COMMISSIONER OF WAKFS Vs. MUNSHI ABBAS ALI

JUDGEMENT

(1.) This rule was issued sat the instance of the Commissioner of Wakfs, Bengal, and is directed against an order of the Additional District Judge of Howrah dated 4 May 1936 by which it was held that the petitioner had no right either to appear in a suit relating to certain wakf estate pending before the Judge or to appoint an ad interim mutawalli till a mutawalli was appointed by the Court. The short facts giving rise to this dispute may be stated as follows: One Jitan Bibi created a wakf of certain properties situated in the District of Howrah by a document dated 10 December 1893. In the year 1924, certain persons who are opposite parties Nos. 1 to 6 in this rule instituted a suit against the defendants in the Court of the Additional District Judge, Howrah, under Section 92, Civil P.C., praying inter alia for removal of the existing mutawallis, for the settlement of a scheme for accounts and other reliefs. There was a decree passed by the learned Judge in July 1932 by which the existing mutawallis were ordered to be removed and investigation of accounts and framing of a scheme were directed. There was an appeal against this preliminary decree taken to this Court which was disposed of on 11 December 1935 and the matter went back to the trial Court for carrying out the directions of the preliminary decree mentioned aforesaid. A few months after that, on 1 March 1936, the Bengal Wakfs Act came into force, and on 21 March 1936 the Court ordered issue of notice on the petitioner who is the Commissioner of Wakfs under Section 70, Wakfs Act. The notice was actually served upon the petitioner on 30 April 1936 and on 2 May, following the appeared and represented before the Court that he had a right to intervene in these proceedings and to be added a party under Section 71, Wakf Act. He also claimed the right to appoint an ad interim mutawalli under Section 40 of the Act. Both these rights have been negatived by the learned Judge by his order dated 4 March 1936 and it is against this order that the present rule has been obtained.

(2.) The learned Judge has held in substance that as the suit was commenced long before the Wakf Act came into force, the Commissioner had no authority to intervene in this case under Section 71 or to appoint a temporary Mutawalli under Section 40 of the Act. Reliance was placed by the learned Additional District Judge in this connexion upon the provision of Section 83, Wakf Act, which expressly exempts certain suits and proceedings from the operation of the Act. This position has been challenged before us on behalf of the petitioner, and Mr. Abul Hossain who appears in support of the rule has strenuously contended that Secs.70 and 71, Wakf Act, are retrospective in operation and apply to suits pending at the time when the Act became law. It is also contended that the saving clauses contained in Section 83 of the Act are of no assistance to the parties inasmuch as the rights in this case accrued after the passing of the preliminary decree and thus the suit was not in respect of any right which had its existence prior to coming into force of the Wakf Act. The plaintiffs and the defendants are both united in opposing this Rule and on their behalf the decision of the Additional District Judge is sought to be supported both on general principles as well as on the express provisions of the Act.

(3.) Section 70, Wakf Act, provides that in every suit or proceeding in respect of any wakf, the Court shall issue a notice to the Commissioner at the cost of the party instituting the same. There is nothing in the section from which it could be inferred that the section had in view the suits or proceedings pending at the time when the Act came into force. On the other hand, it is quite possible to construe the words as implying that the costs of the notice are to be realized from the party at the time of instituting of the suit and this presupposes that the suit is instituted after the passing of the Act when the Wakf Commissioner has already been appointed Under Section 71, the Commissioner is given the right to intervene and be added a party to any suit or proceeding by or against a stranger to the wakf or any other person if he so chooses. There can be no doubt that this right to intervene and carry on the litigation is a substantive right and not a mere matter of procedure and this is conceded by the learned advocate who appears for the petitioner. That being so, the general principle of law which is applicable to such cases is well established that the law which exists at the date when an action is commenced must decide the rights of the parties to the suit unless the Legislature express a clear intention to the contrary: vide Young V/s. Hughes (1859) 4 H & N 76, Moon v. Darden (1848) 2 Ex 22, and In re Joseph Suche & Co. (1875) 1 Ch D 48. In the last- mentioned case, a question arose as to the effect of Section 10 of the Judicature Act upon a winding up proceeding which had already commenced and it was said that: When the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.