SYED AMIR HOSSAIN Vs. MRS. NADERA RAHMAN

JUDGEMENT

(1.) In this appeal by special leave at the instance of a Mutwalli, removed from office under section 32 of the Waqf Ordinance, the main question is whether the revision under section 115 of the Civil Procedure Code against the District judge's order in appeal is maintainable when the Waqf Ordinance provides, in section 32 (2), for a special forum of revision. Secondly, in case the revisional application filed under section 15 C.P C. as disposed of by the High Court Division is treated as a revision under section 32 (3) of the Waqf Ordinance, whether the petitioner who is now respondent before, us is entitled, under section 14 of the Limitation Act, to exclude for the purpose of computing the limitation the time of 4 years which she spent in prosecuting another civil proceeding in a wrong forum.

(2.) Respondent, Mrs. Nadera Rahman was appointed Mutwalli of the Saleha Khatun Waqf Estate bearing E.G. No.510 and 1511-A, by the Administrator of Waqf in 1964 on the recommendation of the previous Mutwalli, her father, Syed Muhammad Hossain who resigned the office on certain grounds. One of her brother namely the appellant Syed Amir Hossain made an application before the Administrator of Waqf for her removal from the office of the Mutwalli on the ground of her utter negligence in managing and looking after the affairs of the Waqf Estate since she was residing all along with her husband, a Government Officer, in different places of the then Pakistan including Karachi. In due course she received a notice of the allegation and filed an objection before the Administrator denying the allegation. But the Administrator after hearing the parties and perusing documents and considering a report of inquiry passed an order on 1 November 1974 removing her from the office of Mutwalli. She challenged this order of her removal before the District Judge, Barishal by filing an appeal being Miscellaneous Appeal No. 186 of 1974. The learned District Judge after hearing the parties dismissed the appeal by an order dated 25 May 1976.

(3.) Respondent, Mutwalli filed a review petition being Miscellaneous Case No. 39 of 1976 under Order 47 of the Civil Procedure Code before the District Judge seeking review of his order dismissing the appeal but the said review petition was dismissed for default on 10 August 1977 whereupon she filed revisional applicationCivil Revision No.1429 of 1979in the High Court Division. A learned Single Judge of the High Court Division by an order dated 2 July 1977 rejected the application with an observation that the petitioner might seek remedy before the District Judge under Order XLVII, rule 7(2) of the Civil Procedure Code. Accordingly, she filed an application under rule 7(2) of Order XLVII. C.P.C being Miscellaneous Case No. 32 of 1979 before the District Judge for restoration of her review petition taking the ground that when the said application was taken up for hearing her lawyer was prevented from attending the Court by his pre occupation with a municipal election. The learned District Judge rejected the application on a number of grounds including the ground as to limitation. She then filed another revisional application, being Civil Revision No.1500 of 1980, under section 115 C.P.C. before the High Court Division challenging the original order of the District Judge dismissing her appeal on 25, May 1976. The learned Judges of the High Court Division, overruling the contention of the other party namely, the appellant before us, that the revisional application was not maintainable tinder the Civil Procedure Code and that it was barred by limitation, allowed the revisional application and set aside the District Judge's order in appeal as well as the Administrator's order removing the Mutwalli, by the impugned order dated May 31 1983. Leave was taken from us by the appellant calling in question this order of the High Court Division.