Calcutta High Court (Appellete Side)

Md. Ismail vs Salehjee Musafir Khana Wakf on 22 September, 2023

22.09.2023

Item no.11 CP C.O. No. 2694 of 2023

Md. Ismail Vs.

Salehjee Musafir Khana Wakf

Md. Nauroz Rahber Ms. Anjana Mehebub ......for the petitioner.

Despite notice, none appears on behalf of the

opposite party.

The revisional application arises out of an

order dated June 30, 2023, passed in Misc. Case No.

46 of 2019, arising out of Ejectment Execution Case

No. 45 of 2012. By the order impugned. The said

misc. case was rejected by the learned Judge, 3rd

Bench, Presidency Small Causes Court at Calcutta.

According to the learned court, the application

under Section 47 of the Code of Civil Procedure was

not entertainable on the ground that the objections

did not deal with execution, discharge and

satisfaction of the decree.

The specific contention of the petitioner was

that the decree was null and void as the suit

property, in respect of which eviction was sought for

against the tenant, was a waqf property. Such a

decree could not be executed.

Dealing with the aforementioned contention,

the learned court below elaborately discussed the

case of the petitioner as also the contentions and

judicial pronouncements on such point.

Ejectment Suit No. 240 of 2008 was filed in

respect of room nos. 3 & 4 at Premises No. 117,

Rabindra Sarani, P.S.-Barrabazar. The suit was

decreed ex parte against the petitioner. The petitioner

prayed for setting aside the ex parte decree, by filing

an application under Order 9 Rule 13 of the Code of

Civil Procedure. The said application was rejected.

The Misc. Appeal No. 50 of 2018 was filed from the

said order of rejection. The Misc. Appeal was also

rejected. Thereafter, when the decree holder filed an

application under Order 21 Rule 97 of the Code of

Civil Procedure, seeking execution of the ex parte

decree with police help, the application under Section

47 of the Code of Civil Procedure was filed. The

decree had attained finality. No first appeal had been

preferred from the ex parte decree.

The learned executing court found that the

points raised were not tenable in law, in view of the

specific decisions of the Hon'ble Apex Court and the

High Court. The law had been well settled that a suit

for eviction of a tenant by a landlord, even in respect

of a waqf property, would be maintainable before the

learned civil court prior to the amendment of 2013.

Reliance was placed on the following decisions by the

learned court below:

a) Board of Wakf, West Bengal vs. Anis Fatma

Begum & ors., reported in 2010 (14) SCC

588.

b) Faseela M Vs. Munnerul Islam Madrasa

Committee & anr., reported in (2014) 16

SCC 18.

c) Ramesh Gobind Ram (Dead) through L.Rs

vs. Sugra Humayun Mirza Wakf, reported in

(2010) 8 SCC 726.

d) Sk. Abdul Matalib @ Sk. Saiful Islam vs.

Abu Naim Siddique in C.O. 4061 of 2015.

Learned counsel for the petitioner submits that

the decree was passed against a minor. Secondly,

eviction suits were also covered by the provisions of

Section 6 and 7 of the Waqf Act, 1995 (hereinafter

referred to as 'the said Act'). A dispute under Section

6 of the said Act, included not only determination of

the questions as to whether the property was a waqf

or not, but the expression also included a suit

between a landlord and a tenant. According to him,

Section 7 of the said Act empowered the learned

Waqf Tribunal alone, to decide such issues.

It is next contended that Section 54 of the said

Act permitted the Chief Executive Officer to remove

an encroachment from a waqf property and the Chief

Executive Officer could apply to the Waqf Tribunal

seeking eviction of such encroacher. Thus, the

jurisdiction to pass a decree for eviction was vested

in the learned Waqf Tribunal.

The first point, that the decree was passed

against a minor, is not correct. The petitioner was

born on October 5, 1990. The eviction decree was

passed on September 21, 2011. The petitioner

attained majority during the pendency of the suit.

The next point with regard to the jurisdiction of

the learned civil court to pass the decree, is also

answered against the petitioner. The contention of

the petitioner is that the decree was passed by a

court which lacked jurisdiction over the subject

matter. The said point has been dealt with by the

learned court below in great detail.

Several decisions of the Hon'ble Apex Court

have been relied upon to show that the decree was

not a nullity. Section 83 of the said Act was amended

with effect from November 1, 2013. The suit was filed

before such amendment. By the amendment,

disputes with regard to eviction of a tenant and

determination of rights and obligations of a lessor

and lessee in respect of a waqf property, were

brought within the jurisdiction of the Waqf Tribunal.

Prior to such amendment, all eviction suits were

being adjudicated in civil courts.

The civil court, after considering and

determining the existing relationship of landlord and

tenant between the parties and after considering the

ground of eviction and due service of notice, decreed

the suit ex parte. Neither party raised any question

with regard to the property being a waqf property.

When the question whether a property was a

waqf property or not, had not been raised, the same

would not cover a dispute under Section 6 of the said

Act, was rightly held by the learned court below. The

suit was a pre-amendment suit.

Reference was made to the decision of Faseela

M. (supra) and Ramesh Gobind Ram (supra), wherein

the Hon'ble Apex Court held that a suit for eviction

must be brought in a civil court as the suit did not

cover the expression dispute, specified in Sections 6

and 7 of the said Act. Similar view was taken by the

Hon'ble High Court in Sk. Abdul Matalib (supra).

