IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 OP(C).No. 3235 of 2011() ------------------------ PETITIONER -------------------- T.V. ABDUL MAJEED,S/O.ABOOBACKER, PRESIDENT, ALOO PALLI COMMITTEE, CHEPPILAT HOUSE, NEAR MAYICHANKUNNU, VALAPATTANAM, KANNUR DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT(S): ------------------------ 1. KALLINGAL MUSTHAFA, S/O.IBRAHIM, AGED 64 YEARS, KORAMBATHPUTHIYA PURAYIL, NEAR MINI ESTATE P.O., VALAPATTANAM, KANNUR-670 010. 2. NOUSHAD A, AGED 38 YEARS, S/O.KUNHIMOIDEEN, AMBALATHINAKATH , VALAPATTANAM P.O., KANNUR-670 010. 3. MUSTAFA T.B, AGED 65 YEARS, S/O.KUNHIMOIDEEN, HAFIYA MANZIL, MAYICHANKUNNU, VALAPATTANAM P.O., KANNUR-670 010. 4. FAHAD M, AGED 25 YEARS, S/O.HASHIM K.P., SEENAS, THANGAL VAYAL, VALAPATTANAM P.O., KANNUR-670 010. 5. T.V.ASHRAF, AGED 45 YEARS, S/O.KUNHIKUTTALI, T.V.HOUSE, THURUTHILAKATH PACHIKANTEAVIDE, NEAR JUMA MASJID, VALAPATTANAM P.O., KANNUR-670 010. 6. ABDURAHIMAN K.C.K, AGED 34 YEARS, S/O.C.P.MUHAMMED KUNHI,BUSHRA MANZIL, VALAPATTANAM P.O., KANNUR-670 010. R1, 2, 4, 5 ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 3235 of 2011() ----------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS -------------------------------------- EXT.P1. COPY OF THE PLAINT IN O.S. NO. 2/2010 BEFORE WAKF TRIBUNAL,KOZHIKODE. EXT.P2. COPY OF THE UNDER TAKEN FILED BY THE PETITIONER BEFORE THE WAKF TRIBUNAL, KOZHIKODE. EXT.P3. COPY OF THE AFFIDAVIT AND PETITION FILED BY HE INJUNCTION UNDER ORDER 39 RULE 1 OF CIVIL PROCEEDURE CODE. EXT.P4. COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENTS UNDER ORDER VII RULE 10 (A) OF THE CPC. EXT.P5. COPY OF THE DOCKET PROCEEDINGS OF THE CASE IN O.S. NO.578/2010 EXT.P6. COPY OF THE PERMISSION ISSUED BY KERALA STATE WAKF BOARD , REGIONAL OFFICE, KOZHIKODE. EXT.P7. COPY OF THE PERMIT ISSUED BY THE VALAPATTNAM GRAMA PANCHAYAT DATED 31.3.2010 EXT.P8 COPY OF THE COUNTER STATEMENT FILED BY PETITIONER ALONG WITH DEFENDANT NO.3. RESPONDENT'S EXHIBITS : NIL ------------------------------------ / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3235 of 2011 --------------------------------------- Dated this 17th day of October, 2011 JUDGMENT Petitioner is the second defendant in O.S.No.578 of 2010 of the Court of learned Munsiff, Kannur. Respondents filed the suit in the Wakf Tribunal, Kozhikode. Respondents also filed an application for temporary injunction against petitioner and the third defendant demolishing the 'Niskara Palli'. Petitioner and third defendant filed Ext.P2, affidavit before the Wakf Tribunal and undertook that they will not demolish the building without obtaining permission from the Wakf Board and in the manner stated in Ext.P2, affidavit. On the strength of that affidavit the application for injunction was closed. Later, the plaint was returned (or transferred as the case may be) by the Wakf Tribunal for presentation before the learned Munsiff, Kannur in view of the decision in Ramesh Gobindram Vs. Sugra Humayun Mirza Wakf (2010(3) KLT 862(SC)). Respondents/plaintiffs requested the learned Munsiff to return the plaint for presentation in the Wakf Tribunal, Kozhikode in view of the later decision of the Supreme Court in Board of Wakf Vs. Anis Satma Beegum (2010(4) KLT 765(SC)). O.P(C).No.3235 of 2011 -: 2 :- Respondents also filed an application for temporary injunction against demolition of the building in question. Learned Munsiff granted interim injunction till disposal of the suit. The said order is under challenge. 2. It is pointed out by learned counsel for petitioner that learned Munsiff has passed the order of injunction at a time when the application for return of the plaint for presentation in the Wakf Tribunal was pending. It is also submitted that learned Munsiff has passed order under Rule 10 of Order VII of the Code of Civil Procedure (for short, "the Code”) and that the application under Rule 10A(2) of Order VII of the Code is pending. In the circumstance, learned Munsiff could not have passed an order on the application for injunction until disposal of the suit. 3. Learned counsel for respondents submits that Ext.P2, undertaking was made before the Wakf Tribunal where the suit was originally filed that petitioner and the third defendant will not demolish the building in the manner undertaken in Ext.P2. Learned counsel submits that if the plaint is returned vacating all interim orders including the undertaking, it is possible that petitioner and third defendant might demolish the building before the plaint is re-presented before the Wakf Tribunal and O.P(C).No.3235 of 2011 -: 3 :- appropriate orders are obtained. It is therefore prayed that until the Wakf Tribunal passed appropriate order, the undertaking made may remain in force. On the said submission, I have heard learned counsel for petitioner as well. 4. When learned Munsiff returns the plaint for presentation before the Wakf Tribunal, it is necessary that all interim orders/undertakings are vacated. For, a Court which has no jurisdiction cannot pass any such interim order. 5. But, that does not preclude this Court from directing that petitioner and third defendant shall comply with the undertaking they have made in Ext.P2. Resultantly this original petition is disposed of as follows: (i) Learned Munsiff, Kannur shall vacate all orders passed on interlocutory applications and undertakings made before him while returning the plaint for presentation before the Wakf Tribunal under Rule 10A(2) of Order VII of the Code. (ii) It is directed that until petitioner and/or third defendant produced Ext.P6, order before the Wakf Tribunal and the Wakf Tribunal passed appropriate orders in the matter of undertaking which petitioner and third defendant have made, they shall not demolish the building in question. O.P(C).No.3235 of 2011 -: 4 :- (iii) Wakf Tribunal, if it entertains the plaint, shall pass appropriate orders on the application for injunction if any preferred, on its merit untrammelled by any observation contained in this judgment. (THOMAS P JOSEPH, JUDGE) Sbna/-