Janaki Busappa and Others vs A.P. State Wakf Board and Another

P.S. Narayana, J.—Heard Sri C.B. Rammohan Reddy, the learned Counsel representing the revision petitioners and Sri Syed Shareef Ahmed, the learned Counsel representing respondent No. 2.

The Civil Revision Petition is filed u/s 83(9) of the Wakf Act, 1995 (hereinafter in short referred to as ''the Act'' for the purpose of convenience) by the revision petitioners being aggrieved of the dismissal of the suit O.S. No. 68/2000 on the file of the A.P. Wakf Tribunal, Hyderabad (hereinafter referred to in short as ''the Tribunal'' for the purpose of convenience). The revision petitioners instituted the suit originally praying for the relief of declaration as well questioning the proceedings of defendant No. 1 vide letter No. P2/28/KNL/ 99, dt. 21-8-999 as null and void and inoperative and bad in law. The Tribunal in the light of the respective pleadings of the parties, recorded the evidence of P.W. 1 to P.W. 8 and D.W. 1, marked Ex. A-1 to Ex. A-26, Ex. B-1 to B-10 and on appreciation of the evidence available on record, while answering issue No. 1 answered that the plaintiffs failed to establish their lawful right and possession to grant perpetual injunction. Further while answering issue No. 2 held that the plaintiffs are not entitled for the relief of declaration to declare the proceedings of defendant No. 1 vide letter No. P/2/28/KNL799, dt. 21-8-99, as null and void, inoperative, bad in law and further while answering issue No. 3 relied upon Madras State of Wakf Board v. Jamal Mohammed 1966 (2) M.L.J. 103 and came to the conclusion that inasmuch as the mandatory provisions of Section 89 of the Act had not been complied with and prior notice had not been given, the said defect cannot be cured and ultimately while answering issue No. 4 dismissed the suit without costs.

Sri C.B. Rammohan Reddy, the learned Counsel representing the revision petitioners made elaborate submissions touching the merits and demerits of the matter pointed out to Ex. A-2 and Ex. A-3- sale deeds, Ex.A-11 - notice and also specifically pointed out to the discrepancies in Ex. B-2, Ex. B-3, Ex. B-4, Ex. B-5, Ex. B-6, Ex. B-8 apart from the other documents marked as ''B'' series and would maintain that this particular survey number does not find a place at all and when that being so, without recording appropriate findings in this regard, just simply relying on those documents and dismissing the suit is bad in law. The Counsel also had taken this Court through the voluminous oral evidence available on record - P.W. 1 to P.W. 8 as well and also further pointed out to the evidence of D.W. 1. The learned Counsel also pointed out to the report submitted by the learned District Judge, Kurnool and would maintain that even if the report if carefully examined, it would support the stand taken by the Wakf board. While further elaborating his submissions, the learned Counsel pointed out to the docket proceedings and also certain findings recorded by the Tribunal in relation to the formulation of the issues and would maintain that in the light of the language of Section 85 of the Act since the Tribunal to be taken as a Civil Court, substantially the provisions of CPC to be followed and the Counsel also pointed out that initially the issues were not settled at all by the Tribunal and after the closure of evidence and after arguments had been submitted, the Tribunal having detected the mistake, at that stage had thought of reopening the matter for the purpose of formulating the issues and subsequent thereto without affording any opportunity in this regard, on the strength of the evidence which had been already adduced by the parties prior to the settlement of the issues, just recording a finding that the parties had not availed the opportunity, proceeded to decide the matter on merits and ultimately dismissed the suit. In the light of the language of Order XIV Rule 1 of the CPC if to be read along with Section 83(5) of the Act, this procedure which had been followed would definitely cause serious prejudice to the parties and in this view of the matter, the Judgment under challenge is vitiated. The learned Counsel also placed reliance on MP. Wakf Board v. Subhan Shah (D) by L. Rs. 2007 (3) SCJ 285 : 2007 (4) ALT 24.1 (DNSC).

