S.M.A. Karim Foundation, Quilon & Muthavalli K.A. Kabeer (2nd appellant, substituted as A. Sainul Abdeen) v. Noorudeen and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 ``` ``` CMA NO.228OF 2002 ``` ``` AGAINST THE ORDER DATED 10.07.2002 IN I.A.NO.1180 OF 2001 IN O.S.NO.210/1990 OF THE ADDITIONAL SUB COURT, KOLLAM ``` ``` APPELLANTS/CR.PETITIONER 1 & 2/PLAINTIFFS: ``` - **`1 S.M.A.KARIM FOUNDATION, QUILON, REPRESENTED BY ITS PRESENT PRINCIPAL MUTHAVALLI, K.A.KABEER, S/O. KUNJIMOIDEEN KUNJU, SULTANA, VADAKKEVILA P.O., KOLLAM.`** - **`2 PRINCIPAL MUTHAVALLI K.A.KABEER, S/O. KUNJIMOIDEEN KUNJU, SULTANA, VADAKKEVILA P.O., KOLLAM. NAME OF PRINCIPAL MUTHAVALLI K.A.KABEER, (2ND APPELLANT) SUBSTITUTED AS A.SAINUL ABDEEN,AGED 69 YEARS,S/O.AYDROSE KUNJU,PUTHENVEEDU,THAZHAMEL, KOOTTAMOOLA,ALAYAMON,ANCHAL, KOLLAM AS PER ORDER DATED 01/07/2010 IN I.A.2196/2010.`** ``` BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU ``` ## **`RESPONDENTS/PETITIONER & COUNTER PETITIONERS 3 TO`** ## **`9/DEFENDANTS:`** - **`*1 S.NOORUDEEN, PARIK VIEW, KOTTAKKAKOM WARD, KOLLAM. (DIED)`** - **`2 RAMASWAMY REDDIAR THIRU VENKITA REDDIAR, KUMARABHAVANAM, VADAYATTUKOTTA, KOLLAM`** - **`3 M.SARASWATHY AMMA, MEERA COFFEE CENTRE, CHAMAKKADA, KOLLAM`** - **`*4 NEELAKANTA PILLAI CHIDAMBARAM, SHEEBA STONES, CHAMAKKADA, KOLLAM (NAME OF THE 4[TH] RESPONDENT IS DELTED FROM THE ARRAY OF PARTIES AT THE RISK OF`** 2 C.M.A.No.228 of 2002 ``` APPELLANTS VIDE ORDER DATED 11.07.2007 IN I.A.NO.2481 OF 2007 ``` - **`5 Y.K.ALIYARUKUNJU, LOTTERY MERCHANT, CHAMAKKADA, KOLLAM`** - **`6 N.E.PALANISWAMI GOUNDER, GOUNDER TRADERS, BIG BAZAR, KOLLAM`** - **`7 G.SIVADASA VALIGAN, GANESH TRADERS, PAIKKADA ROAD, KOLLAM`** - **`8 THE KERALA WAKF BOARD, ERNAKULAM, REPRESENTED BY ITS SECRETARY, PARAMARA ROAD, ERNAKULAM, KOCHI 18`** - **`*ADDL.9 N.NAZARUDEEN, S/O.NORUDEEN, RETIRED DEPUTY CHIEF ENGINEER, 15[TH] JYOTHIS NAGAR, ALTHATRAMOOD, KOLLAM 13`** - **`*ADDL.*10 N.ANVARUDEEN, S/O.NURUDEEN, DOOR NO.26/378(45/1509) PARK VIEW, OPP.TO GANAPATHY TEMPLE, CURZON NAGAR, CUTCHERY WARD, KOLLAM-13.`** - **`*ADDL.*11 ARIFA KARIM, THAZHACHAYIL VEEDU, CHAVARA BRIDGE P.O., CHAVARA ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED 1[ST] RESPONDENT VIDE ORDER DATED 24.05.2007 IN I.A.NO.412/2007`** ``` BY ADVS.SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.K.A.SALIL NARAYANAN SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD SRI.A.A.ABUL HASSAN, SC, WAKF BOARD SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD ``` ``` SRI JAMSHED HAFEEZ- SC ``` ``` THIS CIVIL MISC. APPEAL HAVING COME UP FOR ADMISSION ``` ``` ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 C.M.A.No.228 of 2002 ## **JUDGMENT** ## Anil K. Narendran, J. The appellants are the plaintiffs in O.S.No.210 of 1990 on the file of the Additional Sub Court, Kollam, which was one filed mainly seeking a declaration that half of the plaint schedule property belongs to the 1[st] plaintiff; for partition of the plaint schedule property between the plaintiff and the 1[st] defendant; and for other consequential reliefs. The plaintiffs filed I.A.No.996 of 2001 for return of the plaint for proper presentation before the Wakf Tribunal, Kollam, in view of the bar under Section 85 of the Wakf Act, as the civil court has no jurisdiction to entertain O.S.No.210 of 1990. I.A.No.996 of 2001 was allowed by the order dated 24.03.2001. Seeking review of that order, the 1[st] respondent-1[st] defendant filed I.A.No.1180 of 2001, by contending that since the existence of a valid Wakf is under challenge, the Wakf Tribunal has no jurisdiction to try and decide that question involved in the suit. It was also contended that, as the suit was pending when the Wakf Act, 1995, came into force, the jurisdiction to decide the question is vested on the civil court itself and the suit is not liable to be transferred to the Wakf Tribunal. In I.A.No.1180 of 2001, the Additional Sub Court passed the impugned order dated 10.07.2002, whereby that 4 C.M.A.No.228 of 2002 interlocutory application was allowed by reviewing the earlier order dated 24.03.2001 directing return of plaint and the office was directed to take back the plaint and post the case for steps, if any. Feeling aggrieved, the appellants are before this Court in this appeal, invoking the provisions under Order XLIII Rule 1(w) of the Code of Civil Procedure, 1908. 