JANARDAN YADAV Vs. BIHAR STATE SUNNI WAQF BOARD

JUDGEMENT

(1.) This is an application directed against an order by which the court below has refused to allow the petitioners to amend their memorandum of appeal in the following circumstance,

(2.) It appears that the opposite party (hereinafter called "the Board") made a requisition under Section 36-B of the Wakf Act, 1954 (Act No. 29 of 1954) to obtain and deliver possession of a property alleged to be a Waqf property. The Collector, accordingly, passed an order under Sub-section (2) of the aforesaid section. Being aggrieved, the petitioners filed an appeal as provided under Sub-section (4) thereof. The provision of law under Which the appeal was filed wag mentioned therein as Section 36-B (4) of the Act. It appears, however, that in the prayer portion the prayer was to set aside the order passed by the Chairman of the Board as also the order of the Special Officer of the Board, in pursuance of which, the order of Collector was passed. On a later date, however, the petitioners filed a petition for amendment of the memorandum of appeal. It was explained therein that the order of the Collector was passed only in pursuance of the order of the Chairman and the Special Officer of the Board; the appeal was intended to be one against the order of the Collector also and further that the order of the Collector was filed as annexure to the memorandum of appeal. It was said that although in the memorandum of appeal these facts had been clearly stated and the provision of law under which the appeal was filed had also been equally clearly stated, on account of inadvertent mistake some words had been left out in the portion "being aggrieved by........." as also in the prayer portion of the memorandum and hence, an amendment was prayed for, to add in that portion words to show that the appeal was against the order of the Collector and the notice served thereunder. A prayer was also made to add relevant words to that effect in the prayer portion as well. Opposition was made by the Board to this petition, on the ground that the appeal was not directed against the order of the Collector and hence there was no appeal, that the order of the Collector had not been filed, that the amendment, if allowed, would change the nature of the case and that the appeal having become time barred, the prayer for amendment should not be allowed. The learned Additional District Judge on the basis of these objections refused to allow the amendment prayed for. Hence, this application,

(3.) Looking at the original memorandum of appeal, it is quite clear that the provisions of law, as earlier stated under which the appeal was filed has been clearly mentioned as Section 36-B (4) of the Act. There can be thus no doubt so far as this is concerned that the appeal bore the provision of law under which the appeal had been filed and the appeal purported to be one under that. On the second point it also appears that to the original memorandum of appeal the notice which had been issued by the Collector under Sub-section (2) of Section 36-B of the Act had been annexed. The report of the enquiry made under Section 36-B of the Act by the Special Officer of the Board and the order of the Board passed thereon had also been appended as an-nexures. The court below is, thus, not correct in saying that the order had not been filed at all.