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Himachal Pradesh High Court · body

2006 DIGILAW 410 (HP)

H. P. WAKF BOARD v. VINOD KUMAR

2006-12-23

V.M.JAIN

body2006
JUDGEMENT V.M. Jain, J.: This revision petition under Section 83(9) of the Wakf Act, 1995 read with Article 227 of the Constitution of India has been filed by the petitioner Board, against the orders 11.12.2003 and 21.7.2003 passed by the Wakf Tribunal, Dharamshala. 2. The facts which are relevant for the decision of the present revision petition, are that the petitioner Board had filed a petition under Section 14 of the H.P. I Urban Rent Control Act, 1987 against Vinod Kumar respondent. The said petition was initially filed before the Rent Controller. However, vide order dated 8.9.2002 the same was returned to the petitioner Board for presentation to the appropriate Court i.e. Wakf Tribunal, keeping in view the provisions of Section 83 of the Wakf act 1995 and keeping in view that Wakf Tribunals had since been constituted in the State of Himachal Pradesh. Thereupon, the petition was presented before the Wakf Tribunal. The said petition was contested by the other side by filing a written reply. Various issues were framed on 5.3.2003 by the Wakf Tribunal, Dharamshala and the case was adjourned to 24.5.2003 by the learned Wakf Tribunal Dharamshala for petitioners evidence. On 24.5.2003 after noticing that no evidence of the petitioner was present, the case was adjourn to 21.7.2003 by the learned Wakf Tribunal, Dharams Tiala for petitioners evidence and it was stated that this was the last opportunity. On 21.7.2003 after noticing that no evidence of the petitioner was present despite last opportunity, the petition was dismissed for non compliance of the previous order. 3.Afterthe petition was dismissed vide order dated 21.7.2003 on account of non compliance of the earlier order dated 24.5.2003, the petitioner Board filed application on 19.8.2003, seeking restoration of the case which was dismissed on 21.7.2003. The said application was contested by the respondent by filing a reply. After hearing both sides and perusing the record, the learned Wakf Tribunal dismissed and the said application, vide order dated 11.12.2003, holding that since the petition was dismissed under Order 17 Rule 3 CPC and not under Order 17 Rule 2 CPC the restoration application was not maintainable. Aggrieved against the orders dated 11.12.2003 and 21.7.2003 passed by the Wakf Tribunal, the petitioner Board filed the present revision petition in this court under Section 83(9) of the Wakf Act, 1995 read with Article 227 of the Constitution of India. Aggrieved against the orders dated 11.12.2003 and 21.7.2003 passed by the Wakf Tribunal, the petitioner Board filed the present revision petition in this court under Section 83(9) of the Wakf Act, 1995 read with Article 227 of the Constitution of India. Since there was delay in filing the revision petition, an application under Section 5 of the Limitation Act, seeking condonation of delay in filing the revision petition against the orders dated 11.12.2003 and 21.7.2003, was filed. 4. When the revision petition along with the application under Section 5 of the Limitation Act came up for hearing before this Court on 12.4.2004, this Court ordered the issuance of notice to the respondent to show cause as to why the application for condonation of delay in filing the revision petition against the order dated 21.7.2003 passed by the Wakf Tribunal, Dharamshala be not allowed and the delay be not condoned. In pursuance of the said order, notice was ordered to be issued to the respondent. The respondent filed reply to the said application. After hearing both sides and perusing the record, this Court vide order dated 22.6.2004 condoned the delay of 13 days in filing the revision petition, holding that there was sufficient cause shown in the application. Accordingly, the said application was disposed of and it was directed that the revision petition by registered. Thereafter the revision petition was registered as CR No. 91 of 2004. Vide order dated 5.7.2004, notice in the revision petition was ordered to be issued and the notice was accepted by the learned counsel appearing for the respondent. The records were requisitioned and the case was fixed for arguments. 5. Today, when the revision petition came up for hearing before me, it came to my notice, during the course of arguments, that the present revision petition has been filed by the petitioner Board against the orders dated 11.12.2003 and 21.7.2003 passed by the Wakf Tribunal and that in the application under Section 5 of the Limitation Act, bearing CMP(M) No. 280 of 2004, the petitioner Board had sought the condonation of delay in filing the present revision petition against the aforesaid orders dated 11.12.2003 and 21.7.2003. It also came to my notice that while issuing notice in the application under Section 5 of the Limitation Act the respondent was asked to show cause as to why the delay in filing the revision petition against the order dated 21.7.2003 passed by the Wakf Tribunal be not condoned and the said application under Section 5 of the Limitation Act be not allowed. It was in pursuance of this notice that the notice that the respondent had put in appearance and had filed the reply. It also came to my notice that while condoling the delay and disposing of the application under Section 5 of the Limitation Act, bearing CMP(M) No. 280 of 2004, vide order dated 22.6.2004, this Court had condoned the delay of 13 days in filing the revision petition after noticing that sufficient cause had been shown in the application. It appears that at the time when the said order dated 22.6.2004 was passed by this Court, it escaped the notice of this Court that infact the revision petition was against the orders dated 11.12.2004 and 21.7.2003 and that in the application under Section 5 of the Limitation Act, the petitioner Board had sought the condonation of delay in filing the revision petition against the aforesaid orders. 6. In view of the above, I have heard the learned counsel for the parties with regard to prayer for condoning the delay in filing the revision petition against the orders dated 11.12.2003 and 21.7.2003. As referred to above, vide order dated 22.6.2004 the delay in filing the revision petition against the order dated 11.12.2003 had already been condoned by this Court, holding that there was sufficient cause shown in the application which is supported by the affidavit and accordingly the application was disposed of. However, the prayer of the petitioner Board for condoning the delay in filing the revision petition against the order dated 21.7.2003 was not considered by this Court, while passing the order dated 22.6.2004. As referred to above, the show cause notice was issued to the respondent with regard to ttie delay in filing the revision petition against the order dated 21.7.2003 and the respondent had filed the reply in pursuance of the said show cause notice. 7. As referred to above, the show cause notice was issued to the respondent with regard to ttie delay in filing the revision petition against the order dated 21.7.2003 and the respondent had filed the reply in pursuance of the said show cause notice. 7. After hearing the learned counsel for the parties and perusing the record, in my opinion, there are sufficient grounds to condone the delay in filing the revision petition not only against the order dated 11.12.2003 but also against the order dated 21.7.2003. As referred to above, after the order dated 21.7.2003 was passed by the trial Court vide which the petition filed by the petitioner was dismissed on account of non compliance of the previous order, the petitioner had filed restoration application before the Wakf Tribunal on 19.8.2003, seeking the restoration of the suit which was dismissed on 21.7.2003. The said application was dismissed by the Wakf Tribunal on 11.12.2003, holding that the restoration application was not maintainable. It was thereafter that the petitioner had filed the present revision petition in this court. Keeping in view that the petitioner had filed the restoration application within one month of the order dated 21.7.2003 and the said application was disposed of on 11.12.2003, holding that the same was not maintainable, in my opinion, it could certainly be said that the petitioner had been prosecuting another proceedings the wrong forum bonafide and with due diligence. That being so, in my opinion, the period spent by the petitioner in prosecuting the said remedy against the respondent, by way of filing the restoration application, could be excluded while computing the limitation for filing the present revision petition against the order dated 21.7.2003, as provided under Section 14 of the Limitation Act, 1963. Merely because in the present application no reference has been made to Section 14 of the Limitation Act, in my opinion, would be no ground not to apply the said provisions of the Limitation Act, especially when these provisions are applicable to the present case. 8. Merely because in the present application no reference has been made to Section 14 of the Limitation Act, in my opinion, would be no ground not to apply the said provisions of the Limitation Act, especially when these provisions are applicable to the present case. 8. In view of the above, it is ordered that while disposing of the application under Section 5 of the Limitation Act, bearing CMP(M) No. 280 of 2004, vide order dated 22.6.2004, it shall be deemed that the delay in filing the revision petition against the order dated 21.7.2003 shall also stand condoned, besides the delay in filing the revision petition against the order dated 11.12.2003. 