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Telangana High Court · body

2022 DIGILAW 761 (TS)

Mohd. Abdul Aziz Died v. Managing Committee

2022-11-28

M.LAXMAN

body2022
JUDGMENT : 1. This Second Appeal has been filed challenging the judgment and decree dated 23.02.2021 in A.S.No.108 of 2015, on the file of the learned XXV Additional Chief Judge, City Civil Court, Hyderabad, wherein, the judgment and decree dated 02.02.2015, in O.S.No.1289 of 2011, on the file of the learned V Senior Civil Judge, City Civil Court, Hyderabad, was confirmed. 2. Originally, the respondents herein filed O.S.No.1289 of 2011 for eviction, recovery of possession and arrears of rents and damages and it was decreed and in the appeal, it was confirmed. Aggrieved by the judgment and decree in the first appeal, the present second appeal is filed at the instance of defendants. The respondents are the plaintiffs and the appellants herein are the defendants in the suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit. 3. The sum and substance of the case of the plaintiffs was that the shop bearing municipal No.13-1-1036, admeasuring 100 feet and 50 feet, which is equivalent to 555 sq. yards, situated at Masjid-e- Sultan Bagh and grave yard, Kawadiguda, Hyderabad (herein after referred to as “suit property”), was notified wakf property, by virtue of A.P. Gazettee No.27-A, dated 12.07.1984. The plaintiffs have let out the premises to the defendants for running motor work shop on monthly rent basis. Initial tenancy was from 14.05.1967 for a monthly rent of Rs.85/- and there was previous litigation in between the parties with regard to the rent. Therefore, the father of the defendants has filed a suit in O.S.No.47 of 1998 on the file of the A.P.Wakf Tribunal, Hyderabad and the same was dismissed. Aggrieved by the same, the father of the defendants has filed revision petition in CRP.No.4612 of 2000 and the same was dismissed. Ultimately, the suit proceedings were ended against the tenant/defendants. The defendants failed to pay rent, as such, a legal notice was issued. Thereafter, the present suit has been filed. 4. The defendants’ common pleadings show that they have not denied the tenancy, however, they denied the claim of default and arrears of rent. They had also set up a plea that the suit is barred before Civil Court by virtue of amendment of Section 83 of Wakf Act. 5. Thereafter, the present suit has been filed. 4. The defendants’ common pleadings show that they have not denied the tenancy, however, they denied the claim of default and arrears of rent. They had also set up a plea that the suit is barred before Civil Court by virtue of amendment of Section 83 of Wakf Act. 5. The Court below, based on the above pleadings has framed the following issues: “1.Whether the plaintiffs are entitled to evict the defendants from the suit schedule property? 2.Whether the plaintiffs are entitled for recovery of arrears of rents and mense profits as prayed for? 3.To what relief?” Additional Issue: “Whether this Court has jurisdiction to entertain and decide the present suit after amendment of Wakf Act, 1995, dated 23.09.2013?” 6. The plaintiffs, to support their case, examined PW1 and PW2 and relied upon Exs.A1 to A26. The defendants, to support their case, examined DW1 and no exhibit has been marked. 7. The Court below, on appreciation of evidence on record found all the issues in favour of the plaintiffs. Consequently, decreed the suit. Aggrieved by the same, the defendants preferred First Appeal in A.S.No.108 of 2015. The First Appellate Court, on appreciation of evidence found that the findings rendered by the trial Court are based on record and consequently, the appeal was also dismissed. Hence the present appeal. 8. Heard the learned counsel on either side. The following substantial questions of law were framed by this Court on 23.09.2022: “1.Whether the amended Act of 27 of 2003, which was given with effect from 01.11.2013, making amendment to Sections 83 and 85 of WAKF Act takes away the jurisdiction of the Civil Court in respect of proceedings commenced anterior to the amendment? 2. Whether the amended Section 83 of WAKF Act has given retrospective effect?” 9. The main contention of the learned counsel for the defendants is that original Section 83(1) of Wakf Act (Act 27 of 2013) has been amended and is given effect from 01.11.2013. According to him, by virtue of this amendment, the jurisdiction to try the case relating to eviction was vested with the Tribunal and such amendment has retrospective effect and the pending cases must be tried by the Tribunal and not by the Civil Court. Therefore, according to him, Civil Court has no jurisdiction to entertain the suit. According to him, by virtue of this amendment, the jurisdiction to try the case relating to eviction was vested with the Tribunal and such amendment has retrospective effect and the pending cases must be tried by the Tribunal and not by the Civil Court. Therefore, according to him, Civil Court has no jurisdiction to entertain the suit. In support of his contention, he also relied upon the decision of the Apex Court in the case of Lal Shah Baba Dargah Trust Vs. Magnum Developers and others, 2016 (2) ALD 55 (SC) and Rashid Wali Beg Vs. Farid Pindari and Others (2022) 4 SCC 414 . 10. The learned counsel representing the plaintiffs submitted that the amendment Act has no retrospective effect on the pending cases. The cases prior to the amendment, shall continue to try by Civil Court and there is no transitory provisions making transfer of the pending cases to the Tribunal so as to oust the jurisdiction of the Civil Court. According to him, the Civil Court has jurisdiction. In support of his contentions, he has relied upon the decision of the Apex Court in the case of Sawarkhanam and others Vs. Macca Madina Allauddin Wakf, Secunderabad and others, 2018(1) ALD 341 . 11. In the background of the above contention, this Court feels that it is relevant to refer to original and amended Section 83(1), which read as follows: Section 83(1) as it stood before amendment: 83. Constitution of Tribunals, etc.:- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fir, for the determination of any dispute, question or other matter relating to a waqf or waqf property under this Act and define the local limits and jurisdiction of such Tribunals. Section 83(1) as amended by Wakf (Amendment) Act, 2013 (27 of 2013) w.e.f. 1-11-2013: 83. Constitution of Tribunals etc.:- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. 12. 