IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRP.No. 379 of 2009() ------------------------------ AGAINST THE ORDER DATED 25/03/2009 IN IA 847/2008 IN OS.50/2008 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): PETITIONERS/PLAINTIFFS ----------------------------------------------------------------------- 1. VELLAKKADAN MUHAMMED HAJI, S/O.KUNHI BEERAN, PERUVALLUR AMSOM AND DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. ILLIKKADAN ALAVIKUTTY, S/O.MAMMUTTY HAJI, KANNAMANGALAM AMSOM AND DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAMADAS RESPONDENT(S): RESPONDENTS:DEFENDANTS ---------------------------------------------------------------------- 1. KANNAMANGALAM WEST KARATTALUNGAL HIDAYATHUL ANAM SANGHAM, A SOCIETY REGD. UNDER THE PROVISIONS OF THE SOCIETIES REGN. ACT AND REP. BY ITS SECRETARY, C.P.MUHAMMED MASTER. 2. C.P.MUHAMMED MASTER, SECRETARY, KANNAMANGALAM WEST KARATTALUNGAL HIDAYATHUL ANAM SANGHAM, S/O.KUNHI POCKER, AGED ABOUT 52 YEARS, RESIDING AT PERUVALLUR AMSOM AND DESOM OF TIRURANGADI TALUK, MALAPPURAM. 3. P.P.ALAVIKUTTY HAJI, PRESIDENT, KANNAMANGALAM WEST KARATTALUNGAL HIDAYATHUL AMSOM SANGHAM, S/O.MOIDEEN, AGED ABOUT 75 YEARS, RESIDING AT KANNAMANGALAM AMSOM AND DESOM OF TIRURANGADI TALUK, MALAPPURAM DISTRICT. 4. NEYYAN MUHAMMEDKUTTY HAJI, S/O.MAYINKUTTY, AGED ABOUT 58 YEARS, RESIDING AT DO. DO. CRP NO.379/2009 -2- 5. EDAYATT SULAIMAN MUSALIYAR, S/O.AHAMMED, AGED ABOUT 59 YEARS, RESIDING AT DO. DO. DO. 6. CHAKKIPARAMBAN MOIDEENKUTTY HAJI, S/O.AHAMMEDKUTTY, AGED ABOUT 54 YEARS, RESIDING AT PERUVALLUR AMSOM AND KEERANALLUR DESOM OF TIRURANGADI TALUK, MALAPPURAM DISTRICT. 7. THE KERALA WAKF BOARD, ERNAKULAM, REP. BY CHIEF EXECUTIVE OFFICER. R1, R2, R5, R6 BY ADV.SRI.HARISH R.MENON. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ C.R.P.No.379 of 2009-B ---------------------------------------------- Dated, this the 23rd day of July, 2009 O R D E R K.M.Joseph, J. This Civil Revision Petition is filed against the order of the Wakf Tribunal, Kozhikode dated 25.3.2009 in I.A.No.847/2008 which was an application filed under Order 39 Rules 1 and 2 read with Sec.151 C.P.C. The suit was one for declaration, injunction and for mandatory injunction. The application for ad interim order was for restraining respondents 1 to 5 and other office bearers and successors of office from allowing or permitting the 6th respondent from using any portion of the mosque for providing grave yard or burying dead bodies and also restraining the 6th respondent from providing graves and burying dead bodies inside the mosque situated in the plaint schedule property. 2. The Wakf Tribunal has by the impugned order partly allowed the application and restrained the respondents from proceeding with the construction/finishing work of the CRP 379/2009 -2- portion of the building projecting above ABCD marked in Ext.C2 plan till the disposal of the suit, reserving liberty, however, to complete the construction of the remaining portion of the mosque building. 3. We heard Sri.R.Ramadas, learned counsel appearing for the petitioner and also Sri.Harish R.Menon, learned counsel appearing for respondents 1, 2 , 5 and 6. As far as respondents 3 and 4 are concerned notice has been taken out on them by special messenger and they stands served. According to the learned counsel for the petitioner, before the Tribunal they had filed written statement supporting the petitioner and naturally they will be supporting the contention of the petitioner in this revision petition also. 4. The complaint of the petitioner is that though there was a comprehensive interim prayer which included the relief against burial, the Tribunal has not considered the said aspect at all. After going through the order it seems to be clear that the petitioner is justified in making the said submission. Sri. Harish R.Menon learned counsel for the respondents also does not dispute that there is no CRP 379/2009 -3- consideration of the aspect relating to burial. When an application for interim relief is filed it is the duty of the Court/Tribunal to apply its mind and consider the matter necessarily with reference to the materials produced. This has not been done in this case. In so far as the relief relates to interim injunction against burial, according to the learned counsel for the petitioner if burial is effected it will cause irreparable injury to the petitioner. We feel that the impugned order in so far as it does not consider the interim prayer of the petitioner seeking injunction against burial cannot be sustained. We allow the Civil Revision Petition and direct the Tribunal to consider the application seeking injunction against burial. We make it clear, however, that the fact that we allowed the revision petition should not be understood as meaning that we had made any pronouncement as regards the merits of the petitioner's claim for interim injunction against burial and the said question will be decided on merits. We are not interfering with the order as it stands. We also make it clear that pending consideration of the application it is open to the petitioner to move the Wakf Tribunal seeking CRP 379/2009 -4- injunction against burial till the disposal of the petition. 5. The parties shall appear before the Tribunal on 28.7.2009. Send back the records to the Tribunal immediately. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS