Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 479 (MP)

Maulana Haroon v. M. P. State Wakf Board

2011-04-20

A.K.SHRIVASTAVA

body2011
ORDER A.K. Shrivastava, J. 1. This Revision has been filed under Section 83(9) of the Wakf Act, 1995 against the order dated 8-3-2011 passed by M.P. Wakf Tribunal, Bhopal (for brevity 'Tribunal') in case No. 6/2009, whereby an application for issuance of temporary injunction under Order XXXIX, Rule 1 and 2, Code of Civil Procedure filed on behalf of Applicant has been dismissed. The order passed in this Revision shall also govern disposal of connected Civil Revisions No. 160/2011, 161/2011, 162/2011 and 163/2011, since a common question is involved in all these revisions. 2. The Plaintiff/Applicant submitted a suit for permanent injunction under Section 83(2) of Wakf Act, 1995 against the Respondents. In the application under Section 83(2) it has been pleaded that the Applicant is the tenant of Wakf Chhoti Masjid (Respondent No. 3) ' Rs. 100/- per month. The rent is being regularly paid by the Applicant to the Respondent No. 3. Further it has been pleaded that the Managing Committee including Appellant gave permission to other tenants to construct the shop from their own expenses and some of the tenants have constructed the pakka shop and are carrying on the business in it. The suit property has been registered in the M.P. Wakf Board having registration No. 34/43. Further it has been pleaded that Applicant is tenant for 20-22 years and is paying rent regularly. The Applicant has also constructed shop with the permission of Respondent No. 3 but later on the rent receipts are not being given to him despite the rent is being received by Respondent No. 3. According to the Applicant, on the basis of false complaint by showing the Applicant as trespasser, proceedings under Section 54 of the Wakf Act was submitted before Chief Executive Officer who had passed order of eviction on 31-5-2008 holding the Appellant to be a trespasser. Hence, the present application under Section 83(2) of the Act has been filed by the Applicant before the Tribunal. 3. An interim application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure has also been filed praying that till the main application is decided, the Respondent No. 3 be restrained from dispossessing the Applicant. Along with the application affidavit of Applicant has been filed and certain rent receipts are also filed. 4. 3. An interim application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure has also been filed praying that till the main application is decided, the Respondent No. 3 be restrained from dispossessing the Applicant. Along with the application affidavit of Applicant has been filed and certain rent receipts are also filed. 4. The Respondent No. 3 resisted the application for issuance of temporary injunction by filing reply on the ground that Applicant is a trespasser and there is an order of Chief Executive Officer against him directing to dispossess him and therefore a lawful order cannot be stayed by allowing the application of temporary injunction. 5. The Wakf Tribunal by the impugned order has rejected the application of the Applicant of temporary injunction. 6. In this manner, this revision under Section 83(9) of the Wakf Act has been filed. 7. I have heard Shri Imtiyaz Hussain, learned Counsel for Applicant/Plaintiff and Shri Mukhtyar Ahmad, learned Counsel for Respondent No. 3. I have also heard Shri Sanjeev Mishra, learned Counsel appearing for the Wakf Board. 8. The contention of Shri Imtiyaz Hussain, learned Counsel for Applicant is that the Applicant is a tenant of Respondent No. 3 and there are definite pleadings in this regard that the relationship of landlord and tenant still exists between him and Respondent No. 3. Further it has been contended that although there is an order of Chief Executive Officer directing him to be dispossessed holding him to be a trespasser but the said order is under challenge before Wakf Tribunal. Learned Counsel submits that there is overwhelming material on record in order to demonstrate prima facie that he is the tenant of Respondent No. 3. Learned Counsel has invited my attention to the order of learned Tribunal as well as rent receipts which are filed in order to show prima facie that Applicant is the tenant and therefore whether he is trespasser or not and whether the order of Chief Executive Officer has rightly been passed or not, it is serious question of facts and law which is required to be adjudicated at the time of the decision of main application under Section 83(9) of Wakf Act. However, admittedly the Applicant is in possession of the suit property, therefore, till the decision of main application, Respondent No. 3 be restrained from interfering in the possession. 9. However, admittedly the Applicant is in possession of the suit property, therefore, till the decision of main application, Respondent No. 3 be restrained from interfering in the possession. 9. On the other hand Shri Mukhtyar Ahmad, learned Counsel for Respondent No. 3 submits that no written rent note has been submitted by the Applicant before Wakf Tribunal. The rent receipts which are filed are concocted and fictitious documents. Further it has been contended by him that there is an order of Chief Executive Officer holding the Applicant to be a trespasser and therefore no injunction can be granted. Learned Counsel has further submitted that doctrine of holding over tenancy is not applicable in the present case and therefore, there is no prima facie case in favour of the Applicant and since there is no prima facie case against him, he is not entitled for temporary injunction. In support of his contention learned Counsel has placed heavy reliance on the decision of Bombay High Court (Aurangabad Bench) in Civil Revision No. 143/2004 Shaikh Shafiq v. Kishan Laxman Waghmare and Ors. decided on 30-8-2004. Learned Counsel has also invited my attention to Division Bench decision of Madras High Court in H. Idayathulla and Ors. v. Larabsha Dharga Paruti (2007) 2 MLJ 1034 . Learned Counsel has also placed heavy reliance on Single Bench decision of this Court in Sahira Bi v. M.P. Wakf Board Bhopal and Ors. 2007 (1) MP AC J 317. 