MUHAMMED SAHIB Vs. MOHAMMED IBRAHIM

JUDGEMENT

(1.) WHETHER a civil court has jurisdiction to continue to adjudicate a pending suit after introduction of S. 85 of the Wakf Act, 1995 is the question referred by a learned Single Judge of this court to the Division Bench.

(2.) BEFORE dealing with the question of law referred, we may refer to the facts of these cases. A predecessor of the petitioner in W.P.(C)No.20780 of 2005 filed a civil suit (O.S.No.764 of 1992) before the Munsiff's Court, Palakkad. Some interim orders were also passed by that court. When S.85 of the Wakf Act was introduced with effect from 1.1.1996, the suit was returned by the civil court. The petitioner challenged the same which resulted in Ext.P1 judgment (reported as Abdul Rahiman Musaliar v. Mohammed Sahib (2002 (3) KLT 742). The S.L.P filed against the above decision was also dismissed by the Hon'ble Apex Court as can be seen from Ext.P6 in W.P.(C)No.20780 of 2005. The Learned Single Judge held that civil court has no jurisdiction only in matters wherein the Wakf Tribunal was given specific powers to adjudicate, but, other matters can continue to be agitated in the civil court. It was also held that only if the entire subject matter of the suit pertains to matters squarely coming within the jurisdiction of the Tribunal, civil court shall cease to have jurisdiction to adjudicate such proceedings. Hence following direction was given:

(3.) LEARNED counsel for the defendants relied on the decision of a Division Bench of this Court in Vasu v. Pathooty Umma (1990 (1) KLT 670) wherein it was held that subordinate judge cannot hear and dispose of an appeal filed before him under the Rent Control Act in view of the amendment of the Act making the District Court as the first appellate authority. The same view was taken by another Division Bench also in Shahul Hameed & Ors. v. S.Gangadhara Warrier (1996 (1) K.L.T. 255). In that case, none of the substantive right was affected and only appeal forum was changed and also there was provision to transfer pending appeals from sub court to District court. It is true that in the Rent Control Act, after the introduction of S.11, even if decree was passed, eviction cannot be enforced. Interpreting the above provision, a Full Bench of this Court in Kuruvilla Abraham v. John (1995 (1) KLT 161 (F.B.)) held that civil courts cannot have any jurisdiction to deal with the dispute, if any decree passed is not enforceable and the appeal filed against such decree also is not maintainable in view of the wordings of S.11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. S.11 (1) reads as follows: