the judgment and decree dated 08.02.2000 in A.S. No.62 of 1995 on the file
Additional Chief Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the parties are hereinafter referred as
3. The plaintiffs filed O.S No.1416 of 1989 for recovery of
mesne profits @ Rs.500/- per month. The case of the plaintiffs was that the
Sq. Yds., covered with a tin shed. The GPA of plaintiff No.1 executed a
subsequently enhanced to Rs.25/- per month. Syed Muzafaruddin Khan
Dr.GRR,J
was the Muthawali of the Dargah. The GPA holder of Syed Muzafaruddin
Khan was Mr. Khaleelullah Quraishi. Syed Muzaffaruddin Khan died in
USA in May, 1988. The defendant No.1 paid rents to Syed Muzaffaruddin
Khan till March 1985 and thereafter stopped paying rents. The defendant
aggregating to Rs.11,110/- @ Rs.25/- per month. But, the plaintiffs limited
the case for arrears of rents for three years from April 1985 to March, 1988.
Muzaffaruddin Khan. Plaintiff No.1 issued a legal notice to the defendant
vacate the premises and to hand-over the vacant possession of the property.
reply. The defendant No.1 unauthorizedly opened three doors towards main
premises. The defendant No.1 was also using a portion of the graveyard as
a cycle and auto rickshaw stand. The committee of Mosque protested for
committing all these illegal acts by defendant No.1. A religious school was
insufficient. As the defendant No.1 committed default in paying the rents
Dr.GRR,J
tying the buffaloes, keeping rickshaws in the suit schedule property. The
plaintiff further claimed arrears of rents and future mesne profits.
4. The defendant No.1 filed written statement contending that the
suit property was not Wakf property. The defendant No.1 obtained 250 sq.
Hyderabad. He further contended that Syed Muzaffaruddin Khan was the
on lease from him. While Syed Muzaffaruddin Khan was in USA, one
to collect rents and issued receipts to him. He collected rents upto May,
1988 and thereafter did not collect the same. He further submitted that he
was running firewood stall and Kirana shop in the suit premises from 1959.
and denied tying of buffaloes in a portion of the graveyard. He further
contended that the plaintiff No.2 i.e. Wakf Board filed OP No.140 of 1989
Dr.GRR,J
5. Basing on the above said pleadings, the trial Court framed the
6. An additional issue was also framed as follows:
7. On behalf of the plaintiffs, the GPA holder of Gulam Dasthagir
Khan i.e. Syed Qadir Ali Khan was examined as PW.1 and Exs.A.1 to A.19
8. During pendency of suit, defendant No.1 died and he was
represented by his legal representatives i.e. defendants Nos.2 to 10. The
Exs.B.1 to B.7 were marked on behalf of the defendants.
9. The trial Court, on considering the oral and documentary evidence
within two months from the date of the judgment. The trial court further
10. Aggrieved by the said judgment and decree passed by the VI
preferred an appeal. The appeal was heard by the VIII Additional Chief
Assistant Judge, City Civil Court, Hyderabad.
11. The first appellate court while confirming that the suit schedule
without consultation of State Wakf Board. The learned Judge further
occupied an extent of 200 sq. yds., in the graveyard as Ex.A.1-Rental Deed
would not disclose the extent and area given to the defendant No.1. The
the Mosque and damaging the sanctity of the Mosque.
12. Aggrieved by the reversal of the said judgment in A.S. No.62 of
2. Whether the relief of eviction can be refused only on the
ground that the date of termination is not mentioned in the
notice issued under Section 106 of the T.P. Act when the
notice is clear that the tenancy is terminated with effect
from one month from the date of notice?
Dr.GRR,J
3. Whether proof of execution of rental deed is essential when
there is no dispute with regard to commencement of
tenancy in the year 1959 and also with regard to ownership
of the suit schedule property?
13. This Court on 02.03.2001 admitted the second appeal on the
ground:
"Whether a party can be permitted to raise the plea as to
validity of the quit notice for the first time in appeal, without
there being any such plea or foundation laid in the trial Court
and also the correctness of the said notice as pointed out in
ground No.10?
14. During pendency of the second appeal, an application was filed
by the defendants vide SAMP No.1901 of 2006 to receive letter dated
2.8.2006 addressed by plaintiff No.2 as additional evidence contending that
the appellant No.2 extended the lease up to 2.7.2002 on its own accord and
that a fresh lease came into existence. As such, the matter was remanded by
this Court to the trial court on 11.10.2006 by framing an additional issue as
follows:
"Whether any fresh lease was granted in favour of the
defendants, during the pendency of the present set of
proceedings, and if so, the affect thereof, on the relief claimed
in the suit?"
15. On remand, the said issue was decided by the learned VI Junior
Civil Judge, City Civil Court, Hyderabad, after giving an opportunity to
Dr.GRR,J
both the parties to adduce evidence and to mark documents on their behalf.
The GPA holder of the plaintiff No.1 was examined as PW.2 and the
Inspector/Auditor of the Wakf Board was examined as PW.3. The
document authorizing PW.3 permitting him to give evidence was marked as
Ex.A20. The daughter of the defendant No.1 i.e. defendant No.8 was
examined as DW.2 and Exs.B8 to B21 were marked afresh on behalf of the
defendants.
16. On considering the oral and documentary evidence adduced by
the parties afresh, the trial court held that a fresh tenancy was created in
favour of the defendant No.2 and the same was transferred in favour of
defendant No.8 under Ex.B.13 and as per the directions under Ex.B.13, the
defendant No.8 also submitted rental deed paper worth Rs.380/- in favour of
plaintiff No.2, as such, the defendant No.8 had discharged the burden laid
upon her to show that a fresh lease was created in favour of her mother
(deceased defendant No.2) during her lifetime and the same was transferred
in her favour for 11 months and the plaintiff No.2 had knowledge about the
litigation pending between the plaintiff and defendants while granting such
fresh lease. Even in the absence of any registered lease deed, tenancy can
be created orally and registration of such tenancy was not required in the
year 2000 therefore, non-filing of the registered lease deed and non-entering
Dr.GRR,J
into an agreement much less registered lease deed would not effect the case
of defendant No.8 and further held that the suit is liable to be dismissed in
view of the fresh tenancy created in favour of defendant No.8 by plaintiff
No.2.
17. After receipt of the matter from the trial court after answering the
additional issue, the appellants-plaintiffs filed I.A. No.1 of 2023 raising
further substantial questions of law as follows:
1. Whether the finding of the Civil Court in its order dated
02.02.2007 observing that tenancy was granted in favour of
Zainab Begum on 03.08.2001 which expired on 02.07.2002
would not amount to by-passing Section 93 of the Wakf
Act, more so, in view of the fact that no resolution of the
Board exists granting lease either in 2001 or in 2002 and
whether the same would amount to perversity in law as
there is no evidence or resolution of the Board or lease deed
executed with the approval of the Board?
2. Where there is no jurisdiction to 2nd appellant herein to
execute Lease Deed for less than one year, whether the
proceedings dated 02.08.2006 issued by 2nd respondent
ought to be ignored? More so, in view of the fact that there
is no resolution of the Board nor any written lease deed
executed by the 2nd appellant herein. As such the finding of
the trial court in its order dated 02.02.2007 is perverse?
3. Whether after having legally entered into possession of the
property to the extent of 50 sq. yds. and thereafter
encroaching upon 200 sq. yds. of additional land for
construction of kirana shop, tying of buffaloes and parking
of rickshaws and auto rickshaws would amount to
Dr.GRR,J
encroachment, within the meaning of Section 54 of Waqf
Act, for eviction of which the suit came to be filed
in O.S.No. 1416 of 1989?
4. Whether continued occupation of the Respondents, without
there being any lease deed executed in their favor would
amount to unauthorized occupation and would be deemed
as encroachers under Section 3 (ee) of Waqf Act, 1995, as it
stands today in view of amending Act 27 of 2013?
5. Whether a suit, which is comprehensively filed seeking the
relief of injunction against the defendants, apart from
restraining them from using other portions of the grave yard
which are not being leased out and restraining them from
damaging the graves and disturbing the sanctity of the
Dargah, can be refused only on the ground that there has
been acceptance of rents for 50 sq yds of land for which
lease deed was executed, though it has subsequently been
cancelled?
6. Since the Second Appeal is nothing but continuation of suit
proceedings, whether termination of tenancy by
proceedings dated 02.08.2006, not being taken note of by
the Court of VI Junior Civil Judge in its order dated
02.02.2007 would amount to perversity in law, in as much
as, as on the date of passing of the order, the Waqf Act
clearly provides under Section 56 that no lease of property
can be granted for a period exceeding one year and not
exceeding three years unless it is made with the previous
sanction of the Waqf Board, which is lacking in the present
case?
7. Whether the concept of "tenant at sufferance" can be
applied for the leases granted under Waqf Act and be taken
advantage of, by unscrupulous lessees so as to defeat the
very purpose of Sections 56 and 54 of the Act?
8. Whether a suit, which is comprehensively filed seeking the
relief of injunction against the defendants, apart from
Dr.GRR,J
restraining them from using other portions of the grave yard
which are not being leased out and restraining them from
damaging the graves and disturbing the sanctity of the
Dargah, can be refused only on the ground that there has
been acceptance of rents for 50 sq yds of land for which
lease deed was executed, though it has subsequently been
cancelled?
18. In view of the subsequent event of entering into fresh lease by
the plaintiff no.2 in favour of defendant No.2, which was transferred in
favour of defendant No.8 under Ex.B13, the earlier substantial question of
law on which the second appeal was admitted became redundant and the
following substantial question of law is framed afresh:
"Whether the occupation of the respondents in the suit
schedule property amounts to unauthorized occupation and
whether they can be considered as encroachers under
Section 3(ee) of the Wakf Act, 1995 as amended by the
Wakf (Amendment) Act, 2013 (27 of 2013)?"
19. Heard Sri Sudeep Reddy, learned counsel, representing Sri
K. Raghuveer Reddy, learned counsel for the appellants on record and Smt.
Manjari S. Ganu, learned counsel for the respondents.
20. The learned counsel for the appellants submitted that the father
of the plaintiff No.1, Pasha Mohiuddin Khan, had created the Wakf and
filed an application to the Wakf Board under Ex.A3 in the year 1944 which
would show that the Muthawali should be held by his sons in the order of
Dr.GRR,J
succession and the same was recognized by the Wakf Board. Syed
Mazafaruddin Khan, who passed way, was the first Muthawali and the
plaintiff No.1 was none other than his brother. The Wakf Board was also
joined as a party in the suit so that the defendants could not raise any
objection that the plaintiff could not institute the suit. The present Wakf
would fall under Section 3(r)(iii) of the WAkf Act 1995, which was
recognized as Wakf-alal-aulad which would mean that the property
dedicated for any purpose recognized by Muslim Law as pious, religious or
charitable. The income of the Wakf property should be spent for education,
development, welfare and such other purposes as recognized by Muslim
Law. The appellant before this Court was none other than the son of the
original Wakeef i.e. the person who dedicated the property towards Wakf,
as such the present property was not only a Wakf property, but it was a
specified form of Wakf and the children of the original Wakif had to be
treated as Muthawalies in the line of succession. The claim of the
defendants that another lease deed was executed or oral lease deed was
given by the plaintiff No.2 would not stand to scrutiny of law in as much as
the original Wakf Act, 1995 which stood prior to Amendment Act 27 of
2013 would clearly state that Wakf can be given on lease only by way of a
deed or an instrument and the Wakf Act would not permit grant of lease
Dr.GRR,J
orally as held by this Court in the case of Mohammed Yousuf Ali v. AP
State Wakf Board1. Learned counsel for the appellants further contended
that there was no express prohibition for grant of lease of immovable
property by Muthawalies of Wakfs, initially in the Wakf Act, 1954. For the
first time by way of Amendment Act 69 of 1984, certain restrictions came
to be placed on the power of Wakf Board for grant of lease of Wakf
properties by way of Section 36 (F) which provided that lease or sub-lease
for any period exceeding 3 years of immovable properties shall be null and
void irrespective of any deed or instrument empowering the lease of
immovable properties for any period exceeding three years. Where the
lease period was exceeding one year and not exceeding three years, the
previous sanction of the Board also was stated to be necessary. The renewal
of lease should be made only after reviewing the terms and conditions of
lease or sub-lease. Simultaneously Section 36 (D) would provide for
removal of encroachments from Wakf properties. It was clearly stated in the
proviso to Section 36(D)(iv) that no suit could be instituted by a person who
had been let into possession of land, building or any other property as a
lessee or mortgage by Muthawali of the Wakf or by any other person
authorized by him in this behalf. The said restrictive provisions were
introduced in the Wakf Act in the year 1984 so as to put a check not only on
2013 (1) ALD 589
Dr.GRR,J
encroachments of Wakf properties under the guise of lawful occupation by
the lessees, but also to curb the power of Muthawali of Wakf in granting
lease. After enactment of Act 43 of 1995, substantially the very same
provisions were incorporated in the new Act as Section 56 (restriction of
power to grant lease) and Section 54 (which dealt with removal of
encroachment from the wakf property). By further amendment by Act 27 of
2013, the power of granting lease of Wakf property required further
supervision of the State Government where the Wakf property was intended
to be leased out for a period exceeding 30 years and in case of agricultural
land, for a period exceeding three years. Another additional safeguard was
that the details of lease were to be compulsorily published in daily
newspapers, one national and regional news paper. Similarly with regard to
sanction of lease or renewal of lease for periods exceeding three years,
intimation had to be given to the State Government by the Board. The
Central Government by way of GSR No.380 (E) dated 03.06.2014
published the Rules called "Wakf Property Lease Rules, 2014", wherein
under Rule 4, Muthawali was empowered to give lease of a property only
for a period of less than one year. However, it could be given only by
inviting applications by publishing notice in the surrounding vicinity and
only a person offering highest lease rent should be inducted into possession.