10. Having heard learned Counsel for parties, I am of the view that this revision application deserves to be allowed. 11. v. Larabsha Dharga Paruti (2007) 2 MLJ 1034 . Learned Counsel has also placed heavy reliance on Single Bench decision of this Court in Sahira Bi v. M.P. Wakf Board Bhopal and Ors. 2007 (1) MP AC J 317. 10. Having heard learned Counsel for parties, I am of the view that this revision application deserves to be allowed. 11. Whether the status of Applicant is that of a trespasser or he is still a tenant and whether the order of Chief Executive Officer is in accordance with law or not, whether the tenancy right of the Applicant has come to an end or not, whether the contractual tenancy has come to an end or not and whether after efflux of contractual tenancy whether the Applicant is a tenant on the principles of doctrine of holding over or not, are serious questions of facts and law which are required to be adjudicated after recording the evidence and at this juncture prima facie it cannot be said that Plaintiff/Applicant is a trespasser for the simple reason that on bare perusal of the impugned order it is gathered that certain rent receipts are filed by the Applicant showing him to be a tenant of Respondent No. 3. 12. The question is whether Mohd. Isrmle was Mutawalli or not whether he was having any right to give any permission to Plaintiff/Applicant to construct the shop on the suit premises or not are also serious questions of fact and law which require a detailed inquiry and evidence is required to be adduced and therefore in these circumstances, I am of the view that there is a. prima facie case in favour of Applicant. 13. I do not find any merit in the contention of learned Counsel for Respondent No. 3 that the genuineness, authenticity and hallmark of the rent receipts is doubtful for the reasons assigned by learned Tribunal. The question still remains whether rent receipts are fictitious document or they are genuine, this disputed question of fact can be resolved only after recording the evidence and therefore prima facie the rent receipts which are filed by the Applicant before the Tribunal prima facie shows that he is tenant and possessing the suit property as tenant and cannot be a trespasser. Learned Tribunal has paid much heed in rejecting the application that rent note has not been filed by the Applicant. Learned Tribunal has paid much heed in rejecting the application that rent note has not been filed by the Applicant. Indeed, no one would deny this fact that the rent note always remains with the landlord and therefore, I am of the view that no adverse inference at this stage can be drawn against the Appellant. At this juncture Mukhtyar Ahmad, learned Counsel appearing for Respondent No. 3 submits that rent note was never executed between the Respondent No. 3 and Applicant. Be that as it may, since, rent receipts have been filed by the Applicant, prima facie at this juncture it cannot be said that he is a trespasser. 14. So far as the order of Chief Executive Officer is concerned, firstly the said order is ex parte and secondly that order is under challenge before the Tribunal. The Tribunal is duty bound to examine the order of Chief Executive Officer vis-a-vis with the tenancy right of Applicant and the documents which are filed. 15. Shri Imtiyaz Hussain, learned Counsel for Applicant submits that the account of Respondent No. 3 was audited and in the audit report the Applicant has been shown as tenant. However, this point is seriously disputed by Shri Mukhtyar Ahmad, learned Counsel for Respondent No. 3. Again this is a disputed question of fact which can be resolved only after recording the evidence. I have already held hereinabove that Applicant has a prima facie case in his favour. Admittedly he is in possession of the suit property and if he is dispossessed certainly he will suffer irreparable loss and therefore balance of convenience is also in his favour. Hence all the three limbs of the principle granting temporary injunction are found in favour of Plaintiff/Applicant. Learned Tribunal has traversed against these well settled principles of law and therefore impugned order not granting temporary injunction to the Plaintiff cannot be allowed to remain stand and the same is hereby set aside. The decisions placed reliance by learned Counsel for Respondent are not on temporary injunction application but are on the merit of the case and therefore they are presently not applicable in the present case. 16. For the reasons stated hereinabove, this Revision succeeds and is hereby allowed. The decisions placed reliance by learned Counsel for Respondent are not on temporary injunction application but are on the merit of the case and therefore they are presently not applicable in the present case. 16. For the reasons stated hereinabove, this Revision succeeds and is hereby allowed. The impugned order Annexure-P-1 dated 8-3-2011 is set aside and the application filed under Order XXXIX, Rules 1 and 2, Code of Civil Procedure filed by Plaintiff/Applicant is hereby allowed and Respondent No. 3 is hereby restrained from interfering in the possession of the Plaintiff till the decision of main application under Section 83(2) of Wakf Act. 17. Looking to the facts and circumstances of the case Wakf Tribunal is hereby directed to decide the main case as early as possible preferably within a period of six months from the date of submission of certified copy of this order. Let one copy of this order be kept in the record of connected Civil Revisions No. 160/2011, 161/2011, 162/2011 and 163/2011.