IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.31526/2017(GM-WAKF) Between:
Sri.Abdul Wajid S/o Md.Kaseem, Aged about 61 years, R/at.Shankanipura Village, Kasaba Hobli, Hosakote Taluk, Bengaluru Rural District.
... Petitioner (By Sri.K.H.Somashekar, Adv.) And:
1. M/s. Jumma Masjid (Charminar) Jamate Ahle Hadees, Kumabar pet, Hoskote, Bengaluru District.
Mr.Fiyaz Ahmed, S/o Mod. H.K.Habeeb Aged about 43 years, Anjaneya Temple street, Hoskote.
2. Sri.Abdul Jabbar, alias Anwar Pasha, S/o.Late Abdul Raheem, Grand son of late.Abdul Razak, Aged major.
3. Sri.Abdul Bakhee, S/o Late.Abdul Razak, Aged major, Respondents 2 and 3 are residing at No.32, Lal Masjid, Commercial street “A” street, Bengaluru-560 001.
4. The Chief Executive officer, Karnataka State Board of Wakfs No.6, Cunningham Road, Bengaluru-560 001.
5. The Chairman, District Wakf advisory Committee, Bengaluru Rural District, Hazarath Hameed Shah Complex, Cubbon Pet, Bengaluru-560 002.
(By Sri.V.Raviprakash, Adv. for R1; Sri.Syed Suhail Ali, Adv.for R4; R5 is served but unrepresented;
... Respondents Vide order dated 23.01.2019, notice to R2 and R3 is dispensed with) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the Judgment and Decree dated 13.03.2017 passed in O.S. No.4/2005 by the Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru vide Annexure-A, etc.
This Writ Petition coming on for Preliminary Hearing in B Group this day, the Court made the following:
ORDER The petitioner has filed the present writ petition to quash the Judgment and Decree dated 13.03.2017 made in O.S. No.4 of 2005 passed by the Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru (for short, 'the Tribunal').
2. It is the case of the petitioner that he is the absolute owner in occupation of the land bearing Survey No.159 measuring 1 acre 28 guntas situated at Amanidoddakere Village, Hosakote Taluk, Bengaluru Rural District, purchased by him under registered sale deed dated 15.01.2005 from respondent Nos.2 and 3. In pursuance of the registered sale deed, all revenue entries were mutated in the name of the petitioner.
3. The 1st respondent, Jumma Masjid filed O.S. No.4/2005 before the Tribunal for permanent injunction against respondent Nos.2 to 5 on 16.04.2005 without making the petitioner as one of the defendants though the plaintiff was aware of the fact that petitioner is the owner in possession of property in question. The respondent Nos.2 and 3 were placed ex-parte before the Tribunal. On behalf of the defendant No.4 an undertaking was given to file power. Defendants did not file written statement but contested the matter. The Tribunal by the Judgment and Decree dated 06.12.2007 passed an ex-parte decree. Aggrieved by the said order, petitioner / defendant No.5 filed RFA No.607/2009 before this Court along with an application to grant permission to prosecute such appeal. This Court, after hearing both parties, by its Order dated 03.12.2010 rejected the appeal as not maintainable in view of the provision of sub-clause (9) of Section 83 of the Wakf Act, 1985, reserving liberty to the petitioner to take such recourse as available under law.
4. Accordingly, the petitioner filed W.P. No.
39290/2010 before this Court. This Court, after hearing both the parties, by the Order dated 19.07.2013, set aside the Judgment and Decree passed in O.S. No.4/2005 and remanded the matter to the Tribunal and directed the plaintiff to implead proper and necessary parties and thereafter proceed with the matter in accordance with law. After remand, the plaintiff filed application for impleadment of the present petitioner which came to be allowed on 28.04.2015, but no notice was issued. The paper publication taken out was accepted and on 10.01.2017, notice to defendant Nos.1 and 5 was held sufficient. Ultimately, impugned Judgment and Decree was passed by the Tribunal on 13.03.2017. Hence, the present writ petition is filed.
5. I have heard the learned counsel for the parties.
6. Sri K.H. Somashekar, learned counsel for the petitioner contended with vehemence that the impugned Judgment and Decree passed by the Tribunal is in utter violation of principles of natural justice and contrary to the direction issued by this Court made in W.P.
No.39290/2010 dated 19.07.2013. He further contended that though the plaintiff filed application for impleading which came to be allowed on 28.04.2015, the matter was posted on several dates for taking steps, but, the plaintiff has not taken any steps, ultimately the present petitioner who is defendant No.5 and defendant Nos.1 and 2 were placed ex-parte.
7. The entire order sheet in O.S. No.4/2005 produced by the petitioner clearly depicts that no notice was served to defendant No.5 / the present petitioner. In the absence of any notice or steps in respect of defendant Nos.1 and 5 by the plaintiff, taking further steps under Order 5 Rule 20 of CPC would not arise. The Tribunal proceeded to pass erroneous Judgment contrary to the provisions of CPC and contrary to material on record. Therefore he sought to allow the writ petition.
