S. Abdulkani & Others v. Rahmaniapuram Naina Mohammed & Another
2005-04-18
R.BANUMATHI
body2005
DigiLaw.ai
Judgment :- (Civil Revision Petition, filed under Sec.115 against the Judgment and Decree dated 12.10.2004 passed by the Principal District Munsif, Tenkasi in O.S.No.881 of 2004, as stated therein.) This Civil Revision Petition is directed against the Judgment and Decree dated 12.10.2004 passed by the Principal District Munsif, Tenkasi in O.S.No.881 of 2004, dismissing the Suit in O.S.No.881 of 2004 as barred under Sec.85 of the Wakf Act. The Plaintiffs are the Revision Petitioners. 2. O.S.No.881 of 2004:- The Plaintiffs have filed the Suit, representing Safi Sect of Muslims residing in Street Nos.1 to 15, of Rahmaniapuram, Kadayanallur, Case of the Plaintiffs is that the Plaintiffs and the Safi Sect of Muslims residing in Rahmaniapuram Street, Kadayanallur are burying their deads only in Kabersthan (Mayyawadi) situated nearby Rahmaniapuram Naina Mohammed Pallivasal. The Plaintiffs have claimed their right through Agreement dated 19.09.1992 executed by the Secretary of Naina Mohammed Pallivasal (hereinafter referred to as "Suit Pallivasal"). According to the Plaintiffs, for having the right of burying their deads, they have paid a sum of Rs.22,000/- for the development of Mayyawadi in the year 1992. In the Plaint, the suit property is described as the Wakf Property. The Defendants are in management of the Pallivasal and the Mayyawadi. The First Defendant – Mohideen Kani is the Muthavalli; the Second Defendant is the Secretary of the Suit Pallivasal. Case of the Plaintiffs is that the suit Pallivasal and Mayyawadi are for religious purposes. The Plaintiffs and Residents of Street Nos.1 to 15 of Rahmaniapuram Street, Kadayanallur are entitled to bury their deads in the Mayyawadi of the suit Pallivasal. There has been previous litigation in O.S.No.305 of 1988. The Defendants are claiming advantage of the said Decree and denying their lawful rights of the Plaintiffs in burying their deads. The Defendants have no right to collect excessive amount for burying the deads. As per the Holy Kuran, the burial of the Muslim cannot be denied.
There has been previous litigation in O.S.No.305 of 1988. The Defendants are claiming advantage of the said Decree and denying their lawful rights of the Plaintiffs in burying their deads. The Defendants have no right to collect excessive amount for burying the deads. As per the Holy Kuran, the burial of the Muslim cannot be denied. Alleging that on the strength of Decree in O.S.No.305 of 1988, the Defendants are trying to interfere with the right of Safi Sect of Muslims, the Plaintiffs have filed the suit for - (i) declaration that the Plaintiff and other Safi Sect Muslims who are residing in Street Nos.1 to 15 of Rahmaniapuram Street, Kadayanallur are entitled to bury their deads in Mayyawadi of Rahmaniapuram Naina Mohammed Pallivasal ; (ii) for Permanent Injunction, restraining the Defendants from burying the deads of Safi Sect of Muslims in the Mayyawadi and for other reliefs. 3. I.A.No.1389 of 2005:- This Application has been filed for Temporary Injunction in which, the Plaintiffs have obtained Interim Injunction. The Defendants have filed elaborate counter Statement raising serious objection as to the maintainability of the Suit in the Civil Court. According to the Defendants / Respondents, the jurisdiction of the Civil Court is expressly barred under Sec.85 of the Wakf Act. The Defendants have raised the plea that the dispute relates to Wakf Property and only the Tribunal constituted under Sec.83 of the Wakf Act has the power to decide the question. It is further contended that D-1 being the Muthavalli and D-2 being the Secretary of Pallivasal, they are subject to the Rule of Wakf Board and the suit filed in their individual capacity is not maintainable. According to the Defendants, the property in S.No.241-B and 241-C and 4.24 acres was purchased for putting up Pallivasal and Mayyawadi by the Sale Deed dated 17.08.2004. Since the space was insufficient, money was raised from the residents of Street Nos.1 to 3 of Rahmaniapuram Street, Kadayanallur and Peer Mohammed Thaika Street. Further, for raising money, the Pallivasal has constructed shops which had been let out and coconut grow has been raised for raising more funds and that property recognised as the Wakf property by the Wakf Board.
Further, for raising money, the Pallivasal has constructed shops which had been let out and coconut grow has been raised for raising more funds and that property recognised as the Wakf property by the Wakf Board. In the petition before the Wakf Board in Petition No.84 of 1997 and the Appeal in W.L.A.No.4 of 1997/E.5 dated 24.04.2000, the right of the Defendants and the Residents of Street Nos.1 to 3 of Rahmaniapuram Street, Kadayanallur and Peer Mohammed Thaika Street has been recognised. Hence the Plaintiffs are estopped from claiming any right in the suit property. Further, according to the Defendants in the Suit in O.S.No.305 of 1988, the Suit Pallivasal and Mayyawadi have been declared to be the belonging to the residents of Street Nos.1 to 3 of Rahmaniapuram Street, Kadayanallur and Peer Mohammed Thaika Street. The Streets referred to in the Plaint are having the Pallivasal and the Mayyawadi attached to them in Makkanagar Pallivasal, A-1 Iyyikiya Jamath Pallivasal, Sahul Hamedia Pallivasal. On collection of necessary fees, the said Pallivasal and Mayyawadi are burying the deads of all sects of Muslims and the Plaintiffs cannot claim right in the Suit Pallivasal and Kabersthan and not entitled for the relief of declaration and Permanent Injunction sought for in the Suit. Along with the Counter Statement, the Defendants have filed a Petition in I.A.No.1576 of 2004 under Sec.9 C.P.C raising the question as to the maintainability of the Suit. In the said Petition, the Defendants / Respondents have prayed for taking up the question of ouster of jurisdiction, and maintainability of Suit as the preliminary issue. According to the Defendants, the dispute relating to the Wakf Property, the jurisdiction of the civil Court is specifically barred under Sec.85 of the Wakf Act and the Suit is liable to be dismissed for want of jurisdiction. 4. On that petition, the Trial Court has taken up the preliminary issue of maintainability of the Suit. Upon consideration of the submissions of both parties and the provisions of the Wakf Act, learned District Munsif found that the jurisdiction of the Civil Court is expressly barred under Sec.85 of the Wakf Act. The learned District Munsif has also found that only the Wakf Tribunal has the power to determine the dispute and the question or other matter relating to the Wakf Property under the Act and the jurisdiction of the Civil Court is expressly barred.
The learned District Munsif has also found that only the Wakf Tribunal has the power to determine the dispute and the question or other matter relating to the Wakf Property under the Act and the jurisdiction of the Civil Court is expressly barred. Finding in view of Sec.85 of the Wakf Act, the jurisdiction of the Civil Court is completely barred, learned District Munsif found that the Suit cannot also be returned for the presentation of the same to the appropriate forum and dismissed the Suit. 5. Aggrieved over the Judgment and Decree in dismissing the Suit, the Plaintiffs have preferred this Revision Petition. 6. Learned counsel for the Revision Petitioner has submitted that the Plaintiff and other Safi Sect Muslim Residents of Street Nos.1 to 15 of Rahmaniapuram Street, Kadayanallur have right to bury the deads and that as per the Holy Kuran that right cannot be denied to the Plaintiffs. It is further contended that when the Revision Petitioners / Plaintiffs have proved the prima facie case entitling them to bury their deads, learned District Munsif has erred in dismissing the Plaint, invoking Sec.85 of the Wakf Act. Submitting that the grant of Permanent Injunction under the Specific Relief Act is outside the scope of powers of the Tribunal, learned counsel for the Revision Petitioners / Plaintiffs have placed much reliance upon the decision of the learned Single Judge reported in A.M.ALI AKBAR AND ANOTHER ..VS.. KEELAKARAI SOUTH STREET JAMATH MASJID PARIPALANA COMMITTEE AND OTHERS (A.I.R. 2001 S.C. 431). Onbehalf of the Revision Petitioners / Plaintiffs, it is further submitted that the availability of alternative remedy either to approach the Wakf Tribunal or to file the Appeal before the Appellate Court is not a bar for invoking the revisional jurisdiction of this Court, when there is error apparent on the face of record. In support of his contention as the maintainability of the Revision Petition, learned counsel has placed reliance upon the decisions reported in HINDUSTAN PETROLEUM CORPORATION LIMITED ..VS.. C.M.HARIRAJ ( 2002 (1) C.T.C. 742 ), DR.RAVICHANDER ..VS.. KARUNAKARAN AND OTHERS (2000 II M.L.J. 136) and VIDYA NAND SINHA AND OTHERS ..VS.. THE STATE OF BIHAR AND OTHERS (A.I.R. 1976 PATNA 31). The list of persons buried in the Suit Pallivasal Mayyawadi and some of the receipts issued for collecting the fee have been produced in this Revision for consideration. 7.
KARUNAKARAN AND OTHERS (2000 II M.L.J. 136) and VIDYA NAND SINHA AND OTHERS ..VS.. THE STATE OF BIHAR AND OTHERS (A.I.R. 1976 PATNA 31). The list of persons buried in the Suit Pallivasal Mayyawadi and some of the receipts issued for collecting the fee have been produced in this Revision for consideration. 7. Reiterating the averments in the Counter Statement, learned counsel for the Respondents / Defendants has submitted that the Plaintiffs have no inherent right to bury their deads in the Mayyawadi of Suit Pallivasan, learned counsel has submitted that the Suit Property has been purchased only for keeping the dead body of the three streets viz., Street Nos.1 to 3 of Rahmaniapuram Street and Peer Mohammed Thaikka, Kadayanallur and that the Plaintiffs have no right to bury their deads. It is further submitted that when there is serious dispute regarding the right of the Plaintiffs, that dispute is a question relating to the wakf property and is to be determined only by the Wakf Tribunal. Submitting that under Sec.85 of the Act, the jurisdiction of the Civil Court is expressly barred, learned counsel for the Respondents / Plaintiffs has submitted that the Plaintiffs ought to have only approached the Wakf Tribunal before approaching the High Court. It is further submitted that rejection of the plaint is a decree from which only regular appeal lies under Sec.96 C.P.C and that the Revision Petition filed against the Judgment and Decree in O.S.No.305 of 1988 is not maintainable. Contending that the Revisional jurisdiction of Article 227 of the constitution is to be sparingly exercised and in the case of availability of efficacious alternative remedy, the revision filed under Article 227 of the Constitution of India is not maintainable. In support of his contention, learned counsel has relied upon the decision reported in TAMIL NADU STATE TRANSPORT CORPORATION (VILLUPURAM DIVISION II) LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, VELLORE ..VS.. C. DURAI AND ANOTHER ( 2005 (1) M.L.J. 435 ). Submitting that only the Wakf Tribunal is to be approached and the High Court has no jurisdiction to deal with the matter, much reliance is placed upon the decision reported in I.SALAM KHAN ..VS.. THE TAMIL NADU WAKF BOARD ( 2005 (1) M.L.J. 646 ). 8.
C. DURAI AND ANOTHER ( 2005 (1) M.L.J. 435 ). Submitting that only the Wakf Tribunal is to be approached and the High Court has no jurisdiction to deal with the matter, much reliance is placed upon the decision reported in I.SALAM KHAN ..VS.. THE TAMIL NADU WAKF BOARD ( 2005 (1) M.L.J. 646 ). 8. Upon consideration of the submissions by both parties and the materials on record, the main point that arises for consideration is: In the light of the availability of the efficacious alternative remedy (by way of appeal under Sec.96 C.P.C or filing petition before the Wakf Tribunal), whether the Revision Petition filed under Article 227 is maintainable? 9. In the Plaint, the Suit Property has been described as "....bjd;fhrp jhYfh filaey;Yhh; efuhl;rp uFkhdpahg[uj;jpy; ,Ue;J tUk; eapdhKfk;kJ bjhGifg; gs;spa[k; mijr;rhh;e;j ikathoa[k;...." In paragraph (3) of the Plaint, the Suit Property Naina Mohammed Pallivasal and the Mayyawadi is described as the Public Wakf and Wakf Property. The Plaintiffs have averred that the suit property is a Wakf Property intended for worship and for burial of the Dead. The relevant averments in paragraphs 3 and 6 of the Plaint read thus: - "....gs;spfspy; bjhGif bra;tJk; ,we;j