IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 485 of 2010()
1. K.MUSTHAFA, S/O. MAMMED, AGED 38 YEARS,
... Petitioner
Vs
1. ABDUL JABBAR A.P., AGED 57 YEARS,
... Respondent
2. T.P.MUHAMMED @ CHINNAKUTTY HAJI,
3. P.K.FAISAL, AGED 35 YEARS, S/O.
4. ANVAR T.P., AGED 35 YEARS, S/O. LATE
For Petitioner :SRI.B.G.BHASKAR
For Respondent :SRI.V.CHITAMBARESH (SR.)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/06/2010
O R D E R
P. BHAVADASAN, J.
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R.S.A. No. 485 of 2010
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Dated this the 4th day of June, 2010.
JUDGMENT
The plaintiff in O.S. 171 of 2007 before the
Munsiff’s Court, Parappanangadi, who had his suit
dismissed and which was confirmed in appeal is the
appellant.
2. The suit was one for declaration and other
ancillary reliefs. The plaintiff claimed to have been
authorised to institute the suit by the Hussain Medavoor
group of the members of the Chenakkalangadi Sakha of
Kerala Naduvathul Mujahideen. It is claimed that the
Kerala Naduvathul Mujahideen is a society registered
under the Societies Registration Act and it is governed by
its bye-laws. The Society consists of four tiers, namely,
Sakha at the local level, Mandalam, then the District
level committee and finally the State Committee. Going
by the bye-laws, the election is to be held once in every
three years. The dispute arose between the members of
R.S.A.485/2010. 2
Chenakkalangadi Sakha and it split into two factions. One
group was known as Abdul Khader Moulavi Group and the
other Hussain Madavoor group. That led to a suit as
O.S.560 of 2002, which is even now pending. It is claimed
that the affairs of the Sakha fell into disarray due to several
reasons and finally due to the intervention of the Circle
Inspector of Police an interim arrangement was arrived at,
whereby the administration of the Sakha was to be carried
out by the group which obtained majority in the election to
be held in pending final decision in the litigation. The
plaintiff claimed that in pursuance of the said agreement, an
election was conducted on 4.8.2007, in which 19 votes were
cast in favour of Hussain Madavoor group and the other
group secured 17 votes. As per the agreement, Hussain
Madavoor group is entitled to administer and manage the
affairs of the Sakha. However, the defendants, who belong
to the other camp began to obstruct the management of
R.S.A.485/2010. 3
the Sakha and that led to a minor scuffle on 17.7.2007.
Apprehending further trouble from the defendants, the suit
was laid.
3. The defendants entered appearance and
resisted the suit. It was contended that the suit is not
maintainable. The specific contention taken is that the
plaintiff was a member of the local Sakha, since he has not
renewed his membership in the local Sakha. he is
incompetent to file the suit. As he is representing a group,
the suit has to be under Order 1 Rule 8. He cannot bring a
suit against the Society and its members. The Managing
Committee of the Kerala Naduvathul Mujahidheen has a
Mosque and a Madrassa, which constitute wakf properties.
The Committee is to manage those properties. Being Wakf
properties, the suit is barred and the Wakf Tribunal alone
has power to decide the matter. The suit relates to the
internal management of a registered society. The so-called
election having been held contrary to the bye-law is
vitiated. The appellant is trying to somehow grab the
R.S.A.485/2010. 4
management of the unit. It is conceded that there was an
intervention by the police and an interim arrangement was
arrived at. However, according to the defendant, the
election was not held in terms of the bye-law and therefore
cannot be given effect to. There was serious dispute
regarding the manner of voting and the votes secured by
each of the groups in the so-called election. Pointing out
that the plaintiff is not entitled to any relief, they prayed for
a dismissal of the suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.W.1 and no documents were marked on the side of the
plaintiff. The defendants had D.W.1 examined and Exts. B1
to B13 marked. Exts. X1 to X4 series are third party
exhibits. On a consideration of the materials before it, the
court below came to the conclusion that the suit is bad in
several respects and dismissed the same. The matter was
carried in appeal by the plaintiff as A.S. 8 of 2010. The
R.S.A.485/2010. 5
lower appellate court concurred with the finding of the trial
court and confirmed the decree of the trial court. That
brings the plaintiff to this court.
5. Learned counsel appearing for the appellants
contended that the courts below were not justified in
dismissing the suit. None of the grounds relied on to do so
are sustainable either on law or on facts. According to
learned counsel, in fact the real dispute at the final hearing
of the suit was only regarding the postal ballots and the
courts below have not addressed themselves to that
question. Instead, they have considered other materials
which were not relevant for the purpose of deciding the suit.
6. Learned counsel went on to contend that the
finding of the court that Order 1 Rule 8 is attracted is
without any basis. According to learned counsel, even an
individual has a right to assail an act, though several
persons may be benefited by the relief he gets. The suit
need not be in the representative capacity, since the
plaintiff is trying to establish the right which is available to
R.S.A.485/2010. 6
him. In support of his claim, learned counsel relied on the
decision reported in Kalyan Singh v. Smt. Chhoti (AIR
1990 SC 396) and P.K. Nayar v. Raghava Menon (1959
KLT 979). It was contended that the courts below were not
justified in coming to the conclusion that the plaintiff has
not produced the so-called karar entered between the two
groups before the police and also that there is no evidence
to show that the plaintiff is authorised to institute the suit.
According to learned counsel, these facts were not in
dispute and the karar had infact been produced and so also
the authorisation. Therefore, these grounds are also not
available for the trial court to dismiss the suit. It was also
contended that at any rate, the defendants are estopped by
their conduct in denyjng the rights available to Hussain
Madavoor group, who are successful in the election
conducted in pursuance to the agreement. In support of his
contention, learned counsel relied on the decision reported
in B.L. Sreedhar v. K.M. Munireddy (AIR 2003 SC 578).
Learned counsel went on to point out that the doctrine of
R.S.A.485/2010. 7
estoppel is capable of creating a right which can be
enforced. It is to be mentioned here that not satisfied with
the oral argument advanced before this court, learned
counsel for the appellant also preferred argument notes.
7. A caveat had been lodged by the defendants.
Senior Counsel Sri. V. Chitembaresh appeared on behalf of
the respondents.
8. Learned counsel pointed out that the argument
of the learned counsel for the appellant do look attractive,
but on a close scrutiny of the pleadings and evidence it can
be seen that they are without any basis whatsoever.
Learned counsel did not dispute the propositions advanced
by the counsel for the appellant. But according to learned
counsel, they have no application to the facts of the case.
Learned counsel went on to point out that a reading of the
plaint would clearly show that the suit was being lodged by
the plaintiff as authorised by the Hussain Madavoor group of
members and no authorisation was produced or marked in
evidence. The so-called karar was also not marked.
R.S.A.485/2010. 8
Attention was drawn to the fact that the plaintiff did not go
into the box and therefore an adverse inