IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRP.No. 339 of 2008() --------------------- AGAINST THE ORDER DATED 03/04/2008 IN IA.91/08 IN WOS.14/2008 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER/RESPONDENT/1ST DEFENDANT: ------------------ BASHEER MOHIYUDHEEN S/O. MOIDU MAULAVI RESIDING AT ISLAMIC CENTRE PULLEPADY, COCHIN-18 BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT/PETITIONER/PLAINTIFF: ------------- MUTHAVALLI, MADEENA MASJID PULLEPADY AND MESSERS COCHIN ISLAMIC WELFARE TRUST REPRESENTED BY ITS CHAIRMAN P.K. HASHEEM, S/O. ABDUL RAHIMAN, HOUSE NO.39/515 BONANZA, ERNAKULAM BY ADV. SRI. ABDUL SAMAD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- C.R.P. NO. 339 OF 2008 ---------------------------------------------------------------- Dated this the 11th day of April, 2008 O R D E R Harun-Ul-Rashid, J. The respondent/defendant in I.A. No.91 of 2008 in W.O.S. No. 14 of 2008 on the file of the Wakf Tribunal, Ernakulam is the revision petitioner. The above said interlocutory application was filed by the plaintiff for a temporary injunction restraining the defendant from functioning as Imam and Katheeb of Madeena Masjid and also to restrain him and his men from interfering with the affairs of the Masjid till the disposal of the suit. The Wakf Tribunal granted the interim prayer and hence this revision. 2. The plaintiff in the suit is the Chairman of Cochin Islamic Welfare Trust which is the Mutawalli of Madeena Masjid. The Board in the meeting held on 3.2.2008 unanimously decided to issue notice to the defendant terminating his service as Imam and Katheeb of the Masjid. According to the plaintiff, inspite of termination of his service, the defendant forcefully entered the Masjid with the support of a set of people and continued to act as Imam and Khateeb for which he has no authority. C.R.P. NO.339/2008 2 The defendant in his objection raised several contentions. He inter alia contended that he is entitled to continue as Imam and Khateeb and that his name for appointment as Imam and Khateeb was forwarded by the Kerala Jama-ath Islami Hind which is an organisation having interest and preference in religious matters of Madeena Masjid and, therefore, the Mutawalli has no right to terminate his service. The defendant further contended that the order in I.A. No.67 of 2008 in W.O.S. No.21 of 2007 precluded the Mutawalli from seeking the reliefs which were not pressed into service in the earlier case. 3. Going by the definition of of Mutawalli under Section 3(i) of the Wakf Act, 1995, the Mutawalli is the manager, administrator, curator, superintendent and custodian of the Wakf property. According to Islamic law, he is the manager and administrator of Wakf property and the ownership of Wakf property vests with Allah, the Almighty. According to Ismaic jurisprudence, the position of the Mutawalli is very significant in the sense that he is not merely a servant or manager of the Wakf to carry out the directions of the Wakf as enumerated in the Wakf deed, but he has also to exercise his own discretion and take decisions diligently for the protection of the Wakf property and proper utilisation of its income according to the direction of the Wakif. He is duty bound to take all C.R.P. NO.339/2008 3 necessary steps for the proper management and safety of the Wakf in its day today functioning and has control over the income of the Wakf property. 4. It is contended by the learned counsel appearing for the revision petitioner that as the per the order in I.A. No.67 of 2008 in W.O.S. No. 21 of 2007, the petitioner is entitled to continue as Imam and Katheeb of Madeena Masjid till the disposal of the suit. The Wakf Tribunal noticed the fact that there is no order allowing the defendant to continue as Imam and Katheeb of the Masjid. The Tribunal also rightly noticed the fact that the cause of action alleged in the present suit is different from the earlier cause of action and that the defendant cannot continue as Imam and Katheeb of the Masjid when the Mutawalli has terminated his service. The fact that the relief was not pressed in the earlier suit will not debar the plaintiff from filing an interlocutory application subsequently on a different cause of action. It is submitted by the plaintiff that I.A. No.67 of 2008 was dismissed as not pressed in view of the dismissal of the petition for police protection filed by the defendant for his continuance as Imam and Katheeb of the Masjid. 5. The argument of the learned counsel for the revision petitioner C.R.P. NO.339/2008 4 that the Kerala Jama-ath Islami Hind is the sponsor of the revision petitioner and, therefore, the Mutawalli has no right to terminate his service is also an equally untenable contention. The question is not as to who nominated or recommended the petitioner to the post of Katheeb, but whether the Mutawalli can decide whether his service is required or not in the Masjid. Since the appointing authority, namely the Mutawalli who is competent to take a decision has taken a valid decision to duty terminate his service, the petitioner cannot insist for his continuance. The finding of the Tribunal that a prima facie case has been made out by the plaintiff and that the balance of convenience is in favour of the plaintiff and hence the plaintiff is entitled to the reliefs sought for is legal and valid. We find no ground to disagree with the reasoning and finding of the Tribunal and to arrive at a different conclusion. The Civil Revision Petition is without merit and it is accordingly dismissed. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.339/2008 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. C.R.P. NO.339/2008 O R D E R 11TH APRIL, 2008