rly';fis ikathofspy; ey;ylf;fk; bra;Jk; mijbahl;o ikaj;bjhGiffs; bra;tJk; xt;bthU ,!;yhkpahpd; Religious and Pious fhhpa';fs; MFk;/ gpuhJ jgrpyhd uFkhdpahg[uk; eapdh Kfk;kJ bjhGifg;gs;spa[k; mijr;rhh;e;j ikathoa[k; Public Wakf. Wakf Property is the divine property MFk;...." "....gpuhJ jgrpy; brhj;jhd nkw;go eapdh Kfk;kJ bjhGifg; gs;spa[k; mijr; rhh;e;j ikathoa[k; ,iwtdpd; !;jykhf fUjf;ToaJ/ nkw;go gs;spapy; bjhGk; chpika[k; ,we;jth;fspd; rly';fis ey;ylf;fk; bra;a[k; chpika[k; ,!;yhkpah; midtUf;Fk; cz;L...." Thus, the Plaintiffs have put forth a definite plea stating that the property is a Wakf property and that they are claiming right in the Wakf Property as per the Holy Kuran and that they cannot be deprived of their right. The Plaintiffs have also claimed their right in the Wakf Property through an Agreement dated 19.02.1992 and claimed to have paid Rs.22,000/- to the then Secretary. 10. The claim of the Plaintiffs and other Safi Sect Muslims residing in Street Nos.1 to 15 of Rahmaniapuram, Kadayanallur is categorically denied by the Defendants. In their counter statement, the Defendants have alleged that the property in S.No.241-B, 241-C and 4.24 Acres was purchased by the Sale Deed dated 17.08.1904 for using the same as Mayyawadi for the residents of Street Nos.1 to 3 of Rahmaniapuram and Peer Mohammed Thaikka Street, Kadayanallur.
In their counter statement, the Defendants have alleged that the property in S.No.241-B, 241-C and 4.24 Acres was purchased by the Sale Deed dated 17.08.1904 for using the same as Mayyawadi for the residents of Street Nos.1 to 3 of Rahmaniapuram and Peer Mohammed Thaikka Street, Kadayanallur. The Defendants have denied the right of the Plaintiffs to bury their deads in the Suit Mayyawadi and stated that there are other Pallivasal and other Mayyawadies where the Muslims of all sects could bury their deads. Further, according to the Defendants, the right of the Muslims residents of Street Nos.1 to 3 and Peer Mohammed Thaikka Street have been declared in the decree in O.S.No.305 of 1988. Thus, in view of the claim of right by the Plaintiffs and denial of the same by the Defendants, there is genuine dispute regarding the right in the Wakf Property. Under Sec.83(1) of the Wakf Act, the State Government is empowered to constitute the Tribunals for the determination of any disputed questions or other matter relating to a Wakf or Wakf Property under this Act. Since there is dispute relating to the Wakf Property, learned District Munsif has found that the jurisdiction of the Civil Court is specifically barred under Sec.85 of the Wakf Act and the Suit is not maintainable before the Civil Court. The Impugned Judgment and Decree dismissing the Plaint for want of jurisdiction does not suffer from error apparent on the face of records warranting interference. 11. Elaborate arguments have been advanced by both sides relating to the powers of the Wakf Tribunal. For the purpose of deciding the contentious points, certain provisions of Wakf Act may have to be referred to. Under sub-Section (5) of Section 83, the Tribunal constitution under sub-section (1) of Section 83 shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure while trying a suit or executing a decree or order. The jurisdiction of the Civil Court is specifically barred under Sec.85 of the Wakf Act, 1995. Thus, the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a wakf or wakf property under the Act and acts as a civil Court for all purposes. 12.
The jurisdiction of the Civil Court is specifically barred under Sec.85 of the Wakf Act, 1995. Thus, the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a wakf or wakf property under the Act and acts as a civil Court for all purposes. 12. Learned District Munsif has rightly taken up the question of maintainability of the Suit as the preliminary issue. In disposing of the Suit, the learned District Munsif has held: - (i) Under Sec.75 of the Wakf Act, the jurisdiction of the Civil Court is expressly barred and hence, the Suit is not maintainable in the Civil Court; (ii) Since the jurisdiction of the Civil Court is barred, the Plaint cannot be ordered to be returned for presentation to the appropriate forum. 13. This Court is not here to determine whether the above said impugned Judgment is correct or otherwise. Since the Revision Petition is against the Judgment and Decree passed in O.S.No.881 of 2004, we are only on the question of maintainability of the Revision under Article 227 of the Constitution of India. 14. Having regard to the facts and circumstances and the impugned order, two following things have been available to the Plaintiffs: - (i) Suit has been filed for declaration of their right to bury the dead in Rahmaniapuram Mayyawadi of Naina Mohammed Pallivasal. Since the dispute relates to the question relating to the Wakf Property, only the Wakf Tribunal has the jurisdiction. The Plaintiffs ought to have filed the Petition / Wakf Suit before the Wakf Tribunal / Principal Subordinate Judge, Tirunelveli. Or (ii) If the Revision Petitioners / Plaintiffs still insist that only the Civil Court has jurisdiction, the impugned order / decree, dismissing the suit under Order 7 Rule 11(d) C.P.C is a original decree (as per Sec.2 (2) C.P.C) from which only an Appeal lies under Sec.96 C.P.C in the First Appellate Court. When such efficacious and alternative remedy is available, the Revision Petition filed under Article 227 of the Constitution is not maintainable. 15. In the decision reported in I.SALAM KHAN ..VS..
When such efficacious and alternative remedy is available, the Revision Petition filed under Article 227 of the Constitution is not maintainable. 15. In the decision reported in I.SALAM KHAN ..VS.. THE TAMIL NADU WAKF BOARD ( 2005 (1) M.L.J. 646 ) in a Writ Petition regarding the dispute relating to the Wakf Property, a Divison Bench of this Court has held that when there is an alternative efficacious remedy under the Wakf Act, the party must resort to that remedy before approaching the High Court. The Division Bench has also expressed concern as to how entertaining writ petitions straight away in the High Court has caused immense difficulties in the High Courts in adding to the huge arrears. We may usefully refer to the observation of the Divison Bench of this Court, which held thus: - "...No doubt, alternative remedy is not an absolute bar to the filing of writ petitions, but at the same time it is well settled that writ jurisdiction is discretionary jurisdiction and when there is an alternative remedy, ordinarily a party must resort to that remedy first before approaching this Court. Entertaining writ petitions straight away without insisting that a party should first avail of the alternative remedy is an over liberal approach which has caused immense difficulties to the High Courts in the country because they have added to the huge arrears. The Courts have already become overburdened by this over liberal approach instead of following the settled legal principle that a writ petition should ordinarily be dismissed if there is an alternative remedy. The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and such kind of over liberal approach has only multiplied this problem manifold. If this approach is further continued a time will surely come when the High Courts will find it impossible to function. All this has happened because unfortunately some Courts have departed from well settled legal principles". The above observation and finding squarely applices to the case in hand. The Revision Petition filed invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India is not maintainable, in view of efficacious alternative remedies. 16.
All this has happened because unfortunately some Courts have departed from well settled legal principles". The above observation and finding squarely applices to the case in hand. The Revision Petition filed invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India is not maintainable, in view of efficacious alternative remedies. 16. Learned counsel for the Revision Petitioners / Plaintiffs has placed very much reliance upon the decision of the Single Judge of this Court (D.MURUGESAN, J.) reported in A.M.ALI AKBAR AND ANOTHER ..VS.. KEELAKARAI SOUTH STREET JAMATH MASJID PARIPALANA COMMITTEE AND OTHERS (A.I.R. 2001 S.C. 431) wherein learned Single Judge has considered the scope of the Tribunal's jurisdiction to entertain petition seeking temporary or permanent injunctions restraining the opposite party from holding elections. While examining such question, the learned Judge referred in detail various provisions of the Wakf Act, 1995 and said, thus, "As per theauthority of the commentary on the Law of Wakf in India, Dr.Ahmedullah Khan, the types of the Wakfs and the essentials of a valid Wakf are as follows: "The learned Judge has extracted from the text from the above mentioned book relating to types of Wakfs and essentials of a valid Wakf. (Para 11). Then, the Court further observed, thus: "Where petition was filed by members of Jamath seeking for permanent injunction restraining the opposite party from interfering in their management of the Jamath, and for temporary injunction restraining them from holding the elections, the Tribunal constituted under Sec.83(1) would have no jurisdiction to entertain the petition, to grant temporary injunction. 17. In the said case, onbehalf of the Revision Petitioner, contention has been raised that in view of Sec.83(5), it is clear that the Tribunal shall be deemed to be a civil Court while trying a suit or executing a decree or order thereby indicating that the Tribunal is not a Civil Court. The power to grant injunction vested with the Civil Court only under Order 39 of C.P.C to grant Temporary Injunction. It has been contended that when the provisions of Specific Relief Act are not made applicable to the Tribunals constituted under Sec.83(1) of the Act, the Petition filed for a relief of permanent injunction shall be outside the scope of the powers of the Tribunal. That contention has been accepted by the learned Single Judge.