Per contra, Sri Syed Shareef Ahmed, the learned Counsel representing the respondent would maintain that it may be true that the Tribunal should be deemed to be Civil Court by virtue of Section 83(1) of the Act, but however, the parties cannot be put to disadvantage when the mistake was committed by the Court, even otherwise, in the light of the findings recorded by the Tribunal, though the docket proceedings may be otherwise, it may have to be taken that opportunity has t be given to the parties. Even otherwise, the learned Counsel would maintain that it is not as though all the provisions of the CPC are made applicable and incidentally the learned Counsel also referred to Sub-section (9) of Section 83 where it was specified that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal and also pointed out to the proviso and would maintain that inasmuch as the whole evidence had been considered and though no issues had been settled, the parties being conscious of their respective stands had gone for trial, submitted written submissions and ultimately having invited an order on merits, the Tribunal decided the matter on appreciation of the oral and documentary evidence available on record, especially when no prejudice is caused, that ground cannot be taken as a ground of attack at all in the present Civil Revision Petition. While further making his submissions, the learned Counsel also pointed out that this ground was not raised specifically as a ground of attack even in the grounds of revision. The learned Counsel also placed strong reliance on the decision of the Apex Court in Nedunuri Kameswaramma Vs. Sampati Subba Rao, and also the decision of the Division Bench of this Court in S. Abdul Razack Vs. Mandal Revenue Officer, Kollur and another, . The learned Counsel also touched the merits and demerits of the matter and made elaborate submissions pointing out to the relevant portions of the report submitted by the learned District Judge, Kurnool and also incidentally referred to Section 6 of the Act as well and further placed strong reliance on the decision of this Court in Dr. T.S.A. Guptha Vs. Joint Collector-II and Others, . Further yet another objection had been raised by Sri Syed Shareef Ahmed that the issuance of a notice is a condition precedent being mandatory, the dismissal of the suit for non-compliance thereof may have to be affirmed. Strong reliance was placed on the decision of this Court in The Andhra Pradesh State Wakf Board rep. by its Chief Executive Officer Office at Manoranjan Complex M.J. Road Hyderabad v. Tati Venkata Sheshagiri Rao and others C.R.P. No. 4311/99 dt. 31-8-2001. Further several substantial and technical objections for very maintenance of the suit especially the relief of declaration which had been prayed for had been canvassed in elaboration and incidentally the urgency involved in the matter also had been highlighted in detail, the brief facts and series of events also had been placed before this Court. Sri Syed Shareef Ahmed also would contend that this defect would not go to the root of the matter and hence the Judgment cannot be said to be vitiated on this ground.

Heard the Counsel on record in elaboration, perused the findings recorded by the Tribunal, the evidence available on record, the report submitted by the learned District Judge, Kurnool and the different provisions of the Act relied upon by the contesting parties and the relevant provisions of the CPC as well.

In the light of the respective stands taken by the parties and also in the light of what had been recorded by the Tribunal at paras 3 and 4 of the Order impugned in the Civil Revision Petition in particular, whether this matter to be decided on merits, reappreciating the oral and documentary evidence available on record or yet another opportunity to be given to the parties to adduce further evidence in the light of the formulation of the issues. The respective pleadings of the parties and the stands taken by them need not be referred to in elaboration. The Tribunal at paras 3 and 4 observed as hereunder:

Due to oversight issues were not framed, but the same was noticed by my predecessor and he got the suit reopened and framed the following issues for trial.

Whether the plaintiffs are entitled for perpetual injunction against the defendants to restrain them from interfering with peaceful possession and enjoyment of the plaint schedule property?

Whether the plaintiffs are entitled for the relief of declaration to declare the proceedings of the defendant No. 1''s letter No. P2/28/KNL/99, dt. 21-8-99 as null and void, inoperative and bad in law?

