the application for setting aside the exparte decree. We are also convinced that the revision petitioner has not come before Court with clean hands and he made untrue averments before the executing court that he had already filed an appeal before the High Court challenging the order impugned, while, in fact, he filed the revision only about four months thereafter. It is true that a liberal approach should be taken in the matter of dealing with an application for condonation of delay as held in **Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others (AIR 1998 SC 2276).** At the same time, it is also well settled that when a party approaches the Court with untrue averments and when it is proved that he was negligent all through out in conducting the proceedings, the Court should not lend its helping hand to such a party. In **P.K.Ramachandran v. State of Kerala and another (AIR 1988 SC 2276)** , the Supreme Court held that “law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to ## **C.R.P.(Wakf) NO.166 OF 2013 A** :: 7 :: extend the period of limitation on equitable grounds”. It was also held by the Supreme Court in several cases that the Court must be satisfied that sufficient grounds have been made out for condoning the delay. In the present case, no such grounds have been made out by the revision petitioner. The Wakf Tribunal was right in dismissing the application. For the aforesaid reasons, the Civil Revision Petition is dismissed. No roder as to costs. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/