Irinchayam Maithani Puthenpalli ... vs Sajad Saher. M
2023 Latest Caselaw 11400 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE AMIT RAWAL
                                   &
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
   WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945
                     OP (WAKF) NO. 34 OF 2023
AGAINST THE ORDER/JUDGMENT OS 14/2023 OF WAKF TRIBUNAL, KOZHIKODE
PETITIONER(S)/1st PLAINTIFF:

    1     IRINCHAYAM MAITHANI PUTHENPALLI MUSLIM JAMA-ATH
          POOVATHUR P. O NEDUMANGAD, THRIVANANTHAPURAM
          REPRESENTED BY ITS SECRETARY, NIZARUDEEN,
          AGED 50 YEARS, S/O. ABBAR, PIN - 695561

    2     NIZARUDEEN A
          AGED 50 YEARS
          S/O. ABBAR KIZHKKUMKAREVEEDU, IRINCHAYAM P. O
          NEDUMANGAD, THIRUVANANTHAPURAM, PIN - 695561
          BY ADVS.
          SREEKANTH S.NAIR
          SANDEEP P JOHNSON


RESPONDENT(S)/3RD DEFENDANTS:

    1     SAJAD SAHER. M
          AGED 55 YEARS
          S/O. ISMAIL. AYANIMOODUVEEDU, IRINCHAYAM P. O
          NEDUMANGAD, THIRUVANANTHAPURAM, PIN - 695561

    2     MUHAMMEDJAJI
          AGED 60 YEARS
          S/O. SHAMSUDEEN SAMEER MANSIL, THANNIMOODU
          IRINCHAYAM P. O ,THIRUVANANTHAPURAM, PIN - 695561

    3     CIRCLE INSPECTOR OF POLICE
          O/O. CIRCLE INSPECTOR OF POLICE NEDUGMANGAD,
          THIRUVANANTHAPURAM, PIN - 695541

    4     KERALA STATE WAKF BOARD
          KERALA STATE WAKF BOARD, KALOOR, KOCHI,
          REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.,
          PIN - 682017
 OP (WAKF) NO. 34 OF 2023             -2-



    5     HASHIM
          AGED 38 YEARS
          S/O. SALIM, SECRETARY, IRINCHAYAM MAITHANI PUTHENPALLI
          JAMA- ATH, POOVATHOOR, POOVATHOOR P. O, NEDUMANGAD,
          NEDUMANGAD VILLAGE, THIRUVANANTHAPURAM, PIN - 695561

    6     SALIM
          AGED 62 YEARS
          PRESIDENT, IRINCHAYAM MAITHANI PUTHENPALLI JAMA- ATH,
          POOVATHOOR, POOVATHOOR P. O, NEDUMANGAD, NEDUMANGAD
          VILLAGE, THIRUVANANTHAPURAM, PIN - 695561

          BY ADV.
          SRI JAMSHEED HAFIZ SC WAQF


               THIS    OP   (WAKF)    HAVING   COME   UP   FOR   HEARING   ON
          08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
          FOLLOWING:
 OP (WAKF) NO. 34 OF 2023       -3-



                            JUDGMENT

AMIT RAWAL, J.

1. Petitioners are plaintiffs in the suit bearing

No.14 of 2023 wherein a decree of prohibitory

injunction has been sought against respondents

Nos.1 and 2 restraining their men and agent for

forcibly entering into Jama-ath property and holding

of General Body on 26.02.2023 at a particular time.

The suit was filed on 20.02.2023. Opposite party had

already appeared and filed the objection. However,

in June, 2023 an application Ext.P10 for seeking

amendment of Paragraph No.9 of the plaint as well

as the prayer, was submitted in the following

manner:

" (a) Amendment sought to be incorporated as para 9(a) after para 9 in the O.S.

9(a) The officer appointed by the Kerala State Waqf Board visited the Jama- ath premises on

26.02.2023 and filed report dated 03.03.2023 before this Hon'ble Tribunal. It is stated in the report that the existing Jama- ath has not called any meeting of its members. At 2:30 PM around 125-150 persons came to the Jama- ath premises and conducted a meetings and they unilaterally elected 11 members and declared it as the committee and ade defendant 6 & 7 are nominated as Secretary and President of the committee. The said meeting was unlawful and the election was illegal and violation of the provisions of the bye-law. According to the bye- law the General Body was convened on 30.12.2022 and the election was conducted and 11 members including President and Secretary were also elected. The claim of the add'l defendants 6 & 7 that they are the president, secretary of the Jama- ath and their 11 member committee is the original committee is false and such a committee never came into existence and the meeting and election of the committee on 26.02.2023 is void ab initio, and hence the same has to be set aside accordingly.

