IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD. FRIDAY THE TWENTYFIRST DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: THE HONOURABLE SMT. JUSTICE T. MEENA KUMAI. CRP.No. 2823 OF 2009 AND CRP.No.2830 of 2009 Between: Shaik Shakeel Ahmed s/o. late Shaik Ahmed Aged about: 40 years, 0ccupation: Business, R/o.H.No. 5-5-67 Nal Sabgadda, Sangareddy Medak District. … Petitioner V/s. Managing Committee Masjid Deendar Khan at Sangareddy Represented by its President, Mohd. Mujeebuddin, s/o. late Faqruddin, Aged about 50 years, r/o.H.No.5-2-64/1/A Jalbagh, Sangareddy, Medak district and Ors. …. Respondents Counsel for the Revision Petitioner: Mr. P. Vinod Lal Counsel for the Respondent: Mr. Ghulam Hussain THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI CIVIL REVISION PETITION No. 2 8 2 3 OF 2009 A N D CIVIL REVISION PETITION No. 2 8 3 0 OF 2009 COMMON ORDER : CRP.No. 2823 of 2009 is filed by the petitioner-respondent, aggrieved of the order dated 14-5-2009 passed in I.A.No.172 of 2009 in OS.No.58 of 2009 by the learned Chairman-cum-Presiding Officer, A.P. State Wakf Tribunal, City Civil Court, Hyderabad, allowing the application filed under Order-39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure, seeking to grant ad-interim injunction restraining the Respondent No.1, his agents, workmen, associates, labours etc., from interfering in the management and possession of the petitioner-managing committee over the suit Function Hall, Deendar Khan Function Plaza (Shadi khana) in survey No.223/1 in an extent of 4,833 sq.yards situated at Sangareddy, Revenue village Kalvakunta Revenue Mandal, Sangareddy, Medak district. 2. CRP.No. 2830 of 2009 is filed by the petitioner-respondent (plaintiff) against the order dated 14-5-2009 passed in I.A.No. 185 of 2009 in OS.No. 63 of 2009 by the learned Chairman-cum-Presiding Officer, A.P. State Wakf Tribunal, City Civil Court, Hyderabad, dismissing the application filed under Order-39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure seeking to issue injunction against the respondents- defendants, restraining them from causing interference and obstruction in the peaceful and lawful possession and enjoyment of the petitioner-plaintiff over the petition schedule premises till the disposal of the suit. 3. Since common questions of fact and law arise in these two revisions, they are being disposed of by this common order. For the sake of convenience, the parties to these petitions would hereinafter be referred to as they are arrayed in the above Interlocutory applications. 4. The averments made in the affidavit filed in support of I.A.No.172 of 2009 in OS.No. 58 of 2009 are stated as follows: The Managing Committee of Masjid Deendar Khan filed OS.No.58 of 2009 seeking perpetual injunction in respect of shadikhana in survey no. 223/1, Kalvakunta village, Sangareddy. It is stated that the said Mosque is known as Deendar Khan and properties attached to it at Sangareddy including Acs: 8-18 guntas of land in survey no.223/1 is registered and notified wakf. Respondent No.2 constituted the petitioner-committee to manage the mosque and shadikhana and attached properties. The committee’s term was extended subsequently by Proceedings dated 04-7- 2006. It is stated that with the Government funds the said shadikhana was constructed in an extent of Ac:1-00 in sy.no.223/1, which was allotted by the Wakf Board. It is further stated that the possession of shadikhana was handed over to the committee on 13-5-2009. Thereafter, the shadikhana is named as “Deendar Khan Function Plaza” and it is occupying an extent of 4,833 sq.yards with office room, storeroom, kitchen and open place. It is stated that the party conducting function has to bear the charges for supply of articles and decoration items. In order to keep uniformity and smooth running of function hall, the committee resolved on 09-11-2006 to give supply material and decoration items on contract basis for a specific period. It is stated that Respondent No.1 agreed to pay Rs.4,50,000/- in consideration of entering into contract for a period of three years w.e.f. 01- 12-2006 to 01-12-2009. However, Respondent No.1 paid Rs.24,000/- only on 13-12-2006 and agreed to pay balance amount of Rs.4,26,000/- within a period of one month and thereafter agreement will be executed . Respondent No.1 failed to pay the balance amount, for which a letter was addressed on 05-2-2007 by the petitioner committee to Respondent No.1. But Respondent No.1 gave reply dated 14-2-2007 seeking 15 days time to pay the balance. Thereafter, the petitioner committee issued notice dated 28-2-2007 asking Respondent No.1 to pay balance amount, failing which, the agreement will