IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 FAO.No. 80 of 2010() ------------------------------- (AGAINST THE ORDER DATED 21/01/2010 IN I.A.NO.3852 OF 2009 IN AS.NO.136 OF 2009 OF SUB COURT, TIRUR IN O.S.NO.171 OF 2007 OF MUNSIFF COURT, PARAPPANANGADI) ....... APPELLANTS/RESPONDENTS IN I.A.AND RESPONDENTS IN APPEAL/DEFENDANTS IN THE SUIT: ----------------------------------------------------- 1. K.P.ABDUL JABBAR, S/O.AHAMMEDKUTTY MUSALIYAR, AGED 59 YEARS, PARANTHODI, CHENAKKALANGADI, THENHIPALAM AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. T.P.MUHAMMED HAJI ALIAS CHINNAKKUTTY HAJI, S/O.IMBICHIKOYA, AGED 62 YEARS, MANGATTU HOSUE, AREEPARA, CHENAKKALANGADI, MALAPPURAM DISTRICT. 3. P.K.FAISAL, S/O.K.T.MUHAMMED MASTER, AGED 37 YEARS, KURUKKANKANDATHIL HOUSE, CHENAKKALANGADI, MALAPPURAM DISTRICT. 4. ANWAR T.P., S/O.LATE IMBICHIKOYA, AGED 37 YEARS, THEKKORADTH HOUSE, KOLATTODU, CHENAKKALANGADI, MALAPPURAM DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. MR. FIROZ K.M. RESPONDENT(S): PETITIONER IN I.A. AND APPELLANT IN APPEAL / PLAINTIFF IN THE SUIT: --------------------------------------- K.MUSTHAFA, S/O.MAMMED, AGED 37 YEARS, MUTTAYIL THODI, CHENNAKKALANGADI, MALAPPURAM DISTRICT. BY ADV. MR. B.G.BHASKAR BY ADV. MR.R.O.MUHAMED SHEMEEM(CAVEATOR) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1162/2010 IN F.A.O.NO.80/2010 DISMISSED 24/03/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 80 OF 2010 = = = = = = = = = = = = = = = Dated this the 24th day of March, 2010. J U D G M E N T This appeal is preferred against the order in Interlocutory Application No.3852/09 in A.S.136/09 pending before the Subordinate Judge, Tirur. A suit was filed by the plaintiff for a declaration that the Hussain Madavoor Group in the Sakha is entitled to manage the affairs of the Sakha till the final disposal of the litigation pending between the Society and the defendants etc. 2. It is submitted that there was an order of temporary injunction granted by the Munsiff which was set aside by the Sub Court and on a Writ Petition the High Court restored the order of the Munsiff and directed the suit to be disposed of. The defendants had denied the rights of the plaintiff. They had denied any right regarding the control or management and they had taken a specific contention that the properties are covered by two Wakf deeds which are F.A.O. 80 OF 2010 -:2:- marked as Exts.B2 and B3 and therefore would raise a contention that since the property involved in the dispute is a wakf property and when there is a dispute regarding the same the appropriate forum is a Wakf Tribunal constituted under the Wakf Act and not a civil Court. 3. The trial judge while considering the case held that the civil Court has no jurisdiction and had also entered into some other finding regarding the merits. If a Court is to find that it has no jurisdiction then further probing into the merits of the case is not really expected. But I do not want to say anything on that at this stage. 4. Now aggrieved by the decision of the learned Munsiff the plaintiff filed an appeal before the Subordinate Judge, Tirur and moved an application for injunction. The learned Subordinate Judge considered what had transpired during the pendency of the suit before trial and took the view that the status quo has to be preserved and therefore in that angle granted an order of injunction. 5. The learned senior counsel for the appellant would contend before me that when there is a decision rendered by a competent Court of jurisdiction on merits whereby it had F.A.O. 80 OF 2010 -:3:- declined any relief to the plaintiff then going back to the pre- disposal stage could never be proper. I do not want to express anything on those things because of the course which I am going to adopt in this case. 6. Now the crucial question which requires determination is whether the property is a Wakf property and if so whether a civil Court has got any jurisdiction to entertain when there is a dispute regarding the wakf property. It is also contended that the question whether it is a wakf property or not is also a matter which can be adjudicated only by the wakf Tribunal and no further form. Any finding entered into on that question at this interlocutory stage would virtually decide the fate of the appeal and therefore I feel the most appropriate method is to direct the appeal to be disposed of. 7. The learned counsel for the appellant contends before me that his clients have got reservation in the matter being heard by the Subordinate Judge, Tirur. It is true that transfer of an appeal cannot be done as a routine matter as it will affect the credit of the system. But at the same time in order to safeguard the interest of the Presiding Officer also F.A.O. 80 OF 2010 -:4:- in some cases it may be necessary to effect a transfer so that unnecessary embarrassment can be avoided to that Presiding Officer also. So in this case I am intending to transfer the case with the sole object of avoiding embarrassment to the Subordinate Judge, Tirur. Therefore the FAO is disposed of with a direction to the Subordinate Judge, Tirur to transfer the case and its records to the Subordinate Judge, Manjeri and the Subordinate Judge, Manjeri is directed to hear and dispose of the appeal itself, at any rate before the Court closes for summer holidays. The Registry can inform over phone to the Subordinate Judge,Tirur to get the records ready in A.S.136/09 for sending it to the Sub Judge, Manjeri. 8. The Subordinate Judge, Manjeri also may be informed over phone regarding the said transfer. Parties are directed to appear before the Subordinate Judge, Manjeri on 30.3.2010. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-