ALAPPUZHA MUHIYIDEEN MASJID ASSOCIATION Vs. ABDULKHADER

JUDGEMENT

(1.) This Civil Revision Petition is before us on the basis of a reference order passed by a learned Division Bench of this Court. A suit was filed by the Respondents before the Wakf Tribunal for framing a scheme, alleging mismanagement on the part of the first revision Petitioner, i.e. Alappuzha Muhiyideen Masjid Association. A preliminary objection was raised regarding the maintainability of the suit and the jurisdiction of the Tribunal. The Wakf Tribunal held that it has jurisdiction. The above finding of the Tribunal was challenged before this Court in C.R.P. Nos. 703 of 2002 and 704 of 2002. A Division Bench of this Court, by a common order dated 8-8-2005 held that the suit is perfectly maintainable before the Wakf Tribunal. It was so held relying on the judgment of a Division Bench of this Court in Pookoya Haji v. Cheriya Koya, 2003 3 KerLT 32 Pursuant to the above common order, the Tribunal proceeded with the enquiry in the O.A. After enquiry, a preliminary judgment for framing of a scheme and rendition of accounts was passed. The present Civil Revision Petition is filed by the first Respondent Masjid Association challenging the above preliminary judgment and decree. When this Civil Revision Petition was taken up by the Division Bench for final hearing and disposal, an argument was raised on the basis of the judgment of the Supreme Court in M.P. Wakf Board v. Subhan Shah, 2006 10 SCC 696 that the Wakf Tribunal lacks in inherent jurisdiction to pass the impugned preliminary judgment and decree. The above argument was answered by the Respondents mainly on the basis of the common order in C.R.P. Nos. 703 of 2002 and 704 of 2002. The Division Bench did notice force in the argument advanced on behalf of the Respondents that when the issue of jurisdiction was raised and decided in favour of the Respondent by an order inter partes and when that order has become final, and observed that there is force in the contention of the Respondent that the question has become final. Nevertheless the Division Bench did not become inclined to accept that argument as the Supreme Court had in Subhan Shah's case laid down that the Wakf Tribunal lacked in power to frame schemes for administration of wakfs. It was noticed by the Division Bench that the earlier finding in C.R.P. Nos. 703 of 2002 and 704 of 2002 rested mainly on the judgment of this Court in Pookoya Haji's case and that the same is in direct conflict with the judgment of the Supreme Court in Subhan Shah's case. According to the Division Bench, a question arose whether the judgment in Pookoya Haji's case requires reconsideration in the light of the decision of the Supreme Court in Subhan Shah's case. After saying so, the Division Bench would express the opinion that in the light of the Supreme Court judgment in Subhan Shah's case "a reconsideration of the matter is required" and accordingly, would refer the "matter" to a Full Bench for reconsideration.

(2.) We have heard the submissions of Sri Azad Babu, learned Counsel for the revision Petitioner and those of Sri Hariharaputhran, learned Counsel for the Respondent. Mr. Azad Babu, at the very outset, would refer to the recent judgment of the Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 2010 3 KerLT 862 and submit that the judgment of this Court in Pookoya Haji's case has been expressly overruled by the Supreme Court under that judgment. According to Mr. Babu, the Civil Revision Petition has been referred to this Court only for deciding the question as to whether the judgment in Pookoya Haji's case requires reconsideration in the light of Subhan Shah's case. Now that the judgment in Pookoya Haji's case has been expressly overruled by the Supreme Court, it is not necessary for this Court to answer the reference. The reference can be closed in the light of the judgment of the Supreme Court in Ramesh Gobindram's case .

(3.) Mr. Hariharaputhran, per contra, would submit that what has been referred to this Court is not just the question whether the judgment in Pookoya Haji's case requires reconsideration. According to the learned Counsel, it is the entire matter which has been referred to this Court, particularly, the matter whether it is open to the revision Petitioner to raise the contention that the Wakf Tribunal has jurisdiction over the O.A. The word "matter" has been carefully used by the Division Bench in its reference order, submitted the counsel. In this context, Mr. Hariharaputhran would refer to the observations of the Division Bench in para 2 of its order regarding the merit of the contention raised by the Respondent based on the principles of res judicata. Strong reliance was placed by Mr. Hariharaputhran on the judgment of the Supreme Court in Ashok Kumar Srivastav v. National Insurance Co. Ltd., 1998 4 SCC 361. The learned Counsel argued that principles of res judicata can be invoked not only in separate subsequent proceedings, but they will get attracted in subsequent stages of the same proceedings. Once an order made in the course of a proceeding has become final, it would be binding at the subsequent stages of the same proceedings, argued counsel.