be cancelled. It is stated that the petitioner committee issued legal notice dated 04-4-2007 to the effect that the agreement is cancelled for failure to pay the balance amount. Further it is made clear that Respondent No.1 should pay balance of Rs.19,750/- since the contract was implemented for a period of 3 ½ months and the amount would come to Rs.43,750/- proportionately. Further there is no contract of any nature existing between the petitioner committee and respondent No.1. Hence, Respondent No.1 has no manner of right and title in respect of function hall. It is further stated that the petitioner committee is directly booking the function hall and receiving the hire charges. Further Respondent No.1 is illegally interfering with the possession and enjoyment of petitioner committee over the function hall. It is also alleged that Respondent No.1 is trying to book function hall and collect huge amount from the parties on the pretext of supplying the articles and decoration items. It is further stated that Respondent No.1 is also abusing the watchman of the petitioner committee in filthy language by picking quarrel with him. On 28-3-2009, respondent No.1 along with unsocial elements tried to forcibly keep articles and decoration items in the function hall, for which, the petitioner committee resisted. However, respondent No.1 bent upon to create problems in future. 5. In the counter-affidavit filed by respondent No.1, it is averred that the question of granting interim injunction against tenant in possession of the property does not arise. It is averred that the petitioner falsely alleged that tenancy was cancelled w.e.f. 04-4-2009. It is averred that the petitioner admitted that they received Rs.24,000/- on 13-12-2006 from the respondent and the tenancy was commenced from 14-12-2006. Further the petitioner had taken false plea that the tenancy was in force for a period of 3 ½ months as respondent No.1 failed to pay balance amount of Rs.4,26,000/-. It is averred that the petitioner falsely contended that a notice was issued on 22-2-2008 that respondent No.1 should pay balance amount or else the tenancy agreement will be cancelled. Further it is averred that the petitioner never issued any letters on 05-2-2007, 28-2-2007 and 04-4-2007. It is also averred that the petitioner committee has no right to deny contractual relationship between petitioner and respondent No.1. Respondent No.1 is in lawful possession and enjoyment over the schedule property. It is averred that respondent No.1 admitted that the said function hall is wakf property and petitioner committee was appointed by the Wakf Board and is competent to lease out the schedule property to respondent No.1 spending amount for the development and improvement of the suit property. Further it is averred that the petitioner imposed condition to pay Rs.500/- at least for each function being performed in the shadikhana. It is further averred that there is no lease deed in writing and it is oral. Further there is no question of petitioner committee booking function hall and receiving hire charges. No incident as alleged by the petitioner took place on 28-3-2009. It is stated that respondent No.1 paid Rs.50,000/- on 06-8- 2008, Rs.1,01,000/- on 30-4-2007 to the petitioner under receipts. It is averred that he paid Rs.40,000/- and Rs.10,000/- on two occasions for which the petitioner promised to pass the receipts but not passed. It is averred that as per the terms of lease, respondent No.1 spent Rs.2,25,0009/- initially for the improvement and development of suit property. Thus, Respondent No.1 fulfilled his obligation by paying Rs.2,25,000/- to the petitioner committee and spent equal amount for the development of the schedule property. He is also paying Rs.500/- for each marriage function as agreed. Further it is averred that respondent No.1 spent additional sum of Rs.2,50,000/- at the request of the petitioner. At the time of second phase improvements of shadikhana the petitioner made it clear that earlier payment of Rs.4,50,000/- shall be treated as deposit for the lease hold rights. It is averred that the petitioner argued that the amount spent by respondent No.1 for the second phase improvement to the tune of Rs.2,25,000/- shall be adjusted towards monthly rent for the shadikhana @ Rs.5,000/- per month w.e.f. 01-8-2008. Respondent No.1 shall have to enhance Rs.1000/- thereafter. It is averred that the petitioner committee failed to pay wakf funds as demanded by wakf board. Further respondent No.1 paid Rs.21,500/- as wakf fund through cheque No. 115882, dated 05-7-2007 drawn on HDFC bank, Sangareddy. It is averred that respondent No.1 is maintaining and running function hall and the