2. On 14.12.2002, when this appeal came up for admission, this Court issued notice to the respondents. During the pendency of this appeal, the 1[st] respondent died, and his legal representatives were impleaded as additional respondents 9 to 11 by the order dated 24.05.2007 in I.A.No.412 of 2007. The name of the 4[th] respondent was deleted from the party array, vide order dated 11.07.2007 in I.A.No.2481 of 2007. 3. Heard the learned counsel for the appellants, the learned counsel for the 8[th] respondent and the learned counsel for respondents 9 to 11. 4. The issue that arises for consideration in this appeal is as to whether the impugned order dated 10.07.2002 of the Additional Sub Court in I.A.No.1180 of 2001, whereby the said court reviewed its earlier order dated 24.03.2001 directing return of plaint for presentation before the Wakf Tribunal can be sustained in law. 5 C.M.A.No.228 of 2002 5. During the course of arguments, the learned counsel for the appellants would point out the law laid down by the Apex Court in **Rashid Wali Beg v. Farid Pindari [(2022) 4 SCC 414]** . 6. In **Rashid Wali Beg [(2022) 4 SCC 414]** the Apex Court noticed that it is not as though there was no provision in the Waqf Act, 1995 conferring jurisdiction upon the Tribunal in respect of the waqf property. Section 83 of the Act has two limbs. The first concerns the determination of any dispute, question or other matter relating to a waqf and the second, concerns the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal. On the facts of the case on hand, the Apex Court noticed that, though the proceedings out of which the said appeal arises, were instituted before the Amendment Act, the words "any dispute, question or other matter relating to a waqf or waqf property” are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why **Ramesh Gobindram v. Sugra Humayun Mirza Waqf [(2010) 8 SCC 726]** was sought to be 6 C.M.A.No.228 of 2002 distinguished both in **W.B. Waqf Board v. Anis Fatma Begum [(2010) 14 SCC 588]** and **Punjab Wakf Board v. Pritpal Singh [2013 SCC OnLine 1345]** and such distinction was taken note of in **Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji [(2014) 16 SCC 65]** Additionally, the Apex Court in **Kiran Devi v. Bihar State Sunni Wakf Board [(2021) 15 SCC 15]** , refused to apply the ratio of **Ramesh Gobindram [(2010) 8 SCC 726]** , on the ground that the suit was originally instituted before the civil court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through **Ramesh Gobindram** . It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) of the Act even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore, to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1). In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a civil court and shall 7 C.M.A.No.228 of 2002 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. In **Mohideen v. Ramanathapura** **Peria Mogallam Jamath [(2010) 13 SCC 62]** it was held that the Waqf Tribunal will have the power to issue temporary injunctions under Order XXXIX, Rule 1 of the Code of Civil Procedure. Section 83(1) of the Act provides for the determination of any dispute, question or any other matter, (i) relating to a waqf and (ii) relating to a waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1) of the Act, to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a waqf property. 7. In view of the law laid down by the Apex Court in **Rashid Wali Beg [(2022) 4 SCC 414]** the impugned order dated 10.07.2022 of the Additional Sub Court, Kollam in I.A.No.1180 of 2001 in O.S.No.210 of 1990 cannot be sustained in law. In the result, this appeal is allowed by setting aside the order dated 10.07.2022 of the Additional Sub Court, Kollam in I.A.No.1180 of 2001 in O.S.No.210 of 1990, thereby restoring the order dated 24.03.2001 of the said court in I.A.No.996 of 8 C.M.A.No.228 of 2002 2001, whereby the Sub Court ordered return of the plaint for presenting the same before the Wakf Tribunal, Kollam (presently Wakf Tribunal, Kozhikode). Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/14/8