8. Per contra, learned counsel for the plaintiff sought to justify the impugned Judgment and Decree.
9. Having heard learned counsel for the parties, it is undisputed fact that the petitioner is claiming that he is the owner of the property in question purchased under registered sale deed dated 15.01.2005. It is also not in dispute that the first respondent who is the plaintiff before the Tribunal filed O.S. No.4/2005 for permanent injunction against respondent Nos.2 to 5 in the year 2005 in respect of property in question without impleading the petitioner. Ultimately the Tribunal proceeded to pass impugned Judgment and Decree on 06.12.2007 which was subject matter of appeal before this Court in RFA No.607/2009 by the present petitioner along with application seeking permission to file such appeal. The appeal came to be rejected on 03.12.2010 with liberty to the petitioner to avail remedy in accordance with law.
10. It is also not in dispute that in pursuance of the Judgment & Decree passed by this Court made in RFA No.607/2009, petitioner filed W.P.No.39290/2010 before this Court and this Court, after hearing both parties, on 19.07.2013 disposed of the petition and recorded a categorical finding at para 5 & 6 of the order as under:
“5. Having considered the contentions putforth, what is necessary to be noticed is that the sale deed which had been marked as Ex-P11 (Annexure-B to the instant petition) would disclose that the same has been executed by the defendants No.1 and 2 in O.S.No.4/2005 in favour of the petitioner herein on 15.01.2005. It is seen that the suit was instituted on 16.04.2005. As on the said date, the sale deed which had been executed was subsisting in favour of the petitioner in respect of the very same suit schedule property. It is also contended that pursuant to the sale deed being executed, the revenue entries had also been changed in favour of the petitioner. If this aspect of the matter is kept in view, as on the date of institution of the suit itself, the defendants No.1 and 2 had lost interest in the property and therefore the petitioner could not have instituted the suit against the persons who had lost interest in the property by alleging interference by them and seeking injunction against them when the petitioner was claiming to be the owner.
6. Even assuming for a moment that the defendants had any contention to putforth with regard to the validity or otherwise of the sale deed and the entries in the records, the same could have been assailed only after impleading the petitioner herein in the said suit and thereafter ask for appropriate reliefs instead of filing a suit for bare injunction against the persons who have admittedly lost interest in the property as on the date of filing the suit. Therefore, if these aspects are kept in view, the judgment and decree passed in O.S.No.4/2005 on 06.12.2007 is against the person who has lost interest in the property, but to indirectly effect the rights of the petitioner herein. Therefore, I am of the opinion that the judgment and decree is liable to be set aside. Accordingly, the same is set aside. The matter is remitted to the Tribunal to restore O.S.No.4/2005 on record, permit the plaintiffs to implead the proper and necessary parties and thereafter proceed with the matter in accordance with law. ”
This Court ultimately set aside the Judgment and Decree of the Tribunal and remanded the matter for fresh consideration permitting the plaintiff to implead proper and necessary parties.
11. It is also undisputed fact that the order of remand made by the Court has reached finality and after remand the plaintiff filed the application under Order 1 Rule 10(2) of CPC before the Tribunal to implead the present petitioner. The Tribunal by an order dated 28.04.2015 allowed the application filed to implead the present petitioner as 5th defendant. The Order Sheet dated 08.11.2016 maintained by the Tribunal clearly depicts that the suit summons sent to defendant No.1 is not reached and no order passed with respect to him. Similarly suit summons was not sent to defendant No.5 after he was impleaded. Hence, plaintiff was directed to take steps for defendant Nos.1 and 5 by 24.11.2016. On 24.11.2016 it was shown that again steps to defendant Nos.1 and 5 was not taken and hence, matter was adjourned to 26.11.2016. Again it was shown that steps for defendant Nos.1 and 5 was not taken. Though plaintiff has not taken any steps to issue summons to defendant No.5 as per normal procedure contemplated under CPC, the plaintiff filed application I.A.8 under Order 5 Rule 20 of CPC which came to be allowed. Ultimately the present petitioner was placed ex-parte along with defendant Nos.1 and 2, and Tribunal proceeded to pass the impugned Judgment and Decree on 13.03.2017.
12. The Order sheet maintained by the Tribunal clearly depicts that after allowing the application for impleadment filed by the plaintiff on 28.04.2015, plaintiff has not taken any steps in respect of issuance of summons to defendant Nos.1 and 5 and ultimately filed application for paper publication. Unfortunately said application was allowed by the Tribunal ignoring the fact that plaintiff has not taken any steps to issue summons. Without issuing suit summons to defendant No.5 / present petitioner, question of allowing the application for paper publication does not arise. The said aspect of the matter has not at all been considered by the Tribunal before passing the impugned order.
13. The finding recorded by the Tribunal to place the petitioner – defendant No.5 ex-parte is erroneous and contrary to material on record and contrary to the direction issued by this Court. Therefore the impugned Judgment and Decree cannot be sustained and matter requires re- consideration by the Tribunal.
14. For the reasons stated above, writ petition is allowed. Impugned Judgment and Decree dated 13.03.2017 passed in O.S.No.4/2005 on the file of Karnataka Wakf Tribunal, Bengaluru is hereby quashed. The matter is remanded to the Wakf Tribunal for fresh consideration. The petitioner and the first respondent – plaintiff shall appear before the Tribunal on 20.06.2019. The Tribunal shall proceed with the suit after issuing notice to the other defendants and after following the procedure as contemplated and pass appropriate Judgment and Decree in accordance with law.
Ordered accordingly.
Sd/- JUDGE sac*