Karnataka High Court

The Karnataka State Board Of Auqaf vs Syed Ghouse Mohiuddin Khadri S/O Syed ... on 8 November, 2024

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                                              -1-
                                                           NC: 2024:KHC-K:8229
                                                        CRP No. 200082 of 2023




                             IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                      DATED THIS THE 8TH DAY OF NOVEMBER, 2024

                                           BEFORE
                           THE HON'BLE MR. JUSTICE M.G.S.KAMAL


                     CIVIL REVISION PETITION NO. 200082 OF 2023
                                            (RES)
                   BETWEEN:

                   KARNATAKA STATE BOARD OF AUQAF,
                   "DARUL AWKAF", NO. 6,
                   CUNNINGHAM ROAD,
                   BENGALURU-560052.
                   BY ITS CHIEF EXECUTIVE OFFICER.
                                                                  ...PETITIONER
                   (BY SRI P. S. MALIPATIL, ADVOCATE)

                   AND:
Digitally signed
by SACHIN          SRI SYED GHOUSE MOHIUDDIN KHADRI
                   S/O SRI SYED HYDER NOORULLAH KHADRI,
Location: HIGH
COURT OF           AGE: MAJOR, OCC: RETD. GOVT. SERVANT,
KARNATAKA          ALLEGED TO BE MUTAWALLI OF DARGAH
                   HAZRATH PEER PASHA KHADRI (RH),
                   KOPPAL-583231.
                   R/O. H.NO. 3-14-56/B, KARWAN SAHU,
                   KARWAN HYDERABAD.

                                                                ...RESPONDENT
                   (BY SRI SACHIN M. MAHAJAN, ADVOCATE)

                          THIS CRP IS FILED UNDER SECTION       83(9) OF THE
                   WAQF ACT, PRAYING TO I) PASS AN ORDER SETTING ASIDE
                               -2-
                                         NC: 2024:KHC-K:8229
                                    CRP No. 200082 of 2023




THE ORDER DTD. 26.09.2022 PASSED IN MISC.PET.NO.5/2022
ON   THE   FILE   OF   WAKF    TRIBUNAL,    KALABURAGI    AT
KALABURAGI         AND          CONSEQUENTLY         ALLOW
MISC.PET.NO.5/2022     AND     FURTHER     SET   ASIDE   THE
JUDGMENT AND DECREE DTD. 23.12.2020 IN O.S.NO.2/2019
ON THE FILE OF THE WAKF TRIBUNAL, KALABURAGI. II) PASS
AN ORDER REMANDING THE ENTIRE PROCEEDINGS TO THE
WAKF TRIBUNAL, KALABURAGI WITH A DIRECTION TO PERMIT
THE PETITIONER TO FILE WRITTEN STATEMENT AND TO
CONTEST THE PROCEEDINGS IN OS NO.2/2019 AND TO PASS
APPROPRIATE ORDERS THEREAFTER. III) PASS SUCH OTHER
ORDER/ DIRECTION AS THIS HON'BLE COURT DEEMS FIT TO
GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.


     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:


CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL


                       ORAL ORDER

(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

This petition is by the defendant/The Karnataka State

Board of Auqaf, aggrieved by the order dated 26.09.2022

passed in Misc. Case. No.5/2022 by the Karnataka Waqf

Tribunal, Kalaburagi dismissing the petition filed by the

NC: 2024:KHC-K:8229

petitioner/defendant herein under Order IX Rule 13 read

with Section 151 of Code of Civil Procedure.

2. Brief Facts of the case is that:

The respondent herein had filed a suit in OS

No.2/2019 before the Waqf Tribunal Kalaburagi Division

seeking relief of declaration that the office of Mutawalli of

Dargah Hazrat Syed Shah Noorulah Peer Pasha Khadri

(RH) (Sunni) and Masjid Peer Pasha Khadri is hereditary

and said office of Muthawalliship is vested in the Family of

Sufi Syed Shah Hyder Walliullah Khadri (RH) (Sunni) and

to declare that the plaintiff is the present hereditary of

Mutawalli under Section 42 of the Waqf Act, 1995 and for

further direction to carry out necessary corrections in the

Gazette Notification dated 31.01.1974 and for other

incidental relief.

3. That after service of summons the

petitioner/defendant appeared through an Advocate by

name Sri Adbdul Maqhtadir of Kalaburagi and filed a memo

of appearance undertaking to file Vakalath and written-

NC: 2024:KHC-K:8229

statement on behalf of the petitioner/defendant by the

next date of hearing. However, the said counsel did not

file the written-statement and since remained absent,

petitioner/defendant was placed ex-parte. The Tribunal

has taken written-statement as not filed by its order dated

07.09.2019.

4. Thereafter, respondent/plaintiff examined

himself as PW1 and marked 43 documents produced by

the respondent/plaintiff as per Exs.P1 to P43 and posted

the matter for final hearing on merits vide Order dated

02.12.2019. Thereafter, one Sri M.K. Khan an Advocate

represented the defendant by filing the vakalathnama on

09.01.2020 and sought for time to file of necessary

application to recall the order dated 07.09.2019, the

matter was accordingly adjourned on 01.02.2020.

5. That due to COVID-19 Pandemic, the matter

was adjourned from time to time and the application could

not be filed for recalling the order dated 07.09.2019. In

the meanwhile, the arguments on behalf of the plaintiff's

NC: 2024:KHC-K:8229

were advanced and the Tribunal decreed the suit on

23.12.2020.

6. Thereafter the petitioner filed the

Misc.No.5/2022 under Order IX Rule 13 read with Section

151 of Code of Civil Procedure seeking to set aside the ex-

parte judgment and decree dated 23.12.2020.

7. The Tribunal by the impugned order 26.09.2022

dismissed the said Miscellaneous case with costs. Being

aggrieved by the same, the petitioner filed the present

petition.

8. Learned counsel for the petitioner appearing

through video conference submitted that the Tribunal

erred in rejecting the application without considering the

reasons and circumstances, which was explained by the

petitioner for not being able to file the written-statement

and lead evidence. He contends that it was due to the

COVID-19 Pandemic, the respondent could not file the

written-statement and prosecute the matter. He submits

that the Tribunal ought to have adopted liberal approach

NC: 2024:KHC-K:8229

instead of rejecting the application. Hence, seeks for

allowing the petition.

9. Learned counsel for the respondent on the

other-hand justifying the order passed by the Tribunal

submits that the record would indicate that the

petitioner/defendant was completely aware of the

pendency of the proceedings having engaged the counsel

who did not bother to file either vakalathnama or the

written-statement. He submits that as many as four

hearings took place between 03.05.2019, 07.06.2019,

19.07.2019 and 07.09.2019 and in all these hearings, the

petitioner/defendant was aware of the pendency of the

proceedings. Even, after passing of the decree the

respondent had made an application seeking execution/

implement of the decree. Yet the petitioner/defendant did

not take any steps. Deliberate negligence on the part of

the petitioner/defendant cannot be condoned. He submits

that the respondent is aged about 75 years and the

present petition is filed only to cause harassment and

NC: 2024:KHC-K:8229

undue hardship to the respondent/plaintiff. No grounds are

made out within the provision under Order IX Rule 13 of

Code of Civil Procedure. The Tribunal having adverted to

all these aspect of the matter, has rightly rejected the

application filed by the petitioner warranting no

interference. Hence, seeks for dismissal of the petition.

10. Heard and perused the records.

11. From the facts of the case narrated above and

on consideration of submissions made by learned counsel

for the parties, it is clear that the petitioner herein was

served with the summons in the above proceedings and

was also represented by its counsel. The grounds urged

are that the proceedings/trial was conducted during the

COVID-19 pandemic period and that the first counsel, who

was instructed to appear on behalf of the petitioner though

had filed the memo of appearance, did not file either the

vakalathnama or the written-statement. Similar was

situation with the second counsel who though represented

at the later part of the proceedings by filing the vakalath

NC: 2024:KHC-K:8229

did not file the written-statement, except making oral

submission at the last stage of the hearing.

12. Taking note of the above the Tribunal while

rejecting the application has observed that, since vakalath

had been filed on behalf of the petitioner herein and the

learned counsel for the petitioner had indeed participated

in the proceedings the judgment and decree passed was

therefore not ex-parte. As such petition under Order IX

Rule 13 of Code of Civil Procedure was not maintainable.

13. Admittedly, no written-statement has been filed

on behalf of the petitioner herein. By order dated

07.09.2019 the Tribunal has taken written-statement as

not filed and has thereafter, proceeded to record the

evidence of the plaintiff and has decreed the suit.

14. Order VIII Rule 10 of Code of Civil Procedure

provides as under:

10. Procedure when party fails to present written statement called for by Court: - Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the

NC: 2024:KHC-K:8229

Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

15. Thus the judgment and decree passed in the

absence of written-statement is undoubtedly an ex-parte

decree. In the circumstances one of the remedies available

is filing application under Order IX Rule 13 of Code of Civil

Procedure. [(i) Prakash Chander Manchanda and

Another Vs. Smt. Janki Manchanda, AIR 1987 SC 42;

(ii) Kuvarp Industries, Bangalore Vs. State Bank of

Mysore, AIR 1985 Kant 77 and (iii)M/s M. Manick

Peter and Others Vs. K. Surendranathan, AIR 1988

KERALA 161.]

16. Therefore the reasoning of the Tribunal given in

the impugned order regarding the maintainability of the

petition under Order IX Rule 13 of Code of Civil Procedure

is therefore unsustainable.

17. Not withstanding the above, facts remains that

undisputedly even as evident from the order-sheet of the

Trial Court, Standard Operative Procedure due to COVID-

- 10 -

NC: 2024:KHC-K:8229

19 pandemic was on operation. The petitioner is statutory

authority required to be represented though an human

agency. Hardship of the learned counsel for the petitioner

in obtaining necessary instructions to file the written-

statement and prosecute the matter, from the concerned

officers of the petitioner- Waqf Board during the COVID-19

pandemic cannot be ignored.

18. No doubt the petitioner was represented

through the counsel, but the fact remains that written-

statement was not filed, evidence was not filed, the

witnesses were not cross-examined. Merely because the

submission was made by the counsel at the last hearing

date cannot be held to be a sufficient representation and

effective prosecution of the matter. Furthermore, the

dispute is in respect of Waqf institution for the office of

Mutawalli. It is not in respect of any private proprietary

rights. This needs to be kept in mind.

19. For the aforesaid reasons and analysis of the

matter, this Court is of the considered view that the

- 11 -

NC: 2024:KHC-K:8229

petitioner afforded with an opportunity of filing written-

statement and cross-examining the petitioner witness and

adducing its own evidence. However considering the

pendency of the matter the respondent herein be paid cost

for the delay. Accordingly, the following:

ORDER

1. The petition is allowed. The order dated

26.09.2022 passed in Misc. No.05/2022 on the

file of the Karnataka Waqf Tribunal, Kalaburagi

is set aside. Consequently Misc. No.05/2022 is

allowed. Ex-parte decree passed in OS

No.02/2019 is set aside.

2. The petitioner-The Karnataka State Board of

Auquaf shall file the written-statement within

30 days from the date of receipt of certified

copy of this order, without seeking any further

extension of time. The Tribunal after affording

sufficient opportunities to the petitioner to lead

evidence dispose of the matter within outer