NIRANAM MUSLIM Vs. ABDUL AZEEZ

JUDGEMENT

(1.) On the allegations that petitioner No. 1 is a society registered under the provisions of the Societies Registration Act, it is governed by its bye - law and that petitioner No. 2 who was appointed as Imam of the Mosque run by petitioner No. 1 on 21/06/2003 at a time when there was no bye - law for petitioner No. 1 governing its affairs and that on account of that peculiar situation petitioner No. 2 continued to function as Imam even beyond the period of one year but, in view of the approved bye - law by petitioner No. 1, petitioner No. 2 could not continue as Imam exceeding the period of one year which period has already expired but he is unauthorisedly continuing as Imam of the Mosque, respondent who is a member of petitioner No. 1 filed OS No. 22 of 2010 in the Court of learned Sub Judge, Thiruvalla seeking a decree for injunction restraining petitioner No. 1 from permitting petitioner No. 2 to carry out any function as Imam. That suit was resisted by the petitioners contending inter alia that it is barred under S.85 of the Wakf Act (for short, 'the Act') since the dispute is a matter coming within the jurisdiction of Wakf Board and at any rate, the dispute is to be resolved by the Wakf Board (for short, 'the Board'). Learned Sub Judge heard the application for temporary injunction (IA No. 213 of 2010) and held that prima facie, contention of petitioners that the suit is barred under S.85 of the Act cannot be sustained, continuance of petitioner No. 2 as Imam is against bye - law approved by petitioner No. 1 and accordingly granted temporary injunction as prayed for. Without taking recourse to the statutory remedy if aggrieved by the said order petitioners have approached this Court seeking invocation of Art.227 of the Constitution contending that order under challenge is per se illegal in that Civil Court had no jurisdiction to entertain the suit on account of bar created by S.85 of the Act. Along with Writ Petition, petitioners produced two documents which according to learned counsel would show that petitioner No. 1 is a Wakf registered with the Board as provided under the Act and hence suit is not maintainable. Learned counsel contended that finding of learned Sub Judge that in the absence of evidence of dedication of property for pious, religious or charitable purposes, petitioner No. 1 is not a Wakf is quite illegal. Reliance is placed on decisions in Madeena Masjid v. Kerala Jama Ath Islami Hind, 2007 (3) KHC 170 : 2007 (3) KLT 800 : ILR 2007 (3) Ker. 497 : 2007 (3) KLJ 336, Muhammed Kunju M.A. v. Biju and Others, 2008 (2) KHC 404 (DB) : ILR 2008 (2) Ker. 290 : 2008 (2) KLT 833 , and Radhey Shyam and Another v. Chhabi Nath and Others, 2009 KHC 4615 : 2009 (5) SCC 616 : 2009 (78) AIC 191 : 2009 (5) All LJ 244. Per contra, learned counsel for respondent asserted contentions raised before learned Sub Judge that petitioner No. 1 is only a society registered under the Societies Registration Act, no question of dedication of property did arise and hence no Wakf is created. According to the learned counsel this Court may not exercise jurisdiction under Art.227 of the Constitution when petitioners have a statutory remedy under O.43 R.1 of the Code of Civil Procedure (for short, 'the Code'). Learned counsel placed reliance on the decisions in A. Venkatasubbiah Naidu v. S. Chellappan and Others, 2000 KHC 1703 : 2000 (7) SCC 695 : AIR 2000 SC 3032, and Haji P. Laikath Alikhan v. Unneenkutty Saquafi, 2005 KHC 1228 : 2005 (4) KLT SN 43 (Case No. 57) : ILR 2005 (4) Ker. 530 ).

(2.) No doubt this Court is not without power to interfere in exercise of its supervisory power under Art.227 of the Constitution with an order passed by a subordinate Court in appropriate circumstances. But when disputed facts are involved it is not proper for the High Court to interfere. In such situations the parties should settle the dispute in the regular forum. Here, averments in the plaint are to the effect that petitioner No. 1 is a registered society while that is denied by petitioners. Contention of petitioners that petitioner No. 1 is a Wakf is resisted by the respondents. Documents now pressed into service by the petitioners (Exts. P1 and P2) were not produced before the learned Sub Judge and hence, learned Sub Judge had no occasion or opportunity to consider the said documents. Nor did respondent get an opportunity to challenge the said documents or, contend that notwithstanding the said documents his assertion in the plaint that petitioner No. 1 is only a society registered and governed by the Societies Registration Act and its bye - law is sustainable. In Haji P. Laikath Alikhan v. Unneenkutty Saquafi (supra) it has been held by this Court that dedication of movable or immovable property is essential to constitute a Wakf under S.3(r) of the Act. Therefore crucial question for consideration is whether petitioner No. 1 is a Wakf as contended by petitioners or, is only a society registered under the Societies Registration Act as claimed by respondent. Since that disputed fact is glaring and has to be settled by regular forum I do not think it proper to exercise the power under Art.227 of the Constitution. In view of that I hold that the appropriate remedy open to petitioners is to challenge maintainability of the suit before learned Sub Judge as provided under law or, if they are aggrieved by the impugned order to file Civil Miscellaneous appeal before the appropriate forum and challenge correctness of the impugned order.