Moideen Pillai v. T K Kader Rowther — 1991 DIGILAW 436 (KER)

JUDGMENT 1. Plaintiffs are the appellants. Suit was one for setting aside Ext. A-1 order of the 5th defendant and for other reliefs. 2. The facts can be summarised as follows: Plaintiffs alleged that, the Puthiripadam Mosque and the plaint schedule property is part of the properties of Puthukode Mosque and the Puthukode Mosque has got exclusive right of Management. Plaintiffs auctioned the right to cut and remove certain trees standing in plaint schedule property. The successful bidder felled few trees. Defendants 1 to 4 initiated proceedings under S.145 of the Criminal Procedure Code; the decision therein was in favour of the plaintiffs. Therefore, defendants 1 to 4 instituted O. S.213 of 1957. The suit was decreed negativing the right of the present plaintiffs. Plaintiffs preferred A. S.73/1967. The appellate court reversed the decision of the Trial Court and dismissed the suit. Against the said decision, plaintiffs preferred S. A. 268 of 1971. By Ext. B-l judgment this court directed the 5th defendant Wakf Board to decide the right of management and to make provision for proper administration of the Wakf. The court also directed the Board to issue such interim directions as are necessary in its opinion to promote the interest of the Wakf. Thereupon, defendants 1 to 4 filed petition No. 5 of 1971 before the 5th defendant, the Wakf Board. By order dated 17th February 1973 the Wakf Board decided that the income should be shared by the Puthukode Mosque and Puthiripadam Mosque in the ratio of 40:60. Plaintiffs and defendants challenged the said order by filing two Original Petitions before this court; O.P. Nos.1452/1973 and 2048/1973. By Ext. B-2 judgment the impugned order was quashed and the 5th defendant was directed to go into the matter afresh and decide as to whether the plea of the four mahals that they had joint right to manage the Puthiripadam Mosque is correct or whether the right of management exclusively vested with one of the Puthukode Mosque, and based upon the said decision consequential matters such as settlement of administration including settlement of scheme were also directed to be made. Pursuant to the same the: 5th defendant passed Ext. A-l order. In Ext. Pursuant to the same the: 5th defendant passed Ext. A-l order. In Ext. A-l order the 5th defendant found the properties in question are to be managed independently by constituting a committee to be elected from the Muslim inhabitants of four Amsoms under the scheme to be finalised, that the Puthukode mahal does not have any right of management of the Wakf, that the right to have the burial of dead bodies from all the four mahals will continue as before without resistance, and that Puthiripadam Mosque will alone have the right to have the amounts in deposit utilised for its purpose subject to the sanction from the 5th defendant. Ext. A-1 was challenged by plaintiffs in O. P. 2864 of 1977; that O. P. was dismissed at the admission stage by Ext. B-3 judgment. Against the said decision plaintiffs preferred Writ Appeal No. 345 of 1977; that was also dismissed by Ext. B-4 judgment. Thereafter, the plaintiffs instituted this suit for setting aside Ext. A-1 and for other reliefs. 3. Defendants 1 to 4 contended that the suit is not maintainable, that the Puthiripadam Mosque came into existence beyond living memory. Plaint property belongs to the muslim inhabitants of four villages of Cannanore Pattola, Kannambra, Puthukode and Manhapra. The Puthiripadam mosque is situated in Cannanore Pattola. According to the said defendants mosque and the property had never been in the exclusive possession or management of Puthukode mosque, and that suit is not maintainable. 4. The lower court dismissed the suit on two grounds. It held that the suit is not maintainable under S.15(3) of the Wakf Act, 1954 (for short 'the Act'), and that Exts. B-2 and B-3, would operate as res judicata against the contentions of the plaintiffs. 5. Learned counsel for the appellants challenged both the findings. It was contended that Ext. B-3 and Ext. B-4 will not operate as res judicata. According to the learned counsel, Ext. B-4 cannot operate as res judicata as the said writ appeal was dismissed at the admission stage by a non speaking judgment; and Ext. B-3 also cannot operate as res judicata since the original petition too was dismissed at the admission stage without going into the merits of the rival claims. The suit being one for declaration of the title also, according to the learned counsel, is maintainable independently of the Act. B-3 also cannot operate as res judicata since the original petition too was dismissed at the admission stage without going into the merits of the rival claims. The suit being one for declaration of the title also, according to the learned counsel, is maintainable independently of the Act. On the other hand the learned counsels for the defendants maintained that, in spite of the fact that Ext. B-3 was rendered at the admission stage since the dismissal of the O. P. was by a speaking order, the same would operate as res judicata. It was also contended that, in the circumstance no question of title can arise as the character of the property as wakf is not disputed. 6. The judgment of the court under Art.226 of the Constitution would operate as res judicata in a subsequent civil suit on the same matters in the controversy between the same parties (State of Punjab v. B.D. Kaushal) AIR 1971 SC 1676 . As has noted, the contention of the defendants is, since Ext. B-3 does not consider the merits of the claim and was without contest cannot operate as res judicata; and the appeal therefrom was dismissed by a non speaking order, Ext. B-4 too cannot bar the contentions of the plaintiffs by reason of res judicata. A Bench of five Judges in the decision in Daryao v. State of U.P. AIR 1961 SC 1457 considered the question whether a decision on a writ petition under Art.226 could operate as res judicata against a petition under Art.32. The court held: "We hold that if a writ petition filed by a party under Art.226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art.32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. It would not be open to a party to ignore the said judgment and move this Court under Art.32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art.226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art.32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art.32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend Upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner "was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there Was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult arid unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art.32." On the basis of this decision the learned counsels for the defendants contended, since Ext. B-3 O. P. was not dismissed on the ground of laches or on the ground that there was alternative remedy, the same would operate as res judicata. According to them since the petition was dismissed by a speakiag order, it would operate as res judicata. B-3 O. P. was not dismissed on the ground of laches or on the ground that there was alternative remedy, the same would operate as res judicata. According to them since the petition was dismissed by a speakiag order, it would operate as res judicata. In the decision in Workman) C. P. Trust v. Board of Trustees AIR 1978 SC 1283 this question again came up for consideration. In that case an industrial dispute was referred to industrial Tribunal, the Tribunal gave an award in favour of the workmen. The employers filed Special Leave petition under Art.136 before the Supreme Court challenging the award of the Tribunal, but that was dismissed. No reason for dismissal was given in the order. Thereafter the employers filed writ petition under Art.226 before the High Court. The writ petition was allowed. In the writ appeal it was urged that the order of dismissal in the Special Leave Petition would operate as res judicata. After holding that the principles of res judicata is applied to various kinds of proceedings other than suits also, and that in certain situations the principles of not only direct res judicata but of constructive res judicata also is applied, the court held: "But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work.................. If the Writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Art.32 or Art.136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other "proceedings obviously will not be barred on the principle of res judicata. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other "proceedings obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non speaking one word-order 'dismissed', another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata." Thus, though a previous dismissal at the threshold or in limine even by a non speaking order would be a bar for another writ petition on the same cause of action; it is clear, when the writ petition is dismissed either on the threshold or after contest without expressing any opinion on the merits of the matter, the remedy of suit or other proceedings will not be barred. This decision considered the effect of the decision in Daryao's case and adverting to the applicability of principles of res judicata stated: "We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action". What is to be noted is, this decision considered the effect of a decision under Art.226 with reference to the application of the principles of res judicata to a subsequent writ petition and other proceeding such as suit and pointed out the difference in the case of writ petition and suit and other proceedings. The decision in Daryao's case AIR 1961 SC 1457 was considered in the said decision. This question arose again in the decision in Pujari Bai v, Madan Gopal AIR 1989 SC 1764 . In that the plaintiff was the appellant in a suit for declaration with respect to a property which was the subject matter of a proceeding before the 'Consolidation Officer'. Against the order of the Consolidation Officer, there was an appeal before the Assistant Director, Consolidation. The order of the Assistant Director, Consolidation was challenged by the appellant in a writ petition which was rejected by the High Court in limine with one word 'dismissed'. After the dismissal of the writ petition, the appellant instituted the said suit. It was contended that, the decision in the writ petition would operate as res judicata. After adverting to the decision in Workmen of G. P. Trust's case AIR 1978 SC 1283 in Para.24 it is held: "It thus becomes clear that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy." . Thus the decisions in Workmen of C. P. Trust's case AIR 1978 SC 1283 and the decision in Pujari Bai's case AIR 1989 SC 1764 would indicate when a writ petition is dismissed either at the threshold or after contest, without expressing any opinion on the merits of the matter the same cannot operate as res judicata against a remedy by suit. But the learned counsel for the respondents relied on the decision in Mattulal v. Radhe Lal AIR 1974 SC 1596 and contended that, the decision of the larger Bench in Daryao v. State of U.P. AIR 1961 SC 1457 must be preferred to the later two decisions. The assumption that there is conflict as to. the scope and applicability of the principles of res judicata in the said two decisions is not correct. The assumption that there is conflict as to. the scope and applicability of the principles of res judicata in the said two decisions is not correct. This is particularly so as in the decision in Workmen, C. P. Trust's case AIR 1978 SC 1283 the decision in Daryao's case AIR 1961 SC 1457 was considered and the meaning and effect of that decision was analysed and applied. When the later decision identified and understood the effect and meaning of an earlier decision in a particular manner, the effect and meaning so understood should prevail. 7. Though Ext. B-3 is not a non speaking order, the same cannot operate as res judicata, not only because the O. P. was dismissed at the admission stage, it does not express anything on the merits of the rival claims. In Ext. B-3 after adverting to the events that preceded the filing of the writ petition, the same was dismissed observing: "I do not think that I am called upon to reappraise or reappreciate the evidence and come to a different conclusion. It is only necessary to point out that the decision as aforesaid by the 6th respondent cannot be said to be not supported by any material at all, nor am I prepared to say that the order is vitiated by errors of law apparent on the face of the records. Dismissed." 8. The jurisdiction under Art.226 of the Constitution is discretionary and the court does not act as a court of appeal or revision because the jurisdiction is only supervisory. It is also not an alternate remedy for a relief that could be obtained by a suit. The court does not in a proceeding under Art.226 determine questions which demand an elaborate examination of evidence to establish the right. The court would interfere when the determination by the authority is mala fide or is prompted by extraneous consideration or is in contravention of the principles of natural justice or the same is against any constitutional provision. When Ext. B-3 is understood with due regard to the nature of the jurisdiction exercised under Art.226, it cannot be said that Ext. B-3 expresses any opinion on the merits of the claim. When Ext. B-3 is understood with due regard to the nature of the jurisdiction exercised under Art.226, it cannot be said that Ext. B-3 expresses any opinion on the merits of the claim. The decision in State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006 held that, the special remedy provided under Art.226 is not intended to supersede completely the modes of obtaining relief through a civil court. Thus Ext. B-3 cannot operate as res judicata; Ext. B-4 too cannot operate as res judicata as the writ appeal was dismissed in limine and the same is not a speaking order. In that view it is unnecessary to go into the further contention by the learned counsel for the plaintiffs on the basis of the decision in Thambi v. Mathew 1987 (2) KLT 848 that since there is no merger of Ext. A-l with Ext. B-3; as Ext. B-3 O. P. was dismissed in limine, there could be no res judicata. Therefore the view of the lower court that the contention of the plaintiffs is barred by res judicata by reason of Ext. B-3 judgment cannot be supported. 9. Now the other question for consideration is as to the maintainability of the suit. As has noted, the contention of the learned counsel for the plaintiffs is, the suit being one for declaration of title, is maintainable in civil court. The learned counsel relied on the decision in Kerala Wakf Board v. Alam Aboobaker Salt 1987 (1) KLT 313 in support of the said contention. He also relied on the decision in Smt. Isabella Johnson v. M. A. Susai AIR 1991 SC 993 to maintain that Exts. B-1 arid B-2 cannot be a bar against the maintainability of the suit. The contention by defendants 1 to 5 is, a suit of this nature is not maintainable after the Board has passed Ext. A-1 order. According to them the order of the Board under S.15(1) and (2) of the Act can be questioned only under S.15(3) if the conditions therein are satisfied. According to them since the conditions in S.15(3) is not satisfied, the suit is not maintainable. 10. The B prayer in the plaint is for a declaration that Puthiripadam mosque and the A schedule are part of the properties of Puthukode mosque and that the Puthukode mosque had exclusive right of management. According to them since the conditions in S.15(3) is not satisfied, the suit is not maintainable. 10. The B prayer in the plaint is for a declaration that Puthiripadam mosque and the A schedule are part of the properties of Puthukode mosque and that the Puthukode mosque had exclusive right of management. In this context it is necessary to note as to what Exts. B-l and B-2, directed. In Ext. B-l this court said: "In the result, I think it is unnecessary to decide the dispute regarding the right of management as between the plaintiff and the defendants in this appeal. On the other hand, both sides have agreed that now that the Wakf Board has entered appearance the Board may be directed, in exercise of its functions under S.15, to decide the dispute regarding the management in this case and other allied matters. Apart from directing the Board to decide the right of management and to make provision for the proper administration of the Wakf, I also direct the Board to issue such interim directions as are necessary in its opinion to promote the interests of the Wakf, with special reference to the timber trees, if appropriately moved by either party, and of