people are satisfied with the facilities provided by respondent No.1. It is also averred that the petitioner till now deducted Rs.45,000/- w.e.f. 01-8-2008 to 01-4-2009 towards adjustment of Rs.2,50,000/-. The petitioner committee is now trying to occupy the shadikhana so as to manage for personal gains. Further it is averred that respondent No.1 on 04-4-2009 demanded a copy of Audit report of the managing committee for which the petitioner got enraged and threatened to take action against respondent No.1. Anyhow the audit report was not supplied. It is also averred that respondent No.1 apprehends that the petitioner may dispossess respondent No.1 from the schedule property without due process of law. It is further averred that the respondent also filed OS.No. 63 of 2009 against the petitioner. Thus, the prima facie case is in favour of respondent No.1, as he is a tenant and cannot be evicted without due process o law and prayed to dismiss the petition. 6. The averments made in the affidavit filed in support of I.A.No.185 of 2009 in OS.No.63 of 2009 are as follows: It is stated that the petitioner is Respondent No.1 in I.A.No.172 of 2009 in OS.No. 58 of 2009 and filed counter-affidavit in the said I.A. The averments made in the affidavit filed in I.A.No. 185 of 2009 are common in both I.As and therefore it is not necessary to reproduce the same averments again. It is further stated that according to Respondent No.1 he paid Rs.2,25,000/- (Rs.24,000/- on 13-12-2006 and paid Rs.50,000/- on 06- 8-2007, Rs.1,01,000/- on 30-4-2007 and Rs.40,000/- and Rs.10,000/- on two different occasions). It is also stated that in respect of lease, he is paying Rs.500/- for each marriage function, or which receipts are passed by the respondent. Further it is stated that the petitioner spent Rs.2,50,000/- towards second phase improvement w.e.f., 01-8-2008 and the amount was agreed to be adjusted by way of rent @ Rs.5000/- per month w.e.f. 01-8- 2008. But respondent failed to adhere to the terms and conditions of lease. Respondent Nos. 1 and 2 are not paying the Wakf Funds and the petitioner had to pay Rs.21,500/- towards Wakf Funds to Respondent No.3. So far Respondent No.2 deducted Rs.45,000/- covering a period from 01-8-2008 to 01-4-2009 for a period of nine months at the rate of Rs.5000/- per month. Subsequently Respondent No.1 tried to interfere with the possession and enjoyment of the petitioner in respect of schedule property so as to manage himself for his personal gain. It is further stated that the petitioner demanded for the copy of Audit report for which Respondent No.1 got angry and threatened to take action against the petitioner. It is stated that respondent Nos. 1 and 2 are trying to dispossess him without due process of law. 7. In the counter-affidavit filed by Respondent Nos. 1 and 2, it is averred that the averments made in paras 3 to 5 of the petitioner’s affidavit are false and baseless and denied that the petitioner is a tenant of Deendar Khan Function Plaza and that there is no question of any tenancy. It is averred that respondent No.1 never leased out schedule property and there is no documentary proof in this regard. It is further averred that there is no question of delivering possession of schedule property to the petitioner at any point of time. In fact, Respondent No.1 is in physical possession of Shadikhana and looking after and managing the same. Respondent No.2 is holding power to manage the function hall and its attached properties. Further it is averred that the committee is collecting hire charges from the party booking the function hall. It is also averred that the party booking function hall has to bear the charges for supplying articles and decoration items. It is averred that Respondent No.1 conducted auction to award contract of supplying articles and decoration items and the petitioner paid Rs.24,000/- on 13-12-2006 and agreed to pay the balance amount of Rs.4,26,000/- within a period of one month. However, he failed to pay the balance amount. It is averred that the petitioner subsequently paid Rs.1,01,000/- on 30-4-2007 and Rs.50,000/- on 06-8-2007 and thus paid Rs.1,75,000/- in all. The balance amount of Rs.2,75,000/- was agreed to be paid within the days of stipulated time. It is averred that the payment of full amount at the time of entering into contract was condition precedent and respondent No.1 committee never agreed to receive the amounts in piecemeal or in instalments. It is further averred that the petitioner committed breach of contract by not fulfilling his promise and therefore contract stood cancelled. No rent receipts are issued to the petitioner. It is also averred that the respondent denied payment