Madras High Court
Al Jamiyathus Salafia vs Syed Afsar @ Babu on 4 January, 2022
C.R.P.(PD) No.1260 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
C.R.P. (PD) No.1260 of 2019
and C.M.P. No.8212 of 2019
Al Jamiyathus Salafia,
Represented by its Present Secretary K.Aslam Basha,
No.58, Rahmadabad, 1st street,
Pernamput – 635 810,
Vellore District. .. Petitioner
Vs.
1. Syed Afsar @ Babu
2. Shainaz Begum
Both represented by its Power Agent
N.Riyaz Ahmed,
Asanambut Road, Ambur Town,
Vaniyambadi Taluk,
Vellore District. .. Respondents
Civil Revision Petition is filed under 115 of Civil Procedure Code, to set
aside the impugned order dated 04.12.2018 in I.A. No.3 of 2018 in A.S. No.
Nil of 2018 on the file of the Ld. Principal District Judge, Vellore and allow
this Civil Revision Petition, so that the appeal be decided on its merits.
1/6
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C.R.P.(PD) No.1260 of 2019
For Petitioner : Mr. Inthu Karunakaran
For Respondents : Mr. T.M.Hariharan
ORDER
Aggrieved by the order in I.A. No.3 of 2018 in unnumbered appeal suit
filed by the petitioner as appellant before the Principal District Judge,
Vellore, dismissing the application filed to condone the delay of 1551 days in
filing the appeal as against the judgment and decree of the Subordinate Judge,
Gudiyattam in O.S. No.23 of 2008, this Civil Revision Petition is preferred.
2. Brief facts that are necessary for the disposal of the Civil Revision
Petition are as follows:
The revision petitioner is the defendant in suit in O.S. No.23 of 2008 on
the file of Sub Court, Gudiyattam. The suit is for declaration of plaintiff's title
over the suit property and for recovery of possession. The suit is also for
permanent injunction restraining the defendant organization from putting up
any kind of construction over the suit schedule property. The further prayer is
also for mandatory injunction directing the defendant to demolish and remove
all the constructions put up by the defendant within the suit property.
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C.R.P.(PD) No.1260 of 2019
3. This Court, having regard to the nature of dispute, is able to see that
the plaintiff in the suit has filed the suit in respect of the property which is
adjacent to the existing mosque constructed by the revision petitioner. The
revision petitioner is a Society and it can also be recognised as a Waqf. The
suit was contested by the revision petitioner on many grounds. From the
averments in the written statement, it is seen that the defendant was made as
part or unit of another organization which is also having the same principles
of Islam. It is stated by the revision petitioner that there was an attempt by the
bigger Organization to keep the revision petitioner as part of their
organisation and that the said idea prompted them to claim property right over
the property which was purchased for the benefit of the revision petitioner.
Though further details are not necessary for the present revision petition, it is
admitted that the suit filed by the respondent was decreed by judgment and
decree dated 19.08.2013. Three years later, an execution petition in E.P.
No.30 of 2017 was also filed. However, as against the judgment and decree,
the revision petitioner preferred an appeal with a delay of 1551 days in filing
the appeal. The reasons stated in the affidavit filed in support of the condone
delay petition was that the newly elected committee which has assumed office
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C.R.P.(PD) No.1260 of 2019
in December 2017, came to know about the non-filing of appeal just a few
days before the application to condone the delay was filed. It is further stated
that the then Secretary who was contesting the matter on behalf of the
revision petitioner organization failed to file appeal even though it was
presumed that an appeal had actually been filed against the judgment and
decree in O.S. No.23 of 2008.
4. Though a counter affidavit was filed by the respondent herein denying
the averments, this Court is unable to disbelieve the reasons for the delay. The
revision petitioner is an organization which is formed as Waqf for the welfare
of people who professes Islam and recognised to be part of a particular
religious sect. The dispute relates to a piece of a land just in front of the
mosque and hence the sentiments of people who are attached to the mosque
can be sensed. In such matters, the Court is not expected to take a pedantic
approach. The petitioner has given an explanation which cannot be ignored
especially in the light of an apology letter given by the erstwhile Secretary of
the revision petitioner. Due to inaction of the erstwhile Secretary, the present
office bearers are now put to this perilous position. The petitioner's interest to
protect the society cannot be ignored.
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C.R.P.(PD) No.1260 of 2019
5. Having regard to the decree that was granted, the revision petitioner
would be put to serious prejudice and it is likely to affect the community
interest. In such circumstances, showing lenience, this Court is inclined to
exercise its discretion to advance the cause of justice. However, considering
the fact that the delay is inordinate and it could have been avoided, this Court
is of the view that the respondent should be compensated for the
inconvenience put to them. Hence, the revision petitioner shall pay a sum of
Rs.10,000/- to the respondent counsel within a period of two weeks from the
date of receipt of a copy of this order.
6. Accordingly this Civil Revision Petition is allowed subject to the
payment of the above cost indicated above. Consequently, connected
miscellaneous petition is closed. The application in I.A. No.3 of 2018 in A.S.
No. Nil of 2018, stands allowed on payment of cost above mentioned.
04.01.2022
Speaking order / Non-speaking order
Index: Yes / No
bkn
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C.R.P.(PD) No.1260 of 2019
S.S.SUNDAR, J.,
bkn
To
The Principal District Judge, Vellore.
C.R.P. (PD) No.1260 of 2019
04.01.2022
https://www.mhc.tn.gov.in/judis