It has been contended that when the provisions of Specific Relief Act are not made applicable to the Tribunals constituted under Sec.83(1) of the Act, the Petition filed for a relief of permanent injunction shall be outside the scope of the powers of the Tribunal. That contention has been accepted by the learned Single Judge. Accepting that contention, learned Judge has further observed thus:- "....None of the provisions of the Act either expressly or impliedly empowers the Tribunal to entertain, adjudicate upon and decide a petition for permanent injunction. Section 85 of the Act also does not specifically bar the jurisdiction of Civil Court to entertain a suit for injunction. ....For all the reasons, I do hold that the Tribunal constituted under Section 83(1) of the Act, 1955 shall have no jurisdiction to entertain a petition seeking for permanent injunction restraining the petitioners herein from interfering in their management of the Jamath and consequently granting temporary injunction restraining the revision petitioners from holding the election is also unsustainable....." 18. In the factual circumstances and background of the case, learned Judge has observed that the Wakf Tribunal has no jurisdiction to grant permanent injunction and that applicability of the provisions of Specific Relief Act is not specifically stated. With respect, this Court is unable to apply the said decision to the facts in the case in hand. 19. It is relevant to note that there is no specific bar for the Wakf Tribunal to grant permanent injunction under the Specific Relief Act. To elaborate the same, it is pertinent to note that the Wakf Tribunal has not been given any powers to suspend or stay the proceedings of the Wakf Board. Therefore, Sec.6(2), Sec.67(4) and Sec.69(3) specially provided that the Wakf Tribunal shall have no power to suspend or stay any proceedings of the Wakf Board. But, no such bar is imposed on Wakf Tribunal under Sec.83 to issue Injunction Interim or otherwise. As per Sec.83(5) of the Act, the Wakf Tribunal shall be deemed to be a Civil Court and shall have powers as has been exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order.
As per Sec.83(5) of the Act, the Wakf Tribunal shall be deemed to be a Civil Court and shall have powers as has been exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order. For trying the Suit when the Wakf Tribunal is deemed to be the Civil Court all substantive laws of the Land viz., Specific Relief Act, Transfer of Property Act, Registration Act and all other substantive laws are applicable to the Wakf Tribunal for determination of any disputed question or other matter relating to a Wakf or Wakf Property. The Legislature / Parliament cannot be expected to have enumerated all the list of substantive laws like the Specific Relief Act and other laws being applicable to the Wakf Tribunal, which shall be deemed to be a Civil Court for determination of the dispute relating to the Wakf or Wakf Property. 20. The power to grant Injunction – interim or permanent injunction could be inferred by a combined reading of Secs.83(5) and 83(9) of the Act. Sec.83(5) says that the Tribunal shall be deemed to be a Civil Court and shall have powers as has been exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order. Sec.83(9) reads as follows:- "...No appeal shall lie against any decision or order whether interim or otherwise given or made by the Tribunal. Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit...." (underlining added) The words "...order whether interim or otherwise given or made by the Tribunal..." clearly suggest conferment of the power on the Wakf Tribunal to grant Interim Injunction or otherwise / Permanent Injunction. The contention of the Revision Petitioners / Plaintiffs that the Wakf Tribunal has no jurisdiction to grant permanent injunction and that the Civil Suit is maintainable in the Civil Court has no merits. 21.
