IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 CRP.No. 227 of 2009() --------------------- AGAINST THE ORDER DATED 17/01/2009 IN IA 314/2008 IN WOA.9/2008 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): APPLICANT/RESPONDENT -------------------------- MOHAMMED HASHIM ISMAIL SAIT @ IQBAL SAIT MUTAWALLI, HAJI USMAN HAI ALLA-RIKIYA AND AYOOB ABDUL RAHMAN TRUST, SILATTUPARAMBU, MATTANCHERRY, ERNAKULAM. BY ADV. SRI.H.HAMSA RAWTHER SRI.V.K.PEERMOHAMED KHAN RESPONDENT(S): RESPONDENTS/WAKF BOARD AND PETITIONER --------------------- 1. THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, KOCHI-17. 2. H.M.SHAMSHAD, HOUSE NO.41/885, PULLEPPADI, CHITTOOR ROAD, ERNAKULAM-18. BY ADV. SRI.ESM.KABEER FOR R2 BY ADV.M/S. SRI.P.A.ABDUL JABBAR SRI.A.S.ANILKUMAR (VANCHIMALA) FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- C.R.P.No. 227 of 2009 ------------------------------- Dated this the 15th September, 2009 O R D E R Raman, J. Revision Petitioner who was the Muthavally of Haji All-Rukhiya and Ayoob Haji Abdul Rahman Trust, Mattancherry, was removed by an order passed by the Wakf Board, on various grounds under Section 64 of the Wakf Act (hereinafter referred to as 'the Act' for short). He preferred an appeal as W.O.A.3 of 2005 before the Wakf Tribunal, Ernakulam, seeking to set aside that portion of the order removing him from Muthavally under Section 64 (1) (g) and (i) of the Act, which is specifically appealable under Section 64(4) of the Act. But, as he was also ordered to be removed on grounds under Section 64(1) (j) and (k) of the Act, which is not specifically appealable under Section 64(4), he preferred a writ petition before this Court, W.P.(C) No.13204 of 2005, against that portion of the order which is not appealable. That writ petition was ultimately withdrawn without C.R.P.No.227 of 2009 2 prejudice to his rights to challenge the same before the appropriate forum, in accordance with law. Thereafter, he preferred the present W.O.A.No.9/2008 under Section 83(2) of the Act. It is also submitted that the revision petitioner had also filed a writ petition, W.P.(C) No.5037 of 2005, challenging the unlawful activity of the Wakf Board, and at the first instance, this Court passed an interim order restraining the first respondent as also the revision petitioner from entering into the premise of the Wakf Board, later disposed of the writ petition with a direction to file appeal against the impugned order. 2. The question that arose for consideration is as to whether the delay of 1370 days occasioned due to the pendency of the writ petition is excludable under Section 14 of the Limitation Act. 3. The Tribunal, after elaborately considering the point, held that in so far as this Court did not find that it has no jurisdiction, but merely granted permission as sought for, to seek other remedies. It thought, in the circumstances, the C.R.P.No.227 of 2009 3 delay is not liable to be excluded. Accordingly, the application was dismissed as belated, after refusing to condone the delay, in exercise of power under Section 14 of the Limitation Act. Hence, this revision. 4. Heard both sides. The short question now arise for consideration is as to whether in the factual situation, the period during which the matter was pending before this Court in W.P.(C) No. 13204 of 2005 and W.P.(C) No.5037 of 2005, is excludable under Section 14 of the Limitation Act. 5. As per Section 14 of the Limitation Act, in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court, which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. In the case at hand, the proceedings now initiated by filing C.R.P.No.227 of 2009 4 W.O.A.No.9 of 2008 relates to the same matter which was in issue in earlier writ petition is beyond dispute. Then, the next question is as to whether the revision petitioner prosecuted the writ petition in good faith. 6. Admittedly, he was removed from the post of Muthavally by the Wakf Board on several grounds under Section 64 of the Act, some of which are appealable and some of which are not appealable. As against the grounds on which he was removed and specifically appealable, he has already preferred an appeal as W.O.A.No.3 of 2005. Therefore, he has rightly chosen to challenge the order by invoking ordinary remedy available to him under law, viz., under Section 64(4) of the Act, that too, within time. But, since the grounds under Section 64(1)(j) and (k), on which also he was removed is not specifically appealable, he thought of filing a writ petition before this Court. Needless to say that Writ Petition under Article 226 of this Court is a discretionary remedy which this Court may or may not exercise. In view of the above position, he though fit to seek withdrawal of C.R.P.No.227 of 2009 5 the said writ petition, with liberty to move the matter before the appropriate forum. Permission was also granted by this Court. Therefore, these conduct will clearly show that he was prosecuting the matter diligently and in good faith. 7. True, the last limb of Section 14 of the Limitation Act, which says that the earlier proceeding should have been in a form of defective jurisdiction or other cause of like nature and which is unable to entertain it, and it may not be a case of 'defective jurisdiction', but the 'other cause of like nature' is wide enough to take care of the situation in the present case. 8. The fact that this Court has permitted him to invoke other remedies available under Law and the order passed with the opposite party in the party array, and this Court having granted permission as sought for, is sufficient to hold that in the like situation, the period of delay has to be excluded under Section 14 of the Limitation Act. The period during which the writ petition was prosecuted also falls within the ambit of this C.R.P.No.227 of 2009 6 Court, as held by this Court in Kerala State Civil Supplies Corporation Ltd. v. M.G.M.Transport (ILR 2005 (1) Kerala 232) In such circumstances, we allow this revision petition. The impugned order is set aside and the period during which the matter was pending before this Court in W.P.(C) Nos.5037 & 13204 of 2005 shall stand excluded. The Tribunal shall take back the file and dispose of the same, in accordance with law. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.