of Rs.40,000/- and Rs.10,000/- by the petitioner. Except the contact o supplying articles and decoration items, there is no other dealing with the petitioner. It is averred that the petitioner is not entitled to meddle with the management of function hall. The parties have to make their own arrangements for supply of articles and decoration items etc. In the context, some parties are approaching the petitioner for supply of articles and decoration items. Further it is averred that the respondent No.1 had already filed suit seeking injunction against the petitioner. The present suit and I.A. are filed by the petitioner as counterblast to the earlier suit. It is further averred that the petitioner has suppressed the material facts and approached the court with unclean hands. It is further averred that the petitioner never spent Rs.2,25,000/- towards improvement and development. The question of adjustments of Rs.2,25,000/- does not arise. There is no question of Rs.4,50,000/- to be received as lease deposit towards tenancy. The shadikhana remains closed most of the time. The petitioner never paid any amount, as wakf fund. Respondents 1 and 2 have no authority to pay the wakf fund. Further the petitioner therefore railed to make out prima facie case for grant of injunction and the balance of convenience is not in favour of the petitioner and prayed to dismiss the same. 8. In view of the rival contentions raised by both the parties, the trial court framed the following points for consideration: (1) Whether the petitioner in I.A.No. 172 of 2009 is entitled for temporary injunction as prayed for ? (2) Whether the petitioner in I.A.No. 185 of2009 is entitled for temporary injunction as prayed ? 9. To substantiate the contentions raised by the petitioner, the petitioner in I.A.No. 172 of 2009 marked Exs.A1 to A8 on his behalf. Exs.B1 to B56 were marked on behalf of respondent in I.A.No. 172 of 2009 in OS.No. 58 of 2009. 10. On appreciation of the facts and circumstances and the documentary evidence exhibited by both the parties, the learned trial Judge passed common order and allowed I.A.No. 172 of 2009 by granting temporary injunction as prayed for against respondent No.1 only restraining him from interfering with possession and management of petitioner- committee and whereas dismissed I.A.No. 185 of 2009 filed by respondent No.1 in I.A.No.172 of 2009 (petitioner herein) against respondent Nos. 1 to 3. 11. Aggrieved by the same, the respondent in I.A.No. 172 of 2009 in OS.No.58 of 2009 filed C.R.P.No. 2823 of 2009 and the petitioner in I.A.No.185 of 2009 in OS.No. 63 of 2009 filed C.R.P.No. 2830 of 2009. 12. Sri P. Vinod Lal, the counsel representing the Revision Petitioner in both the civil revision petitions seek to contend that the revision petitioner is holding possession of function hall as a tenant of respondent-committee but the trial court erred to grant the relief under order 39, Rule 1 and 2 of CPC by ignoring the issue of holding possession by the revision petitioner on the date of filing of the suit and went on wrong premise of induction into possession of function hall. Further the trial court did not appreciate the contents of Ex.A5, dated 05-2-2007, Ex.A8 legal notice dated 04-4-2007 and Ex.A7 notice dated 28-2-2007 which reflects the contract between the revision petitioner and the respondent-committee was lease. Ex.B10 dated 13-12-2006 goes to show the delivery of possession to the revision petitioner by the respondent committee. Exs.B16, B17, B18, B19, B21 and B56 reflects that the Government authorities such as Police Department, Fire Department and Wakf Board are corresponding with the revision petitioner, as he was in possession of function hall and further communication between the revision petitioner and the Government authorities. Ex.B20 dated 10-12-2007 reflects that Inspector of Audit Wakf Medak district addressed a letter to the respondent committee to allot the land to revision petitioner for parking which make it clear that the authorities recognized the revision petitioner as tenant in possession. He further contended that the trial court failed to declare the contract is violative of Rule 13 of AP Wakf Rules 20000. When the respondent committed failed to prove that they are in possession of function hall by producing the documentary evidence, the trial court ought not to have granted interim injunction against the revision petitioner even though when he produced electricity bills and other documents to prove his possession as tenant- lease holder. He also filed documentary proof of a letter of Inspector Audit Wakf dated 05-5-2009 addressed to the Chief Executive Officer, AP State Wakf Board, Haj House, Nampally, Hyderabad, confirming the possession of function hall in favour of revision petitioner and also the detail accounts of expenditure inspected by Wakf Inspector Audit dated 11-8-2007 amounting to Rs.3,42,601-50 and dated 02-4-2007 amounting to Rs.36,322-00 but the same were not marked due to communication gap between the trial court counsel and the revision petitioner. 