IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 CRP.No. 243 of 2011() --------------------------------- ( THE ORDER DATED 8/4/2011 IN I.A.NO.54/2011 IN O.S.NO.3/2010 OF THE IIIRD ADDL.DISTRICT JUDGE (WAKF TRIBUNAL), KOLLAM) --------------------------- REVN. PETITIONER(S): PETITIONER (4TH DEFENDANT) -------------------------------------------------------------------------------- MUSLIM ASSOCIATION EDUCATIONAL TRUST, NANDAVANAN, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY ADV.M.M.HUSSAIN, O/O.M A E TRUST, NANDAVANAN, THIRUVANANTHAPURAM BY ADV. SRI.L.MOHANAN SRI.LIGEY ANTONY RESPONDENT(S): COUNTER PETITIONERS ---------------------------------------------------------------- 1. ISHAK, S/O.OSANARU PULLAI, PATHIRIYODU LINE, A.V.STREET, ISMAIL MANZIL, BALARAMAPURAM.PIN-695 501 2. SHAHID K, S/O.MOHAMMED KANNU, SAFIYA MANZIL, PETTA NADA P.O., BALARAMAPURAM.PIN- 695 501 3. BALARAMAPURAM MUSLIM JAMA-ATH, REPRESENTED BY ITS PRESIDENT, BALARAMAPURAM (TOWN) MUSLIM JAMA-ATH, THIRUVANANTHAPURAM.PIN-695 501 4. A.M.MAZOOD, S/O.AHAMED ALI, PRESIDENT, BALARAMAPURAM (TOWN) MUSLIM JAMA-ATH, THIRUVANANTHAPURAM, RESIDING AT ISHA MANZIL, VARUVILAKAM, A.V.STREET, KOTTUKAL VILLAGE, BALARAMAPURAM P.O., TRIVANDRUM.PIN-695 501 sts 2/- -2- C.R.P.NO.243/2011 5. J.M.SUBAIL, GENERAL SECRETARY, BALARAMAPURAM (TOWN) MUSLIM JAMA-ATH, THIRUVANANTHAPURAM.PIN- 695 501 6. THE KERALA STATE WAKF BOARD, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, WAKF BOARD OFFICE, V.I.P.ROAD, KALOOR, KOCHI-17 R3 BY ADV.SRI.BIJU BALAKRISHNAN R6 BY ADV. SRI.A.A.ABUL HASSAN, SC, WAKF BOARD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- CRP No.243 of 2011 ------------------------------------------- Dated this the 29th June, 2011 ORDER Basant, J. The petitioner is the fourth defendant in a suit pending before the Wakf Tribunal. The prayers in the suit include a prayer for issue of a mandatory injunction to hand over possession of properties to the first defendant Jama Ath. Property is claimed to be a Wakf property. The petitioner herein/the 4th defendant had entered appearance and resisted the prayer in the suit. Various contentions were raised. Inter alia a contention was raised that the property is not wakf property and therefore the Tribunal has no jurisdiction. 2. The trial has not started. Issues have been framed, it is submitted at the Bar. At that juncture, the petitioner/4th defendant wanted a further contention to be raised in his written statement. According to him, he was obliged to raise that contention in the light of the subsequent decision in Ramesh Gobindram v Sugra Humayun Mirsa Wakf (2010 (3) KLT 862 S.C.). Overruling the earlier binding decision in C.R.P.NO.243 OF 2011 : 2 : Pookoya Haji v Cheriya Koya (2003(3) KLT 32), it was held in Ramesh Gobindram v Sugra Humayun Mirsa Wakf (supra) that the Tribunal has no jurisdiction to decide a claim for eviction. The petitioner filed an application to incorporate a further plea that the Tribunal does not have jurisdiction at any rate in the light of the decision in Ramesh Gobindram v Sugra Humayun Mirsa Wakf (supra) that prayer for amendment was rejected by the Tribunal by the impugned order. The Tribunal appears to have felt that in the light of the subsequent decision in Board of Wakf v Anis Fatima Beegum (2010(4) KLT 765) that objection which the petitioner wants to raise is of no consequence. It is accordingly that the impugned order was passed by the Tribunal dismissing the prayer for amendment. 3. The petitioner claims to be aggrieved by the impugned order. The learned counsel for the petitioner submits that the subsequent decision in Board of Wakf v Anis Fatima Beegum (supra) does not in any way affect the dictum in Ramesh Gobindram v Sugra Humayun Mirsa Wakf (supra). This has been so stated clearly in paragraphs-22 and C.R.P.NO.243 OF 2011 : 3 : 23 of Anis Fatima Beegum (supra). The rejection of the prayer for amendment is in these circumstances not justified, contends the counsel. If this contention is not raised specifically, later on the petitioner's option to urge that the Tribunal has no jurisdiction will be frustrated. Hence the impugned order may be set aside and the Tribunal may be directed to permit amendment, submits the learned counsel. 4. All the respondents have been served. Notice has been given to the counsel appearing before the court below. We do not think it necessary to order notice afresh from this Court to the plaintiffs/respondents 1 and 2 herein. Notice was given to the counsel appearing before the lower court and the counsel has acknowledged notice though there is a suggestion by the counsel that notice may be served on the party directly. In the pending matter notice has been given to the counsel and it must be reckoned that all the respondents are aware of the proceedings. 5. Before us respondent Nos.3,4 and 5 have entered appearance through counsel. Respondent No.6 has also C.R.P.NO.243 OF 2011 : 4 : entered appearance. Counsel for respondents 3,4 and 5 submits that they have no objection against the prayer in the CRP. The learned counsel for the 6th respondent submits that first of all the question will have to be considered whether the property is a Wakf property. In that view of the matter, the present plea sought to be raised is not too relevant, submits the learned counsel for the 6th respondent. 6. We are unable to accept the objections raised by the 6th respondent. Even if it were found that the property is a Wakf property, still the question will have to be considered whether the Tribunal has jurisdiction in the matter inasmuch as the claim in the suit is virtually for surrender of possession of the building. Though the prayer is couched in the form of a prayer for mandatory injunction, we are unable to agree that the plea raised is irrelevant. We are of the opinion that the Tribunal ought to have permitted the amendment. 7. In the result: a. This revision petition is allowed. C.R.P.NO.243 OF 2011 : 5 : b. The impugned order is set aside. c. I.A.No.54/2011 in O.S.No.3/2010 filed by the petitioner before the Tribunal shall stand allowed. R. BASANT, JUDGE. K. SURENDRA MOHAN, JUDGE. cl