Ram Krishna Singh vs Prohlad Roy Agarwalla

Guha Ray, J.—This is an application for revision of an order dismissing the applicants'' application for review of a decree passed on June 13, 1955, in a suit by the opposite party for ejectment of the Defendants from the premises. What appears to have happened is that there was an application for an order u/s 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and the Defendants were ordered by Order No. 10, dated May 12, 1955, to deposit the arrears of rent within fifteen days and subsequent rent by the 15th of the month following. The Defendant did not comply with this order and then the suit was adjourned to May 30, 1955, awaiting deposit. Ultimately, as no deposit was made, the defence of the Defendants against ejectment was struck off and the suit was fixed for ex parte hearing on June 13, 1955. The Defendants did not appear at all after May 12. 1955, when the order directing them to deposit the arrears of rent was made and they did not also appear on the date when the suit was taken up for ex parte hearing. There was an ex parte decree. The Defendants thereafter, instead of filing an application under Order IX Rule 13 of the CPC within one month of the ex parte decree, moved an application for review. The learned court below dismissed that application on the ground that there was no ground for review as there was no error on the face of the record.

The only point argued in favour of the applicants is that the order u/s 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, was a nullity and was without jurisdiction and as it was a nullity, the order fixing the suit for ex parte hearing and the ex parte decree were all bad. It is, accordingly, contended that the ex parte decree, on the face of it, was bad. The claim for ejectment was on two grounds, namely, that the Defendants were in arrears with their rents and that the Plaintiff reasonably required the premises for his own use and occupation. The question now is whether, in a suit of this composite nature, it is open to the trial court to proceed u/s 14(4) at all. It has been held in the Full Bench case in T.S.R. Sarma Vs. Nagendra Bala Debi, and also by a Division Bench in the case of Maulvi Miah (Maulavi and Co.) Vs. Sashanko Mohan Guha, that the type of suit contemplated by Section 14(4) of the Rent Control Act of 1950 is the same as contemplated by Section 14(1) of the Rent Control Act of 1950 and Section 14(1) of the Rent Control Act of 1950 is clearly limited to suits in which the only ground which disentitles the tenant from the protection of the Act is that he has

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Mutwali but that application (Misc. Judl. Case No. 348 of 1948) was thrown out by the Court on Amin''s objection by its order, dated November 2, 1949. Then after Amin''s death the present Petitioner applied again to the Commissioner of Wakfs for registration of his name as Mutwali but the said application was rejected as the opposite party had already got his name enrolled and registered there as Mutwali u/s 40 of the Bengal Wakf Act during the minority of Begum Ekbal Jahan, who was the eldest daughter of Kazi Md. Amin and who, according to the Commissioner, was the rightful Mutwali under the Wakfnama after his death. The Petitioner then applied to the learned District Judge for his appointment as Mutwali in terms of the observation quoted above from the High Court judgment and this application was eventually allowed by the learned District Judge by his order dated May 4, 1955, passed ex-parte. On November 26, 1955, the opposite party applied for the setting aside of the said ex-parte order alleging inter alia that the said order had been obtained on untrue allegations and suppression of material facts and without notice to him and that it was otherwise also bad in law, the learned District Judge having no jurisdiction as Kazi to appoint a Mutwali where there was no vacancy in that office and there was a Mutwali already enrolled and registered under the Wakf Act. By his order dated June 8, 1956, the learned District Judge allowed this application, set aside his ex-parte order dated May 4, 1955 and cancelled the Petitioner''s appointment as Mutwali, virtually also rejecting finally his prayer for the same. It is against this order that the present Rule was obtained by the Petitioner and herein the propriety of the said order is challenged by him.

In our opinion, this Rule should succeed in part and, while the setting aside of the ex-parte order should stand, the Petitioner''s application for his appointment as Mutwali should be reconsidered by the learned District Judge in accordance with law in the presence of the opposite party in the light of certain observations which we shall presently make herein.