13. Sri Ghulam Hussain, the counsel representing the respondent- managing committee vehemently denied the contentions raised by the counsel for the revision petitioner and sought to contend that there is no documentary evidence to show that the revision petitioner was inducted as a tenant but the receipts filed by the revision petitioner would go to show that the receipts have passed for Rs.500/- to perform the marriage in the function hall. Further the revision petitioner failed to show that there was any agreement between the respondent committee and the revision petitioner to adjust Rs.2,25,000/- which was spent by him for the development of shadikhana towards monthly rent of Rs.5000/-. He further contended that the revision petitioner failed to pay amounts as agreed for entering into the contract to supply marriage articles. The trial court after having taken into consideration the entire facts and circumstances and the documentary evidence produced by both the parties have rightly concluded that the revision petitioner failed to establish prima facie case and the balance of convenience lies in favour of the respondent-managing committee. There are no reasonable grounds to interfere with the impugned order. 14. Heard the learned counsel for the revision petitioner as well as the learned counsel for the respondent-managing committee and perused the impugned order. 15. Though several grounds are sought to be urged, I am not inclined to advert to the same as I propose to dismiss these revisions on merits but on the aspect of contending that due to communication gap between the revision petitioner and his counsel certain documentary evidence such as letter of Inspector, Audit, Wakf, dated 05-5-2009 addressed to the Chief Executive Officer, AP State Wakf Board, Hyderabad confirming the possession of function hall in favour of revision petitioner and also the details of accounts of expenditure inspected by Wakf Inspector, Audit, dated 11-8-2007 amounting to Rs.3,42,601-50 paise dated 02-4-2007 amounting to Rs.36,322/- were not filed before the trial court, this Court cannot cure such defects at the stage of revision. In fact, the first respondent is in physical possession of Shadikhana and looking after and managing the same and whereas second respondent is holding power to manage the function hall and its attached properties. The managing committee is collecting hire charges from the party, who is booking the function hall and that party has to bear the charges for supplying articles and decoration items. Though the first respondent conducted auction to award contract of supplying articles and decoration items and the petitioner paid Rs.24,000/- on 13-12-1996 and agreed to pay the balance amount of Rs.4,26,000/- within one month but he did not pay the balance amount. The petitioner subsequently paid Rs.1,01,000/- on 30-4-2007 and Rs.50,000/- on 06-8-2007 and in all he paid Rs.1,75,000/- and the balance amount of Rs.2,75,000/- was agreed to be paid within stipulated time. But the payment of full amount at the time of entering into contract was condition precedent and it appears that the first respondent committee never agreed to receive the amount in piecemeal or instalments. When the petitioner committed breach of contract by not fulfilling his obligation then the contract stood cancelled. The managing committee denied payment of Rs.40,000/- and Rs.10,000/- and that except contract of supplying articles and decoration items, there is no other dealing with the petitioner. Further the managing committee denied that the petitioner never spent Rs.2,25,000/- towards improvement and development and therefore the question of adjustment of Rs.2,25,000/- does not arise and so also there is no question of Rs.4,50,000/- to be received as lease deposit towards tenancy. Under the above circumstances, even before this Court, there is no document to support the contentions raised by the petitioner. In the absence of any such documentary evidence, it has to be observed that the findings arrived by the trial court merits no interference. 16. In the result, CRP.No. 2823 of 2009 and CRP.No.2830 of 2009 are accordingly dismissed at the stage of admission. In the circumstances, there shall be no order as to costs. ____________________________ JUSTICE T. MEENA KUMARI. 21-08-2009. I s L.