The contention of the Revision Petitioners / Plaintiffs that the Wakf Tribunal has no jurisdiction to grant permanent injunction and that the Civil Suit is maintainable in the Civil Court has no merits. 21. Much arguments have been advanced that the power to determine the dispute relating to Wakf or Wakf property is not the exclusive province of the Tribunal and that the Suit for grant of permanent Injunction and Declaration cannot be dismissed as not maintainable in the Civil Court. Learned counsel for the Revision Petitioners / Plaintiffs has very much harped on the point of maintainability of the Civil Suit and the error apparent on the face of record in dismissing the suit in O.S.No.881 of 2004 for want of jurisdiction. For the sake of arguments, let us assume that the Suit is maintainable in the Civil Court and that there had been erroneous rejection of the Plaint. Order 7 Rule 11 C.P.C deals with Rejection of the Plaint. Order 7 Rule 11(d) C.P.C deals with the Rejection of the Plaint for want of jurisdiction, which reads as follows: - "...where the suit appears from the Statement in the Plaint to be barred by any law..." By the impugned Judgment, learned District Munsif has held that the Suit is barred under Sec.85 of the Wakf Act. The Judgment dismissing the suit for want of jurisdiction is a decree within the meaning of Sec.2(2) C.P.C which reads thus:- "...."decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a Plaint and the determination of any question within Sec.144..." (Underlining added) Thus, the impugned Judgment passed by the learned District Munsif is a Decree within the meaning of Sec.2(2) C.P.C. 22. Sec.96 C.P.C provides for an Appeal from Original Decree. Under Sec.96, an "...Appeal shall lie from every Decree passed by any Court, exercising original jurisdiction...." Thus, under Sec.96 C.P.C as against the Impugned Judgment rejecting the Plaint, only an appeal ought to have been filed in the First Appellate Court viz., Sub-Court, Tenkasi.
Sec.96 C.P.C provides for an Appeal from Original Decree. Under Sec.96, an "...Appeal shall lie from every Decree passed by any Court, exercising original jurisdiction...." Thus, under Sec.96 C.P.C as against the Impugned Judgment rejecting the Plaint, only an appeal ought to have been filed in the First Appellate Court viz., Sub-Court, Tenkasi. When such efficacious alternative remedy is available under the Code of Civil Procedure, this Revision Petition filed under Article 227 of the Constitution of India is not maintainable. The High Court in exercise of the power under Article 227 of the Constitution of India cannot permit the parties to by-pass such efficacious alternative remedy. 23. Contending that the existence of an alternative remedy is no bar for entertaining the Application under Articles 226 and 227 of the Constitution of India, learned counsel for the Revision Petitioner / Plaintiffs submitted that the power to grant relief under Article 227 is discretionary and when there is erroneous exercise of jurisdiction in the case in hand, the High Court is to exercise the revisional jurisdiction to set aside the Impugned Judgment. In support of his contentions, learned counsel has relied upon the decisions reported in VIDYA NAND SINHA AND OTHERS ..VS.. THE STATE OF BIHAR AND OTHERS (A.I.R. 1976 PATNA 31) and SRI PALANI DHANDAYUTHAPANI DEVASTHANAM ..VS.. THE COMMERCIAL TAX OFFICER (2002 I L.W. 318). The above decisions arise out of the Writ Petition filed under Article 226 of the Constitution of India and the same cannot be applied to the case in hand, which arises out of the Revision preferred under Article 227 of the Constitution of India. In yet another decision relied upon by the Revision Petitioner reported in HINDUSTAN PETROLEUM CORPORATION LIMITED ..VS.. C.M.HARIRAJ ( 2002 (1) C.T.C. 742 ), the powers of the High Court under Article 227 of the Constitution of India has been elaborately discussed in which learned Single Judge has held thus:- "....Power of general superintendence vested with High Court has to be used sparingly and with extreme caution. Such powers can be invoked when authority whose order is challenged lacks jurisdiction or erroneously assumes jurisdiction or where he exceeded jurisdiction or when he refused to exercise jurisdiction.
Such powers can be invoked when authority whose order is challenged lacks jurisdiction or erroneously assumes jurisdiction or where he exceeded jurisdiction or when he refused to exercise jurisdiction. Such power can be invoked in cases where there is grave dereliction of duty or flagrant violation of law or error of law apparent on face of record or where principles of natural justice are violated or where perverse findings are rendered or where subordinate authority has acted arbitrarily or capriciously. Order of Trial Court rejecting Plaint without even numbering same on ground that first defendant had no privity with Plaintiff set aside...." In the said decision, the High Court has exercised the power under Article 227 of the Constitution where the Trial Court has rejected the Plaint without even numbering the same on the ground that the First Defendant had no privity with the Plaintiff. But, in the case, learned District Munsif has heard both sides and upon considerations and submissions regarding the bar of jurisdiction under Sec.85 of the Wakf Act has held that the jurisdiction of the Civil Court is expressly barred and dismissed the Suit. It is not a case of erroneous exercise of jurisdiction in dereliction of duty warranting interference under Article 227 of the Constitution of India. Hence, on the above decision, Revisional Jurisdiction under Article 227 cannot be invoked. 24. The Revisional Power under Article 227 of the Constitution of India is exercised by the Court in its discretion and cannot be claimed as of right by the party. The High Court's power of revision under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly, in cases where grave injustice would be done unless the High Court interferes. It cannot be used as Appellate or Revisional power. 25. The jurisdiction under Article 227 of the Constitution is supervisory and not appellate. Sitting under Article 227 of the Constitution of India, the High Court has no jurisdiction to go into the questions of fact in appreciation of the evidence. Multi-fold contentious points have been urged both by the Revision Petitioners and the Respondents. According to the Petitioners / Plaintiffs, they have entered into Agreement in the year 1992. By the Agreement dated 19.02.1992, they have paid a sum of Rs.22,000/- to the then Secretary and Muthavalli.
Multi-fold contentious points have been urged both by the Revision Petitioners and the Respondents. According to the Petitioners / Plaintiffs, they have entered into Agreement in the year 1992. By the Agreement dated 19.02.1992, they have paid a sum of Rs.22,000/- to the then Secretary and Muthavalli. Thus, pursuant to the Agreement, the Plaintiffs are claiming right for keeping the Deads of Safi Sect Muslims residing in Street Nos.1 to 15 of Rahmaniapuram Street, Kadayanallur. The Plaintiffs have also produced the list of dead persons buried in the said Mayyawadi. Few receipts have also been produced showing the burial. Drawing the attention of the Court to the documents filed, learned counsel for the Plaintiffs has submitted that the documents produced by the Plaintiffs would conclusively establish their Right in the Suit Pallivasal and Mayyawadi and that the Trial Court has grossly erred in saying that there is dispute relating to the Wakf / Wakf Property, which is to be determined only by the Tribunal and has erred in dismissing the Suit. In the Counter Statement in I.A.No.1389 of 2004, the Defendants have stoutly denied the right of the Plaintiffs to bury their deads in the Mayyawadi. The Defendants have referred to the previous litigation in O.S.No.305 of 1988 and other proceedings before the Wakf Board. The Defendants have also raised to the other factual aspects regarding the collection of money from the Residents of Street Nos.1 to 3 of Rahmaniapuram Street, Kadayanallur. Thus, on the basis of the facts, serious contentious points have been urged by the Defendants regarding the right of the Plaintiffs. The merits of the rival contentions is pure appreciation of facts and the evidence adduced or to be adduced by the parties, which requires to be elaborately considered. Article 227 of the Constitution of India does not contemplate such appreciation of facts and elaborate consideration of the evidence. 26. Power under Article 227 of the Constitution of India is an extraordinary; it is to be sparingly used. The Revision Petitioner / Plaintiff has instituted the suit, which has been dismissed for want of jurisdiction. As discussed earlier, only a regular appeal lies before the First Appellate Court when the specific alternative remedy is provided for under the Civil Procedure Code or through the Wakf Tribunal. The Revision filed under Article 227 of the constitution of India cannot be entertained. 27.
As discussed earlier, only a regular appeal lies before the First Appellate Court when the specific alternative remedy is provided for under the Civil Procedure Code or through the Wakf Tribunal. The Revision filed under Article 227 of the constitution of India cannot be entertained. 27. In view of the efficacious alternative remedy either through the Wakf Tribunal or by filing the Appeal before the First Appellate Court, this Revision Petition filed under Article 227 of the Constitution of India is not maintainable. 28. For the reasons stated above, this Revision Petition is dismissed as not maintainable. Since the main Civil Revision Petition is dismissed, the Petition in V.C.M.P.No.45 of 2005 is allowed and the Interim Injunction granted in C.M.P.No.764 of 2005 on 28.01.2005 is vacated. C.M.P.No.764 of 2005 is dismissed. In the circumstances of the case, there is no order as to costs.