It is undeniable that the Petitioner''s application for his appointment as Mutwali suffered from suppression of certain material facts, notably the observation, on which Md. Amin''s application for leave to appeal to the Federal Court was rejected, and the previous order of the District Judge by which his previous application for a similar relief was refused. Admittedly, also, the present opposite party who, on the admitted facts of the case, ought to have been impleaded in the proceedings, in which the ex-parte order in question was made, was not so impleaded, and although there was a newspaper advertisement by way of notice, no actual notice of the proceedings was issued or served upon him. In these circumstances, the ex-parte order of the learned District Judge, appointing the Petitioner Mutwali of the disputed Wakf, cannot stand and the Petitioner''s application in that behalf should be reconsidered by the court below in accordance with law in the presence of the opposite party after giving him an opportunity to file his objection to the same. The learned District Judge has not adopted this course as, in his view, the opposite party''s enrolment and registration as Mutwali under the Wakf Act, which was tantamount to his appointment as such by the Commissioner, ousted the jurisdiction of the District Judge as Kazi to make any such appointment and as such the Petitioner''s application was bound to fail and needed no further consideration. With this view of the learned District Judge we do not agree. The power of the Commissioner to appoint a Mutwali is derived from Section 40 read with Section 29 of the Act but this appointment is only for a temporary period and is made only in the exigency of a vacancy or dispute and it is subject to and liable to be superseded by an order of a Competent Court as mentioned in Section 40. Competent Court is not defined in the Act but, in our opinion, it certainly includes the Court of the District Judge which is the principal Civil Court of the district and as such vested with the powers of the Kazi,-or, rather, the Chief Kazi (the Kazi-ul-Kuzzat)-, in the matter of appointment of Mutwali when there is an absolute vacancy in the office under the terms of the relevant deed. It seems to us that, so far as such appointment is concerned, the District Judge, as Kazi or Chief Kazi as aforesaid, has undoubted jurisdiction and it is, at least, doubtful whether any other Mofussil Court has any such jurisdiction, Nothing, indeed, was placed before us to justify a different conclusion and no case or instance was brought to our notice where any appointment as aforesaid was made in the Mofussil by any Court other than the District Judge''s. It is now well established that, in the Mofussil, the District Judge as the principal Civil Judge or the principal Civil Court of the district occupies the position of the Chief Kazi and possesses as such all the powers of a Kazi and, at least, in matters, relating to Wakfs, he-and probably he alone-is entitled to exercise these powers and discharge the functions of that office (vide Burdhan Mirdha v. Musst. Khodeja Bibi (1938)41 C.W.N. 314 and Khan Sahib Abdus Salam Choudhuri v. Hazi Abdul Aziz Choudhuri and Anr. (1944) 48 C. W.N. 465. Clearly then, for purposes of appointment as aforesaid, the Court of the District Judge will be a Competent Court-if not the sole Competent Court-under Section 40 and the appointment made by him will prevail over and supersede the appointment by the Commissioner which, as we have already said, is only temporary and subject to the order of the Competent Court including of course'', a final order of appointment of Mutwali. The contrary view of the learned District Judge does not seem to be correct. We do not think, therefore, that the opposite party''s appointment as Mutwali u/s 40 of the Act is any bar or impediment to the District Judge''s making the final appointment to the office and if any such appointment is made the Commissioner''s appointment must yield place to it and the right to the office must be according to the order of the District Judge, unless it is superseded in any appropriate proceeding. It must not be understood, however, that the appointment by the District Judge will have the effect of ousting any person from possession of the Wakf estate. For that purpose recourse must be had to the ordinary Civil Court or any Other appropriate authority. That it not disputed by the Petitioner and he does not want more than this that the learned District Judge should consider the provisions of the Wakf deed in relation to the facts of this case and, if he comes to the conclusion that the devolution of Mutwaliship, laid down therein, has spent itself, he will appoint a Mutwali and, in that connection, consider the Petitioner''s claim in that behalf in accordance with law. We do not think that there can be any possible or legitimate objection to this prayer.

We would, accordingly, make this Rule absolute in part and, maintaining the learned District Judge''s order so far as it set aside his previous ex-parte order and cancelled his ex-parte appointment as Mutwali, we would direct him to rehear the Petitioner''s application for such appointment in accordance with law and in the light of the observations made above in the presence of the opposite party and after giving him proper opportunities to file objections to the Petitioner''s prayer. By way of clarification, we would add also that, at this rehearing, the learned District Judge will consider the legal effect of the previous decision of this Court in F.A. No. 20 of 1943 in the light of the observations, made for refusing leave to appeal to the Federal Court from that decision, and also the legal effect of the previous order of the learned District Judge refusing a similar prayer of the Petitioner, namely, for appointment as Mutwali of the disputed Wakf.

The Rule is disposed of as above. Costs of this Rule will abide the final result.