course, after hearing both sides. Subject to the above direction, I dismiss the appeal". Ext. B-2 clarified the directions in Ext. B-l as follows: "Therefore in terms of the decision of this court the Board was called upon to decide: (i) Whether the plea of the 4 mahals that they had joint right to manage the Puthirippadam mosque should succeed or whether the right of management was to be found to be exclusively in one of them, namely the Puthukode mosque ? (ii) How the further administration was to be done had to be settled in the light of such decision ? (iii) Any incidental and allied matters may have to be decided as the circumstances may necessitate. The parties actually wanted settlement of a scheme and since that was within the powers of the Board it could have granted it as a consequential relief. and (iv) Interim direction as to the disposal or removal of the teak wood trees and timber and such other matters that may be called for in order to safeguard the interests of the Puthirippadam mosque during the pendency of the dispute". Ext. and (iv) Interim direction as to the disposal or removal of the teak wood trees and timber and such other matters that may be called for in order to safeguard the interests of the Puthirippadam mosque during the pendency of the dispute". Ext. B-1 itself shows the Board was directed to decide the matter as per S.15 of the Act. The Board passed Ext. A-l order. As has already noticed Ext. B-l said that the Puthirippadam mosque and its properties are separate entity to be managed by Constituting Committee to be elected from among the Muslim inhabitants of the four amsoms as per the scheme to be finalised. Ext. A-l also said the draft scheme will be prepared and published within a month from the date of Ext. A-l that the amount in deposit and income shall be utilised as per the decision of the Committee to be constituted under the scheme. Ext. A-1 order says the Puthukode Mahal shall not have any right of management. 11. There can be no dispute that the Board has the power to take a decision as to matters falling under S.15 of the Act and the direction in Exts. B-1 and B-2 is consistent with the same. Ext. A-1 is within the power of the Board. What is to be noticed is Ext. A-1 does not settle the scheme, the direction as to utilization of the income is also to be as per the decision of the committee to be constituted as per scheme to be settled. The Board is competent under S.15 of the Act to take a decision to settle schemes for management, and can make appropriate direction for the administration of the Wakf. In the circumstance, the scope of the suit is such that the same concerns only the question of right of management and administration of the Wakf. Where Board has settled a scheme under S.15 (2) (d) of the Act or has made direction under S.15(2) (e) any person interested or affected by the same can institute a civil suit for setting aside the same under S.15 (3) of the Act. S.15(2)(d) empowers the Board to settle schemes for management for. Where Board has settled a scheme under S.15 (2) (d) of the Act or has made direction under S.15(2) (e) any person interested or affected by the same can institute a civil suit for setting aside the same under S.15 (3) of the Act. S.15(2)(d) empowers the Board to settle schemes for management for. Wakf, and S.15(2)(e)(i) empowers the Board to direct utilization of surplus income and sub clause (ii) empowers to direct in what manner the income of the Wakf should be utilised where objects of the Wakf are not evident from any written instruments. 12. From Ext. A-1 it is clear that no scheme is settled. Despite the fact that. Ext. A-1 stated the Puthirippadam mosque alone will have the right to utilise the amount in deposit for its purpose; it stated the amounts in deposit and future income has to be utilised as per the decision of, the Committee to be constituted under Scheme. That means, the manner of utilization is to be decided by the Committee. Since the direction as to the utilization of income has nexus with the constitution of the committee as per the scheme, and the scheme, as noted, is yet to be settled, Ext. A-l in the circumstance being preliminary to settlement of scheme cannot be challenged under S.15 (3) of the Act. In this connection it is necessary to note that, the power of the Board to issue interim directions pending the proceedings is noticed in Exts. B-l and B-2. In the circumstance when the settlement of a scheme is pending under S.15 of the Act a suit of this nature is not maintainable under S.15(3) of the Act. In the decision in Kerala Wakf Board's case 1987 (1) KLT 313 arose under S.42 of the Act. The decision has no application to the facts of this case. The decision in Isabella Johnson's case AIR 1991 SC 993 held that a court which has no jurisdiction cannot be conferred with jurisdiction by applying the principle of res judicata. As has noted, the Board has jurisdiction to determine matters that fall under S.15 of the Act; then a challenge against such determination on any ground is possible only as provided under S.15(3) of the Act. The said decision also has no application in the present circumstances. The suit is not maintainable. As has noted, the Board has jurisdiction to determine matters that fall under S.15 of the Act; then a challenge against such determination on any ground is possible only as provided under S.15(3) of the Act. The said decision also has no application in the present circumstances. The suit is not maintainable. Thus it is clear that the appeal is liable to be dismissed. In the result the appeal fails and the same is dismissed.