1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.120/2008 AND CIVIL REVISION APPLICATION NO.139/2008 -------------------------------------------------------------------- Mohd.Ismail s/o Babulal Shaikh Age 47 years, Occ-Mutawalli and Hakeem, R/o Dargah Gulab Shah And Tasteer Ali Shah, Budhwar Peth Tq.Akkalkot, Dist.Sholapur. .. PETITIONER [ORIG.PLAINTIFF] VS 1. Mohd.Hanif s/o Abbas Ali Birajdar Age 60 years, Occ-Pensioner R/o Dargah Gulab Shah and Tasteer Ali Shah, Budhwar Peth, Tq.Akkalkot, District Sholapur. 2. Maharashtra State Board of Wakf Panchakki, Aurangabad, through its Chief Executive Officer. .. RESPONDENTS [ORIG.DEFTS.] 2 .... CIVIL REVISION APPLICATION NO.139/2008 -------------------------------------------------------------- Mohd.Hanif s/o Abbas Ali Birajdar Age 60 years, Occ-Pensioner, R/o Dargah Gulab Shah and Tasteer Ali Shah, Budhwar Peth Akkalkot, Dist.Sholapur. .. PETITIONER [ORIG.DEFT.] Vs 1. Mohd.Ismail s/o Babulal Shaikh Age-45 years, Occ-Mutawalli and Hakim, R/o Dargah Gulab Shah & Tasteer Ali Shah, Budhwar Peth Tq.Akkalkot Dist.Sholapur. 2. Maharashtra State Board Wakf through its Chief Executive Officer, Panchakki, Aurangabad. .. RESPONDENTS .... Shri S.S.Kazi,Adv.for Petitioner in CRA.No.120/08 Shri Mujtaba,Adv.for R.1 and for applicant in C.R.A.139/08 3 Shri J.R.Shaikh,Adv.for R.2 for in C.R.A.No.139/08. .... CORAM : R.K.DESHPANDE,J. DATE :04/11/2009 ORAL JUDGMENT: 1] Notices in Civil Revision Application No.120/2008 were issued on 22/9/2008. All the parties are before this Court and the learned counsel appearing for respective parties agree that the matter needs to be decided finally at the stage of admission. Hence, Admit. Respective counsel appearing for the parties waive service of notice. The matters are heard finally by consent of parties. 2] Both these Civil Revision Applications challenge the common order dated 4/7/2008 passed below Exhs.45 and 52 in Suit No.73/07 by the learned Presiding Officer, Wakf Tribunal, Aurangabad. C.R.A.No.120/08 had been filed by the original plaintiff,whereas C.R.A.No.139/08 has been filed by the original defendant no.1. 4 3] By the impugned order, the Tribunal rejected the application Exh. 52 filed by the plaintiff for grant of injunction and also rejected the application Exh.45 filed by the defendant no.1 for grant of injunction. The Tribunal has held that both the parties have failed to make out a prima facie case for grant of injunction and therefore, made an interim arrangement for performance of Urs celebration, which was to be held during the period from 6/7/08 to 8/7/08,and appointed the deft.no.2 Wakf Board through its Chief Executive Officer, Panchakki, Aurangabad with the help of local residents. In C.R.A.No.120/08, this Court passed an order on 22/9/2008 directing the parties to maintain the staus quo as on that date. It is not disputed that the plaintiff/ applicant in C.R.A.No. 120/08 has performed the Urs ceremony which was held during 6/7/2008 to 8/7/2008 as the Wakf Board failed to appoint any person pursuant to the order dated 4/7/2008. 4] Heard learned counsel for respective parties. I have gone through the order impugned in both these Civil Revision Applications. Shri S.S.Kazi, learned counsel for applicant has relied upon the registration of the Darga, which is at Exh.A, the order dated 23/12/05 at Exh.B passed by the Maharashtra State Board of Wakfs and the 5 order dated 21/6/2006 passed by the said Board which is at Exh.D. According to him, as per all these 3 documents, he was performing the religious ceremonies. As against this, Shri Mujtaba, learned counsel for the applicant in C.R.A.No.139/08 has urged that the applicant was claiming right on the basis of General Power of Attorney executed by daughter of late Ibrahim Master. The rival parties have also claimed that they have been performing the religious ceremonies. 5] Although in the order of the Tribunal, there is some reference to the orders passed by the Presiding Officer of the Wakf Board in para 11, its effect has not been considered. Similarly,contention of the deft.no.1 on the basis of the power of attorney has also not been considered. Thus, the impugned order seems to have been passed in ignorance of the vital aspects, on the issue of grant of injunction. The order, as I find suffers from material irregularities which calls for interference by this Court in exercise of its revisional jurisdiction. May be that it is a matter of evidence to establish the rival pleadings,but that does not deter the Court from examining the prima case, put forth by the parties. The Court has to record the findings on the basis of the material on the aspects viz. the prima facie case, the balance of convenience and the irreparable loss. In view of this, the matter will 6 have to go back to the Tribunal for considering the applications at Exh. 45 and 52 afresh. The tribunal shall take into consideration all the documents and material placed on record by the rival parties to establish their prima-facie case. 6] In view of above, the common order dated 4/7/2008 passed below Exh.45 and 52 in Suit No.73/07 by the Presiding Officer, Wakf Tribunal, Aurangabad, is quashed and set aside and the Tribunal is directed to decide the applications at Exh.45 and 52 in the light of the observations made above, afresh, after hearing the rival parties. 7] Shri Kazi, learned counsel for the applicant orig.plaintiff has urged that by virtue of the order of status quo granted by this Court on 22/9/08, applicant has been performing the religious ceremonies. In view of this, he shall continue to perform the religious ceremonies till the decision on Exhs.45 and 52. He shall keep the accounts of the funds, if any received and submit it before the Wakf Board. The Tribunal shall decide the application within a period of two months from today. Needless to say that the defendant no.1 shall not interfere in the functioning of the plaintiff. However, the passing of an interim order by this Court on 22/9/08 or its continuation by this order as an interim 7 arrangement, shall not influence the mind of the Presiding Officer of the Tribunal, while considering the applications at Exhs.45 and 52. Thus, both Civil Revision Applications are allowed with no order as to costs. Authenticated copy is allowed to the parties, to act upon. [R.K.DESHPANDE] JUDGE umg/cra120-08