Considering the abovementioned decisions, the

learned court below found that the decree was not a

nullity and hence, was executable.

This court in C.O. No. 1714 of 2023 decided

the point of maintainability of an Ejectment Suit of

2011, in a civil court. The contention of the petitioner

that the 'other matters' in Section 83(1) of the said

Act would also include eviction of a tenant although

the said expression 'eviction of a tenant' had not

been expressly incorporated prior to the amendment

of 2013, was not accepted by this court.

This court was of the view that the amendment

in 2013 was prospective and not retrospective and a

suit for eviction in 2011, ought to be filed before the

learned civil court. In the present case, the suit is of

2008. The expression 'eviction of a tenant' had not

been incorporated in Section 83 of the said Act, at

the relevant point of time.

This court discussed the decision of Rashid

Wali Beg vs. Farid Pindari & ors., reported in (2022)

4 SCC 414. The relevant portion of the decision in

CO 1714 of 2023, is quoted below:

"Having heard the learned advocates for the respective parties, this Court finds that the suit is of 2011. The suit is for eviction of a trespasser. At the relevant point of time 'disputes', 'questions' and 'other matters' relating to waqf and waqf property were amenable to the jurisdiction of Waqf Tribunal. By a subsequent amendment, matters relating to eviction of tenants were also brought within the purview of Section 83(1). Thus, the contention of Mr. Banerjee that the expression 'other matters' would include within its ambit, eviction of a tenant, is not accepted for the simple reason that the amendment in 2013 was incorporated to extend the jurisdiction of the tribunal to matters relating to 'eviction' and suits determining the rights and liabilities of lessors and lessees. Such amendment would indicate that these two subject matters were not within the purview of the jurisdiction of the Waqf Tribunal, prior to amendment in 2013. The next contention of Mr. Banerjee is also not accepted, inasmuch as, the right of the mutawalli to approach the Waqf Tribunal in case of any issue relating to the 'waqf', was also incorporated in 2013, by way of an amendment in 2013. The decision in Rashid Wali Beg (supra) was rendered with regard to suits for a decree of permanent injunction and mandatory injunction. In the said decision, the Hon'ble Apex Court held that even in case of pre-amendment suits, 'disputes', 'questions' and 'other matters' would include a dispute with regard the encroachment of a waqf

property, giving rise to reliefs for permanent injunction and mandatory injunction. The contention of the parties before the Hon'ble Apex Court was that any dispute which did not raise a question as to whether a property was a waqf property or not, would not be amenable to the jurisdiction of the waqf tribunal. Such contention was rejected by the Hon'ble Supreme Court. The Hon'ble Apex Court found the proposition to be 'indigestible'.

According to the Hon'ble Apex Court, the relief for permanent injunction and mandatory injunction arose out of a dispute with regard to enjoyment of a waqf property and/or disturbance created to enjoyment of a waqf property. Thus, the said dispute which touched the very subject matter, that is the waqf property, was amenable to the jurisdiction of the waqf tribunal, even prior to the amendment of 2013. Paragraph 64 is quoted below:-

"64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words "any dispute, question or other matter relating to a waqf or waqf property" are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram was sought to be distinguished both in Anis Fatma Begum and Prripal Singh and such distinction was taken note of in Akkode Jumayath Palli Paripalana Committee. Additionally, this Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram, on the ground that the suit was originally instituted before the civil court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram."

The Hon'ble Apex Court was alive to the fact that Section 83 had two limbs prior to amendment. That is, there must be a contentious issue with regard to any dispute, question or other matter relating to a waqf or waqf property and secondly determination of such 'dispute', 'question' or 'other matter' relating to waqf. Thus, the Hon'ble Apex Court held that a dispute over a waqf property with regard to encroachment was a dispute covered under the unamended provision of Section 83. In the same paragraph, Their Lordships went on to hold that after the Amendment Act 27 of 2013, even the eviction of a tenant or the determination of the rights and obligations of the lessor and lessee of such property, came within the purview of the tribunal.

In my opinion, the expression "after amendment even eviction of a tenant was brought within the purview of the Waqf Tribunal means that before 2013 this issue was not within the purview of the Waqf Tribunal.

This point was also elaborated in Faseela M. (supra). The plaint in a pre-amendment suit was returned by the waqf tribunal to be presented before the civil court, thereafter the order was recalled. The Hon'ble Apex Court had held that the suit was for eviction against a tenant relating to a waqf property and was exclusively triable by the civil court as the suit was not covered by the dispute specified in Sections 6 and 7 of the Act. The order recalling the earlier order was set aside. The Hon'ble Apex Court was referring to a pre-amendment suit.

Moreover, the amendment is prospective in the nature as the Act did not provide for retrospective effect of the amendment. This suit is for eviction of a trespasser, prior to the 2013 amendment. The same shall be tried by the learned Civil Court."

The revisional application is accordingly

dismissed. The learned court below rightly rejected

the Misc. Case.

Reference is made to the decision of Bhoj Raj

Garg vs. Goyal Education and Welfare Society

and ors. decided in SLP No.- 19654/2022 and also

in Rahul S. Shah vs. Jitendra Kumar Gandhi &

Ors. reported in (2021) 6 SCC 418, in which the

Hon'ble Apex Court held that execution should be

completed within six months and the judgment

debtor should not be allowed to continue to resist the

execution, only to deprive the decree holder who had