Syed Amir Ali vs Anjuman E Haideri & Anr.
2012 Latest Caselaw 2117 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Judgment:28.03.2012

+                    CM (M) No. 48/2002

      SYED AMIR ALI                             ..... Petitioner
                              Through   Mr. Arvind Kumar Sharma, Adv.

                     versus


      ANJUMAN E HAIDERI & ANR.        ..... Respondents
                   Through  Ms. Tasneem Ahmadi, Adv
      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. The impugned judgment is dated 10.01.2002. This was a

judgment passed by the Rent Control Tribunal (RCT) which had

endorsed the findings of the Additional Rent Controller (ARC) dated

11.12.2001; eviction petition filed by Anjuman E Haideri (hereinafter

referred to as the „landlord‟) against Yusuf Agha (hereinafter referred to

as the „tenant‟) had been decreed. This was an eviction petition filed

under Section 14 (1)(b), (d) & (h) of the Delhi Rent Control Act

(DRCA).

2. Record shows that the landlord claims himself to be the owner of

property bearing No. Bala Khan (Naqqar Khana) Main gate, Dargah

Shaha Mardan Ali Ganj, New Delhi; two rooms with open courtyard on

the first floor (Bala Khana) was let out to the tenant w.e.f. 01.10.1973 on

the basis of rent note for residential purpose at a monthly rent of Rs.80/-

excluding electricity and water charges. The tenant had sub-let these

premises in favour of respondent No. 1 (Syed Amir Ali) without the

permission in writing or oral by the landlord; respondent No. 2 was

taking illegal rent from respondent No. 1; the sub-tenant is now in

complete control of the suit premises as the original tenant had shifted

out and he has been allotted a residence at property bearing No. 45, Park

End, Vikas Marg, Delhi.

3. The tenant had not contested the proceedings; he had filed a

written statement but thereafter he had been proceeded ex-parte. The

sub-tenant had alone contested the proceedings. His application seeking

impleadment had been dismissed on 23.11.1998. A revision petition was

filed before the High Court; the High Court vide order dated 26.11.1999

remanded the matter back to the ARC impleading the sub-tenant as

respondent No. 2. It was thereafter that the written statement was filed

and the matter was contested by him; submission being that he was the

tenant in his own right and he was not a sub-tenant. Contention being

that he was paying Rs.80/- per month as rent.

4. Oral and documentary evidence was led by the respective parties.

One witness was examined on behalf of the landlord and

correspondingly one witness on behalf of the tenant. On the basis of oral

and documentary evidence, the ARC had decreed the eviction petition

filed under Section 14 (1)(b), (d) & (h) of the DRCA. This finding was

endorsed by the RCT.

5. Counsel for the petitioner has drawn attention of this Court to the

first order passed by this Court which was on 01.2.2002; the petition had

been dismissed in limine after considering the record as also the

averments made in this petition. On a subsequent application seeking

review of this judgment, on 26.2.2002 the review had been permitted of

the judgment dated 01.2.2002 on the premise that the suit property was a

wakf property but this had not been considered in the order dated

01.2.2002; accordingly the order dated 01.2.2002 had been reviewed.

6. Record shows that in the entire eviction petition there has been no

mention that this suit property is a wakf property. Before the trial court

no objection was raised also by the tenant/respondent to the effect that

this was a wakf property; nothing precluded him from doing so but

record shows that it was never the defence of the respondent that this is

a wakf property or for this reason, there is a bar of the jurisdiction of the

civil court as is the vehement argument now urged before this Court.

While reviewing the judgment dated 01.2.2002, the court had noted that

this is a wakf property. This Court shall now proceed on the assumption

that admittedly the suit property is a wakf property.

7. Even if this is a wakf property, there is no ouster of the

jurisdiction of the civil court. This had been held by a bench of the

Supreme Court in AIR 2010 Supreme Court 2897 Ramesh Gobindram

Vs. Sugra Humayun Mirza; this was an eviction petition which had been

filed before the Wakf Tribunal. The Wakf Tribunal had passed an

eviction order in favour of the Wakf Board; the submission of the tenant

that the jurisdiction did not vest with the Tribunal but the remedy was to

file a civil suit had been rejected. This order of the Tribunal had been

endorsed by the High Court. The Apex Court in this judgment of

Ramesh Gobindram (supra) had dismissed the finding returned by the

Tribunal as also by the High Court; it had noted that an eviction suit

filed by the Mutawalli of the wakf holding himself to be landlord of the

suit property would be an eviction suit which should have been filed

before the Civil Court. The Wakf Tribunal could not have assumed

jurisdiction; the four corners of the jurisdiction of the Tribunal are

contained within the parameters of Section 6 of Wakf Act 1995. The

Apex Court had accordingly advised the Wakf Board to take

appropriate civil action before the competent civil court to redress his

grievance in accordance with law.

8. Thus in view of the ratio of the aforenoted judgment holding that

an eviction suit for seeking eviction of the tenant from the wakf property

is to be filed in the civil court only, there is no bar of jurisdiction as is

contended by the petitioner/tenant in terms of Section 85 of the Wakf

Act.

9. The present suit had been filed by Anjuman E Haideri & Anr.

claiming himself to be the Secretary of Anjuman E Haideri /Society

which is a registered society (Ex.PW-1/2) was the resolution authorizing

him to file the aforenoted suit proceedings. It was never the defence of

the tenant in the written statement that he was not authorized to file the

suit for any reason.

10. Learned counsel for the parties do not dispute the factum that a

jurisdictional error can be corrected by a superior court even if the

objection has not been raised in the court below. This has been held by

the Apex Court in JT 1989 (Supp.) Sc 329 titled as Sushil Kumar Mehta

vs. Gobind Ram Bohra ; the ratio being that a decree passed by a court

without jurisdiction is a nullity and its validity could set up wherever it

is sought to be enforced or acted upon i.e. even at the stage of execution

or in collateral proceedings. The vehement submission of the learned

counsel for the petitioner that since this is a wakf property and the Wakf

Board alone being authorized to look after the interest in the wakf

property, a suit could have been filed only by the Wakf Board or any

person authorized or delegated by the Board to do so. Respondent has

contended that the plaintiff in this case was the Muttawali of the wakf

property and was duly authorized to file the suit. This has been disputed

by the petitioner. This issue could not be gone into by the Trial Court as

this was never a pleading of the parties; the petitioner in the eviction

petition had never pleaded that it is a wakf property or that he is a

Muttawali of the suit property. So also the defendant; it was never his

case that the petitioner was authorized to file the suit as he was not the

muttawali or was not delegated with any authority by the Board to do so.

11. Be that as it may, it has now been agreed that the matter be

remanded back to the Trial Court to decide only this issue which inter

alia will now read as follows:-

"Whether the plaintiff was authorized to file the eviction petition

of the aforenoted wakf property and if so in what capacity?"

12. Needless to state that to answer this issue the parties will be

permitted to go through the legal process including the right to amend

their pleadings as also to adduce evidence in lieu thereof. The Trial

Court shall however confine itself only on the aforenoted issue. The

matter being old, the Trial Court shall also endeavour to dispose the case

as early as possible and preferably within an outer limit of 8 months

from today.

13. Parties to appear before the Rent Control Tribunal (RCT) Patiala

House on 11.04.2012 for the said purpose who shall assign the case to

the concerned court.

14. With these directions, this petition is disposed of.

MARCH 28, 2012/rb                             INDERMEET KAUR, J