Dr.GRR,J
Rule-5 would clearly provide for, where the lease period exceeded more
than three years but not 30 years, invitation by way of bids must be called
through Hindi, English and Urdu dailies and one regional or local
newspaper which must specify the description of the wakf property, the
object and purpose of lease, period for which the property was required to
be leased out and minimum reserve price for SFT. However, the said
requirements were not necessary where the rental income was less than
Rs.1,000/- per month. All the said provisions and Rules made in the Wakf
Act originally in the year 1954, subsequently in the year 1995 and thereafter
in the Wakf (Amendment) Act, 2013 would clearly go to show that Central
Government, State Governments and Wakf Board had been vested with the
powers by the Parliament to see to it that Wakf property was not abused and
people were not allowed to squat over the property for extended period of
time, thereby causing serious loss not only to the Wakf property but also to
see to it that the income generated from the Wakf property was put to
proper use for which Wakf was established.
20.1. The contention of the learned counsel for the appellants was
that the present second appeal was a classic case wherein a person who was
given on lease by Muthawali way back in the year 1959 of about 50 sq.
yds., of land on rent to put a tin shed for selling firewood has desecrated the
Dr.GRR,J
graveyard and occupied 250 sq. yds., put up a kirana shop and used the
space for parking of rickshaws and auto rickshaws and misused the property
of Dargah and was creating nuisance every day. Now, the third generation
was in occupation of the premises and was using it by constructing house
and prayed to implement the provisions of the Wakf (Amendment) Act,
2013 to give effect to the intent of the Parliament and to evict the
unauthorized tenants from the premises of the Wakf.
21. Smt. Manjari S. Ganu, learned counsel for the respondents
contended that the suit was filed under the original Wakf Act, 1954 notice
was issued by plaintiff No.1 under Section 106 of TP Act for termination of
lease. The trial court decreed the suit holding that the suit schedule
property was Wakf property and that notice was valid, but the lower
appellate court though confirmed that the suit schedule property was a Wakf
property, held that the notice was not valid and dismissed the suit. The
plaintiffs preferred the second appeal. The original tenant died after filing
the first appeal. His legal heirs were brought on record in the appeal suit. In
the year 2001, the tenancy was renewed by executing a fresh lease deed by
the Wakf Board in favour of defendant No.2, the wife of the original tenant.
After her death, tenancy was executed in favour of defendant No.8
(respondent No.7), daughter of the original tenant in the appeal. An
Dr.GRR,J
application was filed by the respondents/tenants under Order 41 Rule 27 for
receiving additional documents. This Court allowed the said application and
after framing an additional issue remanded the matter to the trial court to
decide the aspect whether any fresh tenancy was executed. The trial court
gave a finding that a fresh tenancy was created in favour of defendant No.8
by plaintiff No.2 and that the suit was liable to be dismissed. In view of
fresh lease executed, the second appeal was liable to be dismissed. The
Wakf (Amendment) Act 2013 had no retrospective effect. There was no
retrospective effect even as per Section 112 of Wakf Act, 1985. The
respondents could not be considered as encroachers as per Section 3(ee) of
the Wakf (Amendment) Act, 2013 due to the expiry of the tenancy. No
notice was issued to the respondents afresh under Section 106 of TP Act
terminating the tenancy. When once fresh lease was executed, the earlier
proceedings would become infructuous. The plaintiffs had to initiate fresh
proceedings for eviction. As the original tenant died and fresh tenancy was
created in favour of defendant No.8 (respondent No.7), the respondents
could not be evicted under the earlier notice. When the notice given earlier
was not valid, the appeal would deserve to be dismissed and relied upon the
judgments of the Hon'ble Apex Court in Om Prakash Gupta v. Ranbir B.
Dr.GRR,J
Goyal2, T. Kaliamurthi and Ors. v. Five Gori Thaikal Wakf and Ors.34
and P.V. Nidhish and Others v. Kerala State Wakf Board and Another.
22. Substantial question of law:
"Whether the occupation of the respondents in the suit
schedule property amounts to unauthorized occupation and
whether they can be considered as encroachers under
Section 3(ee) of the Wakf Act, 1995 as amended by the
Wakf (Amendment) Act, 2013 (27 of 2013)?"
23. Admittedly, the rental deed was executed by the GPA of plaintiff
No.1 in favour of defendant No.1 on 15.04.1959 by which time, the Wakf
Act, 1954 was in force. The suit was filed in the year 1989 and by that time
the Wakf Act, 1995 did not come into force. The ordinary rule of civil law
is that the rights of the parties stand crystallized as on the date of the
institution of the suit. Therefore, the decree in a suit should be in
accordance with the rights of the parties as they stood at the time of
commencement of the lis. The contention of the learned counsel for the
appellants was that the respondents should be considered as encroachers
under Section 3(ee) of the Wakf Act as amended by the Wakf (Amendment)
Act, 2013. The respondents were squatting over the property since a long
period of time even after the expiry of the extended period of lease. The
(2002) 2 SCC 256
AIR 2009SC 840
2023 SCC OnLine SC 519
Dr.GRR,J
tenancy in favour of the respondent No.8 expired after 02.07.2002.
There was no extension or renewal of the same subsequently. As such the
tenancy was deemed to be terminated due to lapse of time and relied upon
the judgment of the Hon'ble Apex Court in M. Vijayalaxmi v. G.
Goverdhan Reddy 5, on the aspect that no notice was required to be issued
under Section 106 of the Transfer of Property act for terminating a fixed
period of tenancy after expiry of that period.
24. The learned counsel for the respondent, on the other hand, relied
upon the judgments of the Hon'ble Apex Court in
T. Kaliamurthi and Ors. v. Five Gori Thaikal Wakf and Ors.6 to
counter the contention of the learned counsel for the appellants that the
amendments of Wakf Act were also intended to apply to pending
proceedings as the appeal is the continuation of the suit and that the High
Court was bound to consider any change in law effecting the question
involved in the appeal. The Hon'ble Apex Court while considering whether
Section 112 of Wakf Act, 1995 was intended to apply to pending
proceedings and whether Section 107 of the Wakf Act was having effect of
reviving a time barred claim, held that:
(1997) 11 SCC 358
AIR 2009 SC 840
Dr.GRR,J
"22. Section 107 lays down that nothing contained in
the Limitation Act, 1963 shall apply to any suit for
possession of immovable property comprised in any Wakf
or for possession of any interest in such property. Thus it
can be said that this section virtually repeals the Limitation
Act, 1963 so far as the Wakf properties are concerned.
Therefore, it can be concluded without any hesitation in
mind that there is now no bar of limitation for recovery of
possession of any immovable property comprised in a
Wakf or any interest therein. In this background, let us
now see whether this section has any retrospective effect.
It is well settled that no statute shall be construed to have a
retrospective operation until its language is such that
would require such conclusion. The exception to this rule
is enactments dealing with procedure. This would mean
that the law of limitation, being a procedural law, is
retrospective in operation in the sense that it will also
apply to proceedings pending at the time of the enactment
as also to proceedings commenced thereafter,
notwithstanding that the cause of action may have arisen
before the new provisions came into force. However, it
must be noted that there is an important exception to this
rule also. Where the right of suit is barred under the law of
limitation in force before the new provision came into
operation and a vested right has accrued to another, the
new provision cannot revive the barred right or take away
the accrued vested right.
24. Let us also see Section 112 of the Wakf Act dealing
with Repeal and Savings. Sub-Section (1) repeals Wakf
Act 1954 and the Wakf Amendment Act 1984. Sub-
Section (2) provides that notwithstanding such repeal,
anything done or any action taken under the said acts shall
be deemed to have been done or taken under the
corresponding provisions of this Act. In the present case,
there is no specific provision which stipulates that Section
107 has any retrospective effect. If we look at Section 112,
it is clear that Sub-Section (2) is the saving clause and
provides validity to the actions taken under the repealed
act. As noted herein earlier, the High Court has proceeded
on the assumption that a reading of Section 112 of the act
leads to the conclusion that the provisions of the act are
intended to apply to pending proceedings also. With regard
to Section 6 of the General Clauses Act, it has observed
that although it is true that under that section, the repeal of
an enactment will not affect any right, privilege, obligation
or liability acquired or incurred under the repealed
Dr.GRR,J
enactment, but this provision cannot be resorted to if a
different intention appears and therefore, Section 6 cannot
be applied to every repealed provision or enactment
regardless of the intention of the legislature and the
language used in the repealing provision, the object of the
repeal and the existence of a savings clause. We agree with
the observations of the High Court with regard to Section
6 of the General Clauses Act, but we are afraid, we are not
inclined to accept the reasoning of the High Court that
Section 112 shows that the Act had a retrospective
effect. Section 112 (2) of the Act is a saving clause and
saves the actions already done or taken under the repealed
enactment. This cannot lead to the conclusion that the Act
has been given a retrospective effect. Rather, if seen
properly, this saving clause in the absence of any specific
provision providing retrospective effect to the Act,
reinforces the suggestion that Act has no retrospective
effect. This is because it saves actions already taken under
the repealed enactment, i.e., it provides that the new
provisions will not affect the validity of the actions already
taken or in other words, it says that there will not be a
retrospective effect. We do not mean to suggest that from a
saving clause, the retrospectivity or no retrospectivity can
be judged but we are of the view that the reliance placed
by the High Court on Section 112, which is a saving
clause, to hold that the act has a retrospective effect is not
proper. In our view, Section 112 is in conformity
with Section 6 of the Act which also provides that a repeal
shall not affect any right, privilege, obligation or liability
acquired or incurred under the repealed enactment unless a
contrary intention appears.
25. There is another aspect of the matter. The learned
counsel for the respondents has contended that an appeal is
only a continuation of the suit and the High Court was
bound to consider any change in law affecting the question
involved in the appeal. It was also argued that Section 107
is retrospective in operation because although there are no
express words in the amended statute that the new
provision will apply to the pending proceedings also, the
legislature clearly intended that even pending proceedings
should be affected by such amendment. We are not
inclined to accept this submission. It is an admitted
position that there is no express provision provided for
retrospective effect and Section 112 clearly saves actions
done under the repealed enactment. Therefore, we are not
inclined to accept the first reasoning given by the High
Dr.GRR,J
Court to hold that Section 107 is retrospective in
operation.
26. Let us now look at the other ground taken by the High
Court to hold that Section 107 has a retrospective effect.
The High Court has held that it is a settled proposition of
law that in procedural matters, there is no vested right and
hence any amendment to the procedural matters would
apply to pending proceedings also. The learned counsel for
the respondent relied in the case of C.Beepathuma & Ors.
vs. Velasari Shankaranarayana Kadambolithaya & Ors.
[AIR 1965 SC 241] in support of his submission that law
of limitation was only a procedural law and the provisions
existing as on the date of the suit should be
applied. Similarly, in Mst.Rafiquennessa vs. Lal Bahadur
Chetri (since deceased) and his LRs. & Ors. [AIR 1964 SC
1511], it was held that where vested rights are affected by
any statutory provision, the said provision should normally
be construed as prospective unless the provisions related to
a procedural matter. In Mohd. Idris & Ors. vs. Sat Narain
& Ors. [AIR 1966 SC 1499], it was held that the law
affecting procedure was also retrospective. Similarly in
Qudratullah Vs. Municipal Board, [1974 (1) SCC 202] it
was held in respect of a provision that even if Section 6 of
the General Clauses Act could be held as applicable, the
provision was only procedural and hence applicable to
pending proceedings. The ratios of the above authorities
undoubtedly lay down the correct position of law."
25. Considering the facts and circumstances of the said case, the
Hon'ble Apex Court observed that for the application of Section 107, on 1st
of January, 1996, the property must be comprised in the Wakf or the Wakf
must have some interest in such properties. If, however, the right to
properties stands extinguished, then Section 107 could not be applied in the
facts of the case on hand as any right which the Wakf had over the
properties stood extinguished under the Limitation Act, 1908.
Dr.GRR,J
26. The Hon'ble Apex Court while also referring to its earlier
judgment in Smt. Dayawathi and another v. Indrajit and others 7,
wherein it was held that:
"Now as a general proposition, it may be admitted that
ordinarily a court of appeal cannot take into account a new
law, brought into existence after the judgment appealed
from has been rendered, because the rights of the litigants
in an appeal are determined under the law in force at the
date of the suit............. Matters of procedure are, however,
different and the law affecting procedure is always
retrospective. But it does not mean that there is an absolute
rule of inviolability of substantive rights. If the new law
speaks in language, which, expressly or by clear
intendment, takes in even pending matters, the court of
trial as well as the court of appeal must have regard to an
intention so expressed, and the court of appeal may give
effect to such a law even after the judgment of the court of
first instance. The distinction between laws affecting
procedure and those affecting vested rights does not matter
when the court is invited by law to take away from a
successful plaintiff, what he has obtained under
judgment",
agreed that it was the correct position of law. Thus, the Hon'ble Apex
Court while interpreting Section 112 of the Wakf Act, 1995 held that the
saving clause in the absence of any specific provision providing
retrospective effect to the Act, reinforces the suggestion that the Act has no
retrospective effect and had not accepted the reasoning given by the High
Court to hold that Section 107 of the Wakf Act, 1995 had retrospective
operation.
(1996) 3 SCR 275
Dr.GRR,J
27. The learned counsel for the respondents further relied upon the
judgment of the Hon'le Apex Court in Omprakash Gupta v. Ranbir B.
Goyal8, wherein it was held that:
"The court has power to take note of and mould the relief
as appropriate only if three conditions are satisfied: (1) a
relief as ordinarily claimed has become inappropriate or
impossible to grant (2) taking note of such events or
changed circumstances would lead to early end of the
litigation and would result in complete justice being done
and (3) subsequent events are brought to notice of the
court promptly and in accordance with rules of procedure
to ensure that opposite party is not taken by surprise."
28. The Hon'ble Apex Court in the above case held that:
"The ordinary rule of civil law is that the rights of the
parties stand crystalised as on the date of the institution of
the suit and, therefore, the decree in a suit should accord
with the rights of the parties as they stood at the
commencement of the lis. However, the Court has power
to take note of subsequent events and mould the relief
accordingly subject to the following conditions being
satisfied : (i) that the relief, as claimed originally has, by
reason of subsequent events, become inappropriate or
cannot be granted; (ii) that taking note of such subsequent
event or changed circumstances would shorten litigation
and enable complete justice being done to the parties; (iii)
that such subsequent event is brought to the notice of the
Court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken by
surprise. In Pasupuleti Venkateswarlu Vs. The Motor &
General Traders - AIR 1975 SC 1409 this Court held that a
fact arising after the lis, coming to the notice of the Court
and having a fundamental impact on the right to relief or
the manner of moulding it and brought diligently to the
notice of the Court cannot be blinked at. The Court may in
such cases bend the rules of procedure if no specific
provision of law or rule of fairplay is violated for it would
(2002) 2 SCC 256
Dr.GRR,J
promote substantial justice provided that there is absence
of other disentitling factors or just circumstances. The
court speaking through Krishna Iyer, J. affirmed the
proposition that court can, so long as the litigation pends,
take note of updated facts to promote substantial justice.
However, the court cautioned: (i) the event should be one
as would stultify or render inept the decretal remedy, (ii)
rules of procedure may be bent if no specific provision or
fairplay is violated and there is no other special
circumstance repelling resort to that course in law or
justice, (iii) such cognizance of subsequent events and
developments should be cautious, and (iv) the rules of
fairness to both sides should be scrupulously obeyed.
12. Such subsequent event may be one purely of law or
founded on facts. In the former case, the Court may take
judicial notice of the event and before acting thereon put
the parties on notice of how the change in law is going to
affect the rights and obligations of the parties and modify
or mould the course of litigation or the relief so as to bring
it in conformity with the law. In the latter case, the party
relying on the subsequent event, which consists of facts
not beyond pale of controversy either as to their existence
or in their impact, is expected to have resort to amendment
of pleadings under Order 6 Rule 17 of the CPC. Such
subsequent event the Court may permit being introduced
into the pleadings by way of amendment as it would be
necessary to do so for the purpose of determining real
questions in controversy between the parties. In
Messrs. Trojan & Co. Vs. RM. N.N. Nagappa Chettiar -
AIR 1953 SC 235 this Court has held that the decision of a
case cannot be based on grounds outside the pleadings of
the parties and it is the case pleaded that has to be found;
without the amendment of the pleadings the Court would
not be entitled to modify or alter the relief. In Sri Mahant
Govind Rao Vs. Sita Ram Kesho & Ors. - (1898) 25
Indian Appeals 195 (PC), their Lordships observed that, as
a rule, relief not founded on the pleadings should not be
granted.
13. Power of the Court to take note of subsequent events,
specially at the appellate stage, came up for the
consideration of a Full Bench of Nagpur High Court
presided over by Justice Sinha (as His Lordship then was)
in Chhote Khan Vs. Mohammad Obedulla Khan, AIR
1953 Nag 361. Hidayatullah, J. (as His Lordship then was)
held, on a review of judicial opinion, that an action must
Dr.GRR,J
be tried in all its stages on the cause of action as it existed
at the commencement of the action. No doubt, Courts 'can'
and sometimes 'must' take notice of subsequent events, but
that is done merely 'inter partes' to shorten litigation but
not to give to a defendant an advantage because a third
party has acquired the right and title of the plaintiff. The
doctrine itself is of an exceptional character only to be
used in very special circumstances. It is all the more
strictly applied in those cases where there is a judgment
under appeal. His Lordship quoted the statement of law
made by Sir Asutosh Mookerjee, J. in a series of cases that
merely because the plaintiff loses his title 'pendente lite' is
no reason for allowing his adversary to win if the
corresponding right has not vested in the adversary but in a
third party. In the case at hand, the defendant-appellant has
simply stated the factum of proceedings initiated by
HUDA against the plaintiff-respondent in an affidavit very
casually filed by him. He has not even made a prayer to
the Court to take notice of such subsequent event and
mould the relief accordingly, or to deny the relief to the
plaintiff-respondent as allowed to him by the judgment
under appeal, much less sought for an amendment of the
pleadings. The subsequent event urged by the defendant-
appellant is basically a factual event and cannot be taken
cognizance of unless brought to the notice of the Court in
accordance with established rules of procedure which if
done would have afforded the plaintiff-respondent an
opportunity of meeting the case now sought to be set up by
the appellant. We do not think this Court would be
justified in taking notice of a fact sought to be projected by
the appellant in a very cavalier manner. The fact remains
that the present one is a landlord-tenant dispute and we
cannot upset the relief granted by the courts below and the
High Court to the plaintiff-respondent by relying on the
doctrine of eviction by title paramount as it cannot be said
that the proceedings initiated by HUDA against the
plaintiff-respondent have achieved a finality or are such
proceedings wherein the plaintiff-respondent cannot
possibly have any sustainable defence."