Whether this suit is bad and not maintainable for want of mandatory notice u/s 89 of the Wakf Act, 1995?

To what relief?

After the issues were framed, none of the parties led any evidence, the parties relied on the evidence already led. P.W. 1 to P.W. 8 were examined Ex. A-1 to Ex. A-26 are marked, in support of their contention, the defendants, got examined D.W. 1 and got marked Ex. B-1 to Ex. B-10.

Order 14 Rule 1 of the CPC reads as hereunder:

Framing of issues:- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds:

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

Section 83 of the Act deals with Constitution of Tribunals, etc. Sub-section (5) specifies: the Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. It is no doubt true that Sub-section (8) specifies that the Execution of any decision of the Tribunal shall be made by the civil Court to which such decision is sent for decision in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908). Sub-section (9) specifies as hereunder:

No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may conform, review or modify such determination or pass such other orders as it may think fit.

It is needless to say that though the dismissal of the suit was made by the Tribunal in the light of Sub-section (9) and the proviso as well, inasmuch as the First Appeal cannot be maintained, the Civil Revision Petition had been preferred. Sri Syed Shareef Ahmed placed strong reliance on the decision of the Apex Court in Nedunuri Kameswaramma Vs. Sampati Subba Rao, wherein it was observed that whether the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. Several other decisions relied upon by Sri Syed Shareef Ahmed and also Sri C.B. Rammohan Reddy are the decisions touching the other merits and demerits of the matter. It is needless to say that these aspects may have to be appreciated at the appropriate stage. It is also needless to say that even the report submitted by the learned District Judge, Kurnool, may have to be appreciated at the appropriate stage. This Court is not inclined to express any opinion relating to the other merits and demerits and the findings recorded by the Tribunal on appreciation of the oral and documentary evidence available on record. Here is a peculiar case where the Tribunal having detected the mistake that the issues had not been formulated, having formulated the issues after the closure of evidence and after the written submissions were made, it appears that the Tribunal had not given any opportunity to the parties by calling upon them to adduce further evidence, if the parties choose to do so, in the light of the issues formulated. When no issues had been formulated and the trial was proceeded with by recording evidence and after written arguments were made, having detected the mistake and when the matter was reopened and the issues had been formulated, it is not as though the parties may have to request the Court for the purpose of giving any opportunity further, it is the duty of the Court to formulate or frame the issues, it is equally the duty of the Court or Tribunal to call upon the parties to do so if they choose to do so. On perusal of the docket proceedings, such procedure had not been followed. It appears the Tribunal had taken it for granted that the parties were not interested in further adducing any further evidence and on the strength of the evidence which had been already recorded long prior to the issues, the findings had been recorded and ultimately the suit had been dismissed. This procedure followed by the Tribunal, in the considered opinion of this Court, definitely had caused prejudice to the parties and in that view of the matter, the Judgment is vitiated. It is made clear that relating to the other elaborate submissions made by both the Counsel, Sri C.B. Rammohan Reddy and Sri Syed Shareef Ahmed, relating to the merits or appreciation of evidence, this Court is not inclined to express any opinion whatsoever. Accordingly, the impugned order under challenge in the Civil Revision Petition is hereby set aside and the matter is remanded to the Tribunal to give opportunity to both the parties to let in evidence on the strength of the issues which had been formulated and also formulate additional issues, if any, if the contesting parties choose to make such request on the material available on record and decide the matter afresh in accordance with law. It is no doubt unfortunate that this Court is left with no other option except to make an order of remand in the light of the circumstances specified supra. It is also true that the property, which is being claimed by an institution, is involved, in the light of the same, especially in the light of the urgency pleaded by Sri Syed Shareef Ahmed, let the Tribunal decide the matter at the earliest point of time, preferably within a period of three months from the date of receipt of this order.

Accordingly, the Civil Revision Petition is allowed to the extent indicated above. The parties to bear their own costs.