IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 7942 of 2005(U) ----------------------------------- AGAINST THE ORDER IN IA.78/2005 IN OS.234/2003 of MUNSIFF COURT, VADAKARA . .................... PETITIONER(S): ---------------------- C.MAHMOOD, S/O.KUNHI ASSAN, AGED 63 YEARS, R/A. ANSAR, CUSTOMS ROAD, VADAKARA AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. THE CAUSE TITLE IS AMENDED AS FOLLOWS AS PER ORDER IN IA. 4085/05 DTD. 16.3.05. KERALA NADVATHUL MUJAHIDEEN VATAKARA, SHAKHA COMMITTEE REP.BY ITS SECRETARY, C.MAHMOOD, 62 YEARS, SON OF KUNHI ASSAN, ''ANSAR'', CUSTOMS ROAD, VATAKARA, VADAKARA TALUK. BY ADV. MR.M.P.MOHAMMED ASLAM RESPONDENT(S): ------------------------- V.ASHRAF, S/O.ABOOBACKER, GLASS EMPORIUM, VADAKARA AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS.MR.C.KHALID MR.N.GOPINATHA PANICKER MR.R.O.MUHAMED SHEMEEM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C0 NO.7942/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. 234/03 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, VADAKARA DT. NIL. P2:- COPY OF THE WRITTENS TATEMENT FILED BY THE RESPONDENT IN OS.234/03 BEFORE THE MUNSIFF'S COURT, VADAKARA DTD. NIL TO THE PETITIONER AND DTD. FEBRUARY 2004. P3:- COPY OF THE LETTER ISSUED BY THE SECRETARY, WAKF BOARD, ERNAKULAM TO THE PETITIONER AND DTD. 3.1.1978. P4:- COPY OF THE ORDER OF ASSESSMENT OF CONTRIBUTION PASSED BY THE SENION SUPERINTENDENT, KERALA WAKF BOARD, DTD. 13.6.02. P5:- COPY OF THE COUNTER AFFIDAVIT IN IA.78/05 IN OS.234.03 FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT, VADAKARA DTD. 11.2.05. P6:- COPY OF THE ORDER OF THE MUNSIFF'S COURT, VADAKARA IN IA.78/05 IN OS.234/03 DTD. 14.1.05. P7;- COPY OF THE AFFIDAVIT FILED THE RESPONDENT IN IA.398/05 BEFORE THE MUNSIFF'S COURT, VADAKARA IN IA.78/05 IN OS.234/03 DTD. 28.2.05. P9:- COPY OF THE DOCUMENT EXECUTED BY THE PETITIONER IN FAVOUR OF MR.ABDURAHIMAN, PRESIDENT OF KERALA NADVATHUL MUJAHIDEEN, VADAKARA SHAKHA COMMITTEE DTD. 20.9.1973. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.(C) No.7942 OF 2005 -------------------------------- Dated this the 1st day of March 2010 JUDGMENT Petitioner is the plaintiff in O.S No.234 of 2003 on the file of Munsiff Court, Wadakkanchery. The above suit was one for perpetual prohibitory injunction, and the respondent is the defendant. Plaintiff is styled as one of the branches of a society which is stated to be administering the affairs and functions of a Masjid namely "Masjidul Mujahideen". Suit was laid imputing allegations against the defendant who is stated to be interfering with the administration of the above said Masjidul Mujahideen to restrain him by a decree of perpetual prohibitory injunction. The defendant resisted the suit filing a written statement traversing the allegations raised in the plaint. Later, the petitioner/plaintiff moved an application for withdrawal of the suit with liberty to file a fresh suit on the same cause of action stating that the subject matter involved in the suit being a wakf property, the civil court has no jurisdiction to entertain the suit. The application for withdrawal seeking the permission to file a fresh suit was resisted by the defendant filing objections. The learned Munsiff after hearing both sides dismissed the application for withdrawal vide Ext.P6 order. Propriety and correctness of that order is challenged in the revision. W.P.(C) NO.7942 OF 2005 Page numbers 2. I heard the counsel on both sides. Inviting my attention to Section 85 of the Wakf Act 1995, it is contended that the civil court has no jurisdiction to entertain the suit relating to a wakf and so much so, the petition filed by the petitioner/plaintiff for withdrawal of the suit which involved a wakf with liberty to file a fresh suit should have been allowed by the court below. The Masjidul Mujahideen is stated to be a wakf recognised by the Kerala Wakf Board. Suit has been laid to restrain the defendant from administering the affairs of the above said wakf. When the interest of that wakf is shown to be involved in the suit, the bar under Section 85 of the Wakf Act squarely applies to the facts of the case. When that be so, the question emerges for consideration whether withdrawal of the suit with liberty to file a fresh suit as sought for by the plaintiff deserve to be granted or not. In examining that question, it has to be stated that when the civil court has no jurisdiction to entertain this suit, it is not a question of withdrawal for filing of a fresh suit, but, one of entertaining the suit over which its jurisdiction is barred. So far as the withdrawal of the suit is concerned, no permission from the court is required in cases of this nature where the decree is sought for a prohibitory injunction against the defendant. Of course in cases where a claim of set off is involved or suits are filed in representative capacity on mere asking of the plaintiff, no withdrawal can be permitted. When W.P.(C) NO.7942 OF 2005 Page numbers withdrawal is sought for in other cases , the concern of the court can be only of awarding cost for the injury caused to the opposite party as its formal order for withdrawal is unnecessary. However, liberty to file a fresh suit, no doubt, depends upon the permission to be accorded by the court subject to satisfaction of the grounds thereof. But, when withdrawal is sought for on the ground that the court has no jurisdiction to entertain the suit, the question of filing the fresh suit with liberty does not arise. Where it is not having jurisdiction to entertain the suit it cannot pass any order granting liberty to file a fresh suit on the same cause of action. Once the court finds it has no jurisdiction, the plaintiff will have to be left to his remedy to have other recourse under law, if any, for redressal of his grievance. In a case where withdrawal is sought for on the ground that the court has no jurisdiction to entertain the suit, the order that can be passed by the court. Ext.P6 order is set aside and the suit filed by the plaintiff shall be treated as withdrawn. No further order is required on the question of liberty sought for by the plaintiff in the facts of the case as the plaintiff has to work out his remedies in accordance with law. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE