Madras High Court

Aliya Ibrahim vs Sherfunnissa Begum Sahiba Mosque Wakf on 13 August, 2024

                                                                                  C.R.P.(PD).No.3212 of 2024


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 13.08.2024

                                                          CORAM :

                              THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN

                                                C.R.P.(PD).No.3212 of 2024
                                                and C.M.P.No.17148 of 2024

                    Aliya Ibrahim                                          .. Petitioner

                                                           Versus
                    1. Sherfunnissa Begum Sahiba Mosque Wakf
                       Represented by its Secretary,
                       New No.460, Old No.592,
                       Anna Salai, Chennai - 600 006.

                    2. Riyaz Ahmed Khan                             .. Respondents


                    Prayer : Civil Revision Petition filed under Article 227 of the Constitution

                    of India to set aside the fair and decreetal order, dated 08.07.2024 passed in

                    E.A.No.10 of 2023 in E.P.No3059 of 2021 in O.S.No.5922 of 2002 by the

                    IX Assistant City Civil Court at Chennai.


                                     For Petitioner      : Mr.L.Gavaskar

                                     For Respondents : Mr.Hussain Afroze




https://www.mhc.tn.gov.in/judis

                    1/11
                                                                               C.R.P.(PD).No.3212 of 2024


                                                        ORDER

This Civil Revision Petition arises against the order passed in

E.A.No.10 of 2023 in E.P.No.3059 of 2021 in O.S.No.5922 of 2002 on the

file of the IX Assistant City Civil Court at Chennai.

2. The civil revision petitioner is the judgment debtor. O.S.No.5922

of 2002 was presented for the purpose of ejectment by the first

respondent/plaintiff. The first respondent/plaintiff is a surveyed and

notified waqf. It is admittedly the owner of the property. The suit was

contested by the civil revision petitioner, as in the case of such suits, it came

to be decreed by the I Assistant Court-cum-Waqf Tribunal at Chennai on

07.02.2008. Aggrieved by the same, the civil revision petitioner preferred

an appeal before the V Additional City Civil Court in A.S.No.370 of 2008.

The decree passed on 07.02.2008 stood confirmed by the learned V

Additional Judge on 23.08.2010. Since the decree had been confirmed and

as the civil revision petitioner had not handed over the possession of the

property, the first respondent filed E.P.No.3059 of 2021 for taking delivery

of possession.

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3. When the matter was listed before the executing Court on

12.09.2023, there was no representation on behalf of the judgment debtor.

Therefore, he was set ex parte. In order to set aside the ex parte order, an

application was filed invoking Order XXI Rule 106(3) of the Code of Civil

Procedure by the civil revision petitioner.

4. The learned Judge issued notice in the said application and

received a counter from the first respondent/decree holder. The first

respondent/decree holder pointed out that it has become a habit for the civil

revision petitioner to leave the matters ex parte and thereafter, come up with

applications to set aside the same. It would point out that the proceeding

has been dragged on for 14 years from the date of dismissal of lower

Appellate Court and still the judgment debtor had been enjoying the

property and at the same time, denying the benefits of the decree to the first

respondent. It would also point out that two applications have been filed in

E.A.No.6 of 2022 and E.A.No.7 of 2022 to condone the delay of 140 days in

filing the application to set aside the ex parte order and on account of the

grace that had been given by the Court, the said delay had been condoned.

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It would point out that there are absolutely no merits in the application and

sought for dismissal of the same.

5. The learned Trial Judge took into consideration that the civil

revision petitioner had already been set ex parte on 25.03.2022 and had the

benefit of an order setting aside the same and yet again, had gone about to

leave the proceedings ex parte on 12.09.2023 and therefore, felt that the

petition is vexatious and hence dismissed the same. Against which, the

present petition is filed.

6. When the matter came up for hearing on 09.08.2024,

Mr.L.Gavaskar would submit that it was on account of the fact that the

learned IX Assistant Judge was on Casual Leave, the matter was called

before the learned X Assistant Judge. The party, who did not know the

difference between the two Courts, was unable to be present before the

learned X Assistant Judge in order to represent the matter. He would state

that the Counsel himself was held up before another Court and therefore,

there was no representation on the side of the judgment debtor which

resulted in the ex parte order. Taking into consideration this plea, I directed

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Mr.L.Gavaskar to serve the entire set of papers on Mr.Hussaif Afroze and

posted the matter today to hear him on the merits of the case.

7. Mr.Hussain Afroze would stiffly oppose the application and draw

my attention to the e-Courts adjudication. He would point out that

E.A.Nos.6 and 7 of 2022 itself were dragged on for nearly a period of one

year and it had been finally allowed on 07.07.2023. He would point out that

within two months of the order being set aside, yet again the judgment

debtor had left the proceedings ex parte. He would state that there are

absolutely no merits in the revision. The purpose of this revision is only to

drag on the matter and somehow or the other, stick on to the property which

admittedly belongs to a charitable institution. He would state that the plea

that the party was confused between the two Courts is absolutely irrelevant

and that the parties should have been vigilant enough to be present in the

Court because he had already been set ex parte once before. Therefore, he

would pray for dismissal of the revision.

8. I have carefully considered the arguments of Mr.L.Gavaskar and

Mr.Hussain Afroze.

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9. It is not in dispute that the suit in O.S.No.5922 of 2002 was

decreed. It is further not in dispute that the appeal preferred therefrom also

ended in dismissal. In other words, the decree of eviction has attained

finality. There was a delay in initiating the execution proceedings on

account of the fact that the first respondent/plaintiff was represented by an

Executive Officer and not by the trustees. It is only after the duly appointed

trustees have taken over, they have taken steps to execute the decree

obtained in the year 2008. Mr.L.Gavaskar's claim that the receipts have

been issued by the Executive Officer and therefore, a new tenancy had been

entered between the parties, is absolutely irrelevant because no new lease

agreement has been produced before the Court.

10. The property is a Waqf property and not a private property. A

person in occupation as a tenant would necessarily have to produce a lease

deed as there cannot be a lease for a Waqf property over a period of three

years, unless and until, it has a sanction of the Waqf board. A Mutawalli or

an Executive Officer who stands in place of a trust board is equally bound

by the Waqf Act. He can, at best, enter into a lease agreement for a period

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of 11 months. For any period above the period of 11 months, necessarily, it

requires a sanction of the Waqf board. Therefore, the argument of

Mr.L.Gavaskar that he continues to be a tenant to the property requires

nothing but an order of rejection.

11. Nonetheless, I would take note of the fact that Mr.L.Gavaskar

would plead that he was not in a position to appear in the Court on

25.09.2023 on account of the fact that he was held up in another Court.

There had been several Courts in this city of Madras. It is possible that

Mr.L.Gavaskar would have held up in another Court. The reason why the

judgment debtor is not present is also equally convincing. The judgment

debtor, being a Muslim lady, would not have been aware that there are two

Courts functioning for the purpose of execution namely, the IX and X

Assistant Court. I am able to perceive that she would have been present in

the Court where the matter is regularly called namely, the IX Assistant

Court and since the judicial officer is not present, she would have left the

premises. Therefore, I am able to appreciate the difficulty in which the

Counsel as well as the party had been placed.

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12. At the same time, I cannot be insensitive to the fact that the decree

holder has been knocking at the doors of the Court for the past 22 years and

is yet to see the fruits of the decree. Insofar as the plea of Mr.Hussain

Afroze is concerned, that even in the year 2022, the judgment debtor had

remained ex parte and therefore, second application is not maintainable, I

need not labour myself very much on this point. As per the Order XXI Rule

106 of the Code of Civil Procedure, the party must give reasonable

explanation for why he was not present on the date of hearing. The fact that

he had previously become ex parte becomes irrelevant because that absence

had already been condoned by the Court and the ex parte order passed

against him had been set aside. For this, position of law has been settled by

the Supreme Court of India in G.P.Srivatsava Vs. R.K.Raizada and Ors.,

(2000) 3 SCC 54. Therefore, the sheet anchor of the argument of

Mr.Hussain Afroze does not require any consideration.

13. In the light of the above circumstances, this Civil Revision

Petition stands allowed but on the following conditions:-

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(i) The first respondent/plaintiff will be compensated by a sum of

Rs.20,000/- by the civil revision petitioner on or before 20.08.2024. On

such payments, E.A.No.10 of 2023 will stand allowed;

(ii) The learned IX Assistant City Civil Court at Chennai is requested

to dispose of the Execution Petition on or before 30.09.2024 after hearing

the arguments of both the decree holder and the judgment debtor;

(iii) The learned Judge shall submit a report of compliance of this

order on or before 14.10.2024;

(iv) The learned Judge shall take note of the fact that the decree has

been pending execution for more than 12 years and shall ensure that

unnecessary adjournments are not granted either to Mr.L.Gavaskar or to

Mr.Hussain Afroze.