29. In the present case, there was a subsequent event of entering into
a fresh lease by plaintiff No.2 in favour of respondent No.2 subsequent to
the judgment and decree passed in O.S.No.1416 of 1989 dated 08.02.1995
Dr.GRR,J
and considering the same, this Court had remanded the matter to the trial
court by framing an additional issue and the additional issue was answered
by the learned VI Junior Civil Judge, City Civil Court, Hyderabad holding
that in view of the fresh tenancy created in favour of defendant No.8 by the
plaintiff No.2 during the pendency of the second appeal, the suit was liable
to be dismissed. But, however, as the said lease was also granted only for a
period of 11 months and the tenancy expired after 11 months from
03.08.2001 as per Ex.B13 i.e. by 02.07.2002 and there was no extension of
the tenancy nor renewal of the same by the appellant No.2-Wakf Board
taking into consideration the judgment of the Hon'ble Apex Court in
M.Vijayalakshmi v. G.Goverdhan Reddy (5 supra) relied by the learned
counsel for the appellants, wherein it was held that:
"3. We cannot lose sight of the fact that the tenancy was
for a fixed period of 11 months. It came to an end by
efflux of time on 1-3-1985. No notice for terminating the
tenancy under Section 106 was required for the purpose of
filing the suit after 1-3-1985. The respondent cannot be
treated as a tenant holding over in view of the express
indication given by the appellant by his notice dated 28-1-
1985 that he did not propose to continue the tenancy of the
respondent.
4. The learned counsel for the respondent has urged that
the suit filed by the appellant was based on the alleged
termination of the tenancy by notice dated 28-1-1985 and
since the said notice was invalid the suit must fail. We are
unable to agree. The suit was for recovery of possession of
the premises after termination of the tenancy. Merely
because the appellant had given a notice terminating the
tenancy by notice dated 28-1-1984 (sic 1985) would not
mean that the appellant was not entitled to seek the
Dr.GRR,J
possession of the property after tenancy had come to an
end by efflux of time under Section 111(a) of the Transfer
of Property Act. Therefore, even if it is held that the notice
dated 28-1-1985 was not a valid notice under Section 106
of the Transfer of Property Act it could be regarded as a
notice indicating that the tenancy would not be continued
after the term of the tenancy comes to an end. In these
circumstances it cannot be said that the suit filed by the
appellant was not maintainable and decree for eviction
could not be passed in favour of the appellant."
30. The Hon'ble Apex Court held that no fresh notice for terminating
the tenancy under Section 106 of the T.P. Act was required for the purpose
of filing the suit after 02.07.2002. The present suit is also filed by the
appellants for recovery of possession of the premises. As such, the
appellants are entitled to seek possession of the property after the tenancy
has come to an end by efflux of time under Section 111 (a) of the TP Act
and the decree for eviction could be passed in favour of the appellants.
31. Therefore, this Court answers that the Wakf Act, 1995 or the
Wakf (Amendment) Act, 2013 is not applicable to the present case.
However, the occupation of the respondents in the suit schedule property
after the expiry of the lease amounts to unauthorized occupation and that
they were entitled to be evicted even without the requirement of issuing a
fresh notice under Section 106 of the T.P. Act after termination of the fixed
period of tenancy.
Dr.GRR,J
32. In the result, the Second Appeal is allowed setting aside the
judgment of the III Member, Tribunal for Disciplinary Proceedings cum
VIII Additional Chief Judge, City Civil Court, Hyderabad in A.S. No.62 of
1985 dated 08.02.2000 and the respondents are directed to vacate the suit
premises and hand over the vacant possession of the same to the appellants
within a period of two months from the date of this judgment and they are
also directed to pay arrears of rents and future mense profits @ Rs.1,150/-
per month as per the fresh lease deed entered on 22.6.2001 since the date of
expiry of the lease from 03.07.2002 till recovery of possession within the
above period of two months. No order as to costs.
Miscellaneous Applications pending, if any, shall stand closed.
_____________________
Dr. G.RADHA RANI, J
March 24th, 2025
KTL