12. By virtue of an amendment the proceedings relating to eviction of a tenant or determination of rights and obligations of the lessor and lessee of such property were brought under the purview of the Tribunal and the said amendment was given effect from 01.11.2013. There is no provision under the Act dealing with the suits filed prior to the amendment. The Apex Court in the case of Pubjab Wakf Board Vs. Sham Singh Karike – (2019) 4 SCC 698 , while challenging the amendment Act of 43 of 1995, held as follows: 32. After the judgment of this Court in Ramesh Gobindram, there are several two-Judge judgments of this Court either following Ramesh Gobindram’s judgment or distinguishing the same on one or other reasons. This Court in Bhanwar Lal and another vs. Rajasthan Board of Muslim Wakf and others, (2014) 16 SCC 51 , elaborately noticed the judgment of Ramesh Gobindram’s case. This Court ultimately in the facts of that case held that since the suit was filed much before the enforcement of the Act i.e. 1.1.1996, in view of the dictum laid down in Sardar Khan & others v. Syed Nazmul Hasan (Seth) and others, (2007) 10 SCC 727 , the Civil Court where the suit was filed shall continue to have jurisdiction. In paragraph 30 following has been laid down: “30. The suit is for cancellation of sale deed, rent and for possession as well as rendition of accounts and for removal of trustees. However, pleadings in the suit are not filed before us and, therefore, the exact nature of relief claimed as well as the averments made in the plaint or written statements are not known to us. We are making these remarks for the reason that some of the reliefs claimed in the suit appeared to be falling within the exclusive jurisdiction of the Tribunal whereas for other reliefs the civil court would be competent. Going by the ratio of Ramesh Gobindram (2010) 8 SCC 726 , suit for possession and rent is to be tried by the civil court. However, the suit pertaining to removal of trustees and rendition of accounts would fall within the domain of the Tribunal. Going by the ratio of Ramesh Gobindram (2010) 8 SCC 726 , suit for possession and rent is to be tried by the civil court. However, the suit pertaining to removal of trustees and rendition of accounts would fall within the domain of the Tribunal. Insofar as relief of cancellation of sale deed is concerned this is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decide such an issue. Moreover, relief of possession, which can be given by the civil court, depends upon the question as to whether the sale deed is valid or not. Thus, the issues of sale deed and possession are inextricably mixed with each other. We have made these observations to clarify the legal position. Insofar as the present case is concerned, since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the civil court where the suit was filed will continue to have the jurisdiction over the issue and the civil court would be competent to decide the same.” 13. Further, this Court in Sawarkhanam’s case cited supra held as follows: 11. Dealing further with the contention of the defendants that after the amended provisions of the Wakf Act came into force, the civil Court is not having jurisdiction to entertain and dispose of the suit for eviction of the tenants from the Wakf Property, it is apposite to note that as on the date the instant suit was instituted in the year 2009, the legal position as was then obtaining makes it manifest that a civil suit for eviction of tenants from the Wakf property filed before a civil Court is maintainable and that a civil Court is having jurisdiction to entertain, try and dispose of such a suit. It is no doubt true that subsequently, that is, during the pendency of the instant suit, the provisions of the Wakf Act are amended and the amended provisions came into force from 01.11.2013. It is no doubt true that subsequently, that is, during the pendency of the instant suit, the provisions of the Wakf Act are amended and the amended provisions came into force from 01.11.2013. However, since the suit was instituted in the year 2009 as per the law prevailing as on the date of the institution of the instant suit, in the considered view of this Court, the subsequent change in the law does not make any difference to the case on hand and does not affect the jurisdiction that vested in the civil Court as on the date, the suit was instituted. Hence, the civil Court which had jurisdiction as on the date the suit was instituted is competent to continue to entertain the suit and dispose of the same on its merits. The settled rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and the adjudication must proceed in accordance with that law and the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. Further, from a careful examination of the amended provisions of the Wakf Act, it does not appear that the said provisions are retrospective in operation. The learned Counsel for the defendants did not also bring to the notice of the Court any precedent to show that the said provisions are retrospective in operation. It would be pertinent to mention that if a suit or proceeding is already pending in a civil Court before the coming into the force of the amended provisions of the Wakf Act in question, then such suit or proceedings before the Civil Court would continue and the Tribunal would not have any jurisdiction in such matters. Therefore, it can be safely held that the provisions of the Wakf Act dealing with the jurisdictional aspect, which came into force from 01.11.2013, are not attracted to the instant suit. Hence, the contention of the defendants that the civil Court is not having jurisdiction to entertain and dispose of the suit on its merit is untenable, as rightly held by the trial Court.” 14. Hence, the contention of the defendants that the civil Court is not having jurisdiction to entertain and dispose of the suit on its merit is untenable, as rightly held by the trial Court.” 14. As seen from the provisions of amended Act and decisions rendered by the Apex Court and our own High Court touching the applicability of original Wakf Act and Amendment Act, it is clear that all pending cases either before amendment of the Act or new Act continue to be tried by the Civil Court. The Civil Court is not ousted with the jurisdiction since there is no transitory provisions directing the pending cases to be transferred to the Tribunal. Therefore, the contention of the learned counsel for the defendants that Civil Court jurisdiction is ousted, has no merit. Such contention is rejected. Accordingly, the substantial question of law is answered in favour of the respondents. 15. With the above observations, this Second Appeal is dismissed. The judgment and decree dated 23.02.2021 in A.S.No.108 of 2015, on the file of the learned XXV Additional Chief Judge, City Civil Court, Hyderabad, is hereby confirmed. No costs. Consequently, miscellaneous petitions, if any, shall stand closed.