9.Coming on merits, the learned counsel appearing for the petitioner Board has submitted that he is not pressing this revision petition against the order dated 11.12.2003 passed by the Wakf Tribunal and that he is pressing the present revision petition only against the order dated 21.7.2003 passed by the Wakf Tribunal. He has further submitted that issues in this case were framed only on 5.3.2003 and the case was fixed for 24.5.2003 for petitioners evidence and since no evidence of the petitioner was present on 24.5.2003, the case was adjourned to 21.7.2003 for petitioners evidence and this was treated as last opportunity and on 21.7.2003 since no evidence of the petitioner was present, the Wakf Tribunal had dismissed the petition for non compliance of the earlier order dated 24.5.2003. It has been submitted that the learned Tribunal, while passing the order dated 21.7.2003, had acted in haste in dismissing the petition filed by the petitioner. 10. After hearing learned counsel for the parties and perusing the record, I find great force in these submissions of the learned counsel for the petitioner. As referred to above, the petition was filed before the Wakf Tribunal only on 21.9.2002 (after it was returned by the Rent Controller vide order dated 2.9.2002). The respondent had filed the reply on 24.12.2002 and the petitioner had filed the replication on 5.3.2003 and on the same day various issues were framed and the case was fixed for 24.5.2003 for petitions evidence. Since no evidence of the petitioner was present on 24.5.2003, the case was adjourned to 12.7.2003 for petitioners evidence and it was directed that this would be the last opportunity. Since no evidence of the petitioner was present on 24.5.2003, the case was adjourned to 12.7.2003 for petitioners evidence and it was directed that this would be the last opportunity. Since no evidence of the petitioner was present even on 21.7.2003, the learned Wakf Tribunal dismissed the petition for non compliance of the earlier order dated 24.5.2003. Keeping in view the facts and circumstances of the present case, in my opinion, it can certainly be said that the learned Wakf Tribunal had acted in haste in "dismissing the petition for non compliance of the previous orders. As referred to above, it was only on 5.3.2003 that the issues were framed and the case was adjourned to 24.5.2003 for petitioners evidence and this would be the first opportunity to the petitioner to produce the evidence. Since no evidence of the petitioner was present, the case was adjourned to 21.7.2003 for petitioners evidence directing that this would be the last opportunity. In this manner 21.7.2003 was the second opportunity to the petitioner to produce the evidence. Since no evidence of the petitioner was present even on 21.7.2003 the petition was dismissed for non-compliance of the previous order. In my opinion, this would not be the way in which cases should be decided by the trial courts. Even under the amended provisions of the Code of Civil Procedure, three opportunities could be given to the parties to produce their evidence. Furthermore, in Salem Advocate Bar Association, Tamil Nadu v. Union of India JT 2005(6) 486, it was held by the Honble Supreme Court that in appropriate cases further opportunity can be given subject to payment of costs and higher costs. 11 .Keeping in view the facts and circumstances of the present case, in my opinion, the learned Wakf Tribunal had erred in law in dismissing the petition of the petitioner vide order dated 21.7.2003 for non compliance of the previous order and while doing so had acted in haste. I am further of the opinion that the aforesaid order dated 21.7.2003 passed by the Wakf Tribunal is liable to be set aside. 12. I am further of the opinion that the aforesaid order dated 21.7.2003 passed by the Wakf Tribunal is liable to be set aside. 12. For the reasons recorded above, the present revision petition is allowed, -order dated 21.7.2003 passed by the Wakf Tribunal, Dharamshala is set aside and the case is sent back to the learned Tribunal for deciding the same afresh in accordance with law, keeping in view the observations made by me above. Parties through their counsel are directed to appear before the learned Tribunal on 21.1.2006, for further proceedings in accordance with law.