(b) Amendment sought to be incorporated as para D after para C in the prayer portion of the suit.

D) A decree declaring the meeting and the election of the 11 member committee

conducted on 26.02.2023 is null and void and liable to be set aside.

(c) Amendment sought to be incorporated as para 10 (a) after para 10 in O.S

10 (a) valuation of prayer D, declaration to set aside, u/s. 25 (d) (ii) of the Kerala Court Fees and Suit Valuation Act, 1959 Rs. 1,000/-. Court fee payable is Rs. 40/-."

It is contended that the Tribunal has not adjudicated

the said application and posted the matter for

evidence.

2. We have heard learned counsel for the

petitioners and appraised the paper book and of the

view that it is a fit case for disposal of the petition

without issuing notice to the respondents as it will

defray the cost of litigation, for, the prayer for

seeking the amendment as sought is required to be

decided either way and cannot be permitted to be

kept pending. It would be improper for the Tribunal

to proceed ahead with the trial as the evidence would

be beyond the pleadings.

3. Accordingly we dispose off the petition by

issuing directions to the Tribunal to decide

I.A.No.822 of 2023, for amendment before

proceeding ahead with the trial of the suit as

expeditiously as possible. At this stage, learned

counsel for the petitioner submits that the next

posting date of the suit before the Tribunal is

16.11.2023. Copy of order is directed to be handed

over by hand.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S. SUDHA JUDGE vv

APPENDIX OF OP (WAKF) 34/2023

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF O.S NO. 14/2023 FILED BY PETITIONERS BEFORE HON'BLE TRIBUNAL.

EXHIBIT P2 TRUE COPY OF I. A NO. 135/2023 FILED BY THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE REPORT DATED 03.03.2023 SUBMITTED BY LD CLERK OF 4TH RESPONDENT.

EXHIBIT P3 (A) TRUE TRANSLATION OF EXHIBIT P3.

EXHIBIT P4 TRUE COPY OF I. A NO. 193/2023 FILED BY THE PETITIONER BEFORE THE THE HON'BLE TRIBUNAL.

EXHIBIT P5 TRUE COPY OF ORDER NO.C2-SR- 84/2023 DATED 19.05.2023 ISSUED BY CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD.

EXHIBIT P5 (A) TRUE TRANSLATION OF EXHIBIT P5.

EXHIBIT P6 TRUE COPY OF LETTER NO.

A8-4433/2020/TVM DATED 17.06.2023 ISSUED BY THE 4TH RESPONDENT TO ADV. M. ZIYAD .

EXHIBIT P6 (A) TRUE TRANSLATION OF EXHIBIT P6.

EXHIBIT P7 TRUE COPY OF ABSTRACT PROCEEDINGS OF HON'BLE WAQF TRIBUNAL, KOZHIKODE DATED 11.09.2023.

EXHIBIT P8 TRUE COPY OF ABSTRACT PROCEEDINGS OF HON'BLE WAQF TRIBUNAL, KOZHIKODE DATED 26.09.2023.

EXHIBIT P9 TRUE COPY OF THE OBJECTION IN I. A 439/2023 FILED BY THE PETITIONER.

EXHIBIT P10 TRUE COPY OF AMENDMENT APPLICATION I.

A NO. 822/2023 IN O. S 14/2023 SUBMITTED BY THE PETITIONER.

EXHIBIT P11 TRUE COPY OF INJUNCTION APPLICATION I.

A NO. 821/2023 IN O. S 14/2023 SUBMITTED BY THE PETITIONER.

EXHIBIT P12 TRUE COPY OF PROSECUTION APPLICATION I. A NO. 823/2023 IN O. S 14/2023 SUBMITTED BY THE PETITIONER.

EXHIBIT P13 TRUE COPY OF ABSTRACT PROCEEDINGS OF HON'BLE WAQF TRIBUNAL, KOZHIKODE DATED 10.10.2023.

EXHIBIT P14 TRUE COPY OF ABSTRACT PROCEEDINGS OF HON'BLE WAQF TRIBUNAL, KOZHIKODE DATED 11.10.2023.

EXHIBIT P15 TRUE COPY OF COUNTER FILED BY RESPONDENTS 6 & 7 IN I. A NO.

821/2023.

EXHIBIT P16 TRUE COPY OF COUNTER FILED BY RESPONDENTS 6 & 7 IN I. A NO.

822/2023.

EXHIBIT P17 TRUE COPY OF COUNTER FILED BY RESPONDENTS 6 & 7 IN I. A NO. 823/2023

EXHIBIT P18 TRUE COPY OF ABSTRACT PROCEEDINGS ON 01.11.2023.