SK JAMAITULLAH Vs. SK JAYAKATULLAH

JUDGEMENT

(1.) THE present Second Appeal arises out of the judgment dated 29 -9 -1984 passed by the learned Additional District Judge, Puri in Money Appeal No. 12/14 of 1983/82 arising out of the judgment dated 21 -6 -1982 passed by the learned Additional Subordinate Judge, Puri in OS No. 1/220 of 1982/78 -III. A short but interesting point is argued by the learned advocate for the appellants before this Court. In fact the suit had been brought by the plaintiffs praying inter alia, for a decree against the defendants or any of them to render accounts to the plaintiffs; to direct the defendants to handover the documents, title deeds, resolution books and accounts papers; to appoint a commissioner to finalise the accounts if the defendants fail to comply with the preliminary decree within a stipulated period and for other incidental reliefs as permitted under law. The case of the plaintiffs is that they and the defendants are interested in the management of the mosque and welfare of the Mahammadan community and there is substantive income out of the scheduled property. A committee was formed in the year 1972 in which defendant No. 1 was the President, defendant No. 2 was the Vice -President, defendant Nos. 3 and 4 were respectively the Secretary and Assistant Secretary, defendant No. 5 was the Cashier and defendant Nos. 6 to 11 were the members of the committee. Essentially the suit was filed seeking relief in the representative capacity under Order 1, Rule 8 of Civil Procedure Code. It is submitted before this Court that in such a suit where there are allegations against the Board of Wakfs, presence of the Board is necessary, otherwise the suit will be taken to have not been properly framed and the matter has to proceed accordingly. In particular, attention of this Court is drawn to Sections 55 and 57 of the Wakf Act and the embargo to bring the suit excepting in the prescribed manner. For better appreciation and ready reference Sections 55 and 57 of the Act are quoted hereinbelow :

(2.) ADMITTEDLY , in this case the Board of Waqf was not party when the suit was filed. Subsequently, however, by way of amendment the Chairman and Secretary of the Board were brought on record. Attention of the Court is drawn to the definition clause of Section 3 of the Waqf Act, 1954 which provides inter alia that 'Board' means a Board of Waqf established under Sub -section (1), or as the case may be, under Sub -section (1 -A), of Section 9. Section 9 similarly indicates inter alia that with effect from such date as the State Government may, by notification in the official gazette, appoint in this behalf, there shall be established a Board of Waqf under such name as may be specified in the notification. Section 9(2) of the Act indicates that the Board shall be a body corporate hiving perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be used. It is very much clear from the said definitions in Section 3 as well as Sections 9(1) and 9(2) of the Waqf Act that the Board is a legal entity and can sue or be sued upon in the name of the Board. The composition of the Board as per Section 10 of the Waqf Act is that the Board shall consist of eleven members, in the case of a State and the Union territory of Delhi and five members, in the case of any other Union territory. There shall be a Chairman of the Board who shall be elected by the members from amongst themselves. Framing of a suit with the nature of relief sought for as in the instant case is not available in absence of the Board as Board is found to be not only a proper party, but a necessary party. In absence of such necessary party, the suit cannot proceed, nor the reliefs claimed are available to the plaintiffs even on merit.