SHAMSUDDIN Vs. TUTICORIN JAMIA MASJIDTUTICORIN

JUDGEMENT

(1.) The plaintiff in O. S. 4 of 1982, on the file of the Sub Court, Tuticorin, came forward with I. A. 26 of 1982, for appointment of a Commissioner for taking an inventory of the account books of respondent I wakf. The suit itself is one purporting to have been laid under Section 92, Civil P. C., claiming the Primary relief of framing a scheme. The respondents opposed the said application on the ground that the suit itself is not maintainable for want of consent of the Wakf Board and therefore the application deserves to be dismissed. The teamed Subordinate Judge upheld the preliminary objection raised by the respondents and dismissed the application for appointment of a Commissioner. It is this order that is assailed in this revision.

(2.) According to the learned counsel for the petitioners the Court below erred in considering the maintainability of the suit when all that was before the Court below was an application for appointment of a Commissioner. I find, such a contention is hardly tenable. For, before a Court is seized of any proceeding, it must have the jurisdiction to entertain the same or the proceeding must be in order in this case, the defence is that the very suit cannot be entertained by the Court, because, the plaintiffs had not admittedly obtained the consent in writing of the Board as per mandate in Section 55 (2) of the Wakf Act 1954. According to the said provision, no suit to obtain any of the reliefs referred to in S. 92, C. P. C., 1908, relating to any wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and after the institution of any such suit, it shall not be necessary to obtain the consent in writing of the Board for the institution of any such suit, it shall not be necessary to obtain the, consent referred to in that section, not withstanding anything contained therein, provided that nothing in this sub-section shall apply in relation to any such suit against the Board. The provision clearly points out that so far as any proceeding against the Board, there is no need to obtain the leave of the Board; but so far as any other suit where any of the reliefs referred to in S. 92, C. P. C., relating to any wakf were to be claimed, then the plaintiffs shall obtain the wakf consent of the Board. According to the plain language employed in sub-section (2) it s obvious that the very institution of the suit without the written consent of the Board is barred. In this case, it is not in dispute that the relief sought for is in respect of, a wakf Again, it is not in dispute that no written consent from the Board envisaged in sub- section (2) was obtained by the plaintiffs. Then, it follows that such a suit shall not be instituted. Thus, the conclusion reached by the Court below is unassailable.

(3.) Learned counsel for the respondents referred to a Full Bench decision of Kerala High Court in Mohd. Jacoo v. Dist. Collector, where the majority ruled (at p. 346)- "That being so, it would not be surprising if the Legislature thought it wise to curtail a private party's right of suit by requiring him to comply with both sub-section (2) of Section 55 of the Wakf Act and with Section 92 of the Code. The very fact that the Legislature armed the Board with very extensive Powers so far as the administration of wakfs was concerned, inclusive of the power to bring a suit without complying with Sec. 92 of the Code, is good reason for thinking that, so far as suits by private parties are concerned, Section 55 of the Wakfs Act was intended to supplement and not to replace Section 92 of the Code. In other words, the entire subject-matter of Section 92 of the Code is not taken away by Section 55 of the Wakf Act."