IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 WP(C).No. 17386 of 2010(O) -------------------------- IA NO.213/2010 IN OS.22/2010 of SUB COURT, THIRUVALLA .................... PETITIONER(S): --------------- 1. NIRANAM MUSLIM, DEENAR PALLI JAMA ATH, REGISTRATION NO.130/2009, NIRANAM NORTH P.O.,REPRSENTED BY ITS SECRETARY, SIDDQUE,NIRANAM NORTH P.O.,KADAPPANA VILLAGE, THIRUVALLA TALUK. 2. P.A.AMEEN SAKKAPHY, AGED 32 YEARS, NIRANAM MUSLIM DEENAR PALLI JAMA ATH, NIRANAM NORTH P.O.,KADAPPANA VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT(S): --------------- ABDUL AZEEZ,S/O.ABDUL KHADER, BUSINESS, NIRANAM VADAKKUM BHAGAM MURI,KADPPANA VILLAGE,THIRUVALLA TALUK. ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.17386 of 2010 -------------------------------------- Dated this the 9th day of June, 2010. JUDGMENT On the allegations that petitioner No.1 is a society registered under the provisions of the Societies Registration Act, it is governed by its bye-law and that petitioner No.2 who was appointed as Imam of the Mosque run by petitioner No.1 on 21.06.2003 at a time when there was no bye-law for petitioner No.1 governing its affairs and that on account of that peculiar situation petitioner No.2 continued to function as Imam even beyond the period of one year but, in view of the approved bye-law by petitioner No.1, petitioner No.2 could not continue as Imam exceeding the period of one year which period has already expired but he is unauthorisedly continuing as Imam of the Mosque, respondent who is a member of petitioner No.1 filed O.S.No.22 of 2010 in the court of learned Sub Judge, Thiruvalla seeking a decree for injunction restraining petitioner No.1 from permitting petitioner No.2 to carry out any function as Imam. That suit was resisted by the petitioners contending inter alia that it is barred under Section 85 of the Wakf Act (for short, “the Act”) since the dispute is a matter coming within the jurisdiction of Wakf Board and at any rate, the dispute is to be resolved by the Wakf Board (for short, “the Board”). Learned Sub Judge heard the application for temporary injunction (I.A.N.213 of 2010) and held that prima facie, contention of petitioners that the suit is barred under Section 85 of the Act cannot be sustained, continuance of petitioner No.2 as Imam is against bye-law WP(C) No.17386/2010 2 approved by petitioner No.1 and accordingly granted temporary injunction as prayed for. Without taking recourse to the statutory remedy if aggrieved by the said order petitioners have approached this Court seeking invocation of Article 227 of the Constitution contending that order under challenge is per se illegal in that civil court had no jurisdiction to entertain the suit on account of bar created by Section 85 of the Act. Along with Writ Petition, petitioners produced two documents which according to learned counsel would show that petitioner No.1 is a Wakf registered with the Board as provided under the Act and hence suit is not maintainable. Learned counsel contended that finding of learned Sub Judge that in the absence of evidence of dedication of property for pious, religious or charitable purposes, petitioner No.1 is not a Wakf is quite illegal. Reliance is placed on decisions in Madeena Masjid v. Kerala Jama Ath Islami Hind (2007 (3) KLT 800), Muhammed Kunju M.A. v. Biju and others (2008 (2) KHC 404 (DB)) and Radhey Shyam and another v. Chhabi Nath and others ((2009) 5SCC 616). Per contra, learned counsel for respondent asserted contentions raised before learned Sub Judge that petitioner No.1 is only a society registered under the Societies Registration Act, no question of dedication of property did arise and hence no Wakf is created. According to the learned counsel this Court may not exercise jurisdiction under Article 227 of the Constitution when petitioners have a statutory remedy under Order 43 Rule 1 of the Code of Civil Procedure (for short, “the Code”). Learned counsel placed reliance on the decisions in WP(C) No.17386/2010 3 A.Venkatasubbiah Naidu v. S.Chellappan and others ((2000) 7 SCC 695) and Haji P.Laikath Alikhan v. Unneenkutty Saquafi (2005 (4) KLT SN.43 (Case No.57)). 2. No doubt this Court is not without power to interfere in exercise of its supervisory power under Article 227 of the Constitution with an order passed by a subordinate court in appropriate circumstances. But when disputed facts are involved it is not proper for the High Court to interfere. In such situations the parties should settle the dispute in the regular forum. Here, averments in the plaint are to the effect that petitioner No.1 is a registered society while that is denied by petitioners. Contention of petitioners that petitioner No.1 is a Wakf is resisted by the respondents. Documents now pressed into service by the petitioners (Exts.P1 and P2) were not produced before the learned Sub Judge and hence, learned Sub Judge had no occasion or opportunity to consider the said documents. Nor did respondent get an opportunity to challenge the said documents or, contend that notwithstanding the said documents his assertion in the plaint that petitioner No.1 is only a society registered and governed by the Societies Registration Act and its bye-law is sustainable. In Haji P.Laikath Alikhan v. Unneenkutty Saquafi (supra) it has been held by this Court that dedication of movable or immovable property is essential to constitute a Wakf under Section 3(r) of the Act. Therefore crucial question for consideration is whether petitioner No.1 is a Wakf as contended by petitioners or, is only a WP(C) No.17386/2010 4 society registered under the Societies Registration Act as claimed by respondent. Since that disputed fact is glaring and has to be settled by regular forum I do not think it proper to exercise the power under Article 227 of the Constitution. In view of that I hold that the appropriate remedy open to petitioners is to challenge maintainability of the suit before learned Sub Judge as provided under law or, if they are aggrieved by the impugned order to file Civil Miscellaneous appeal before the appropriate forum and challenge correctness of the impugned order. Resultantly without prejudice to the right of petitioners to move appropriate forum as provided under law, this Writ Petition is closed. THOMAS P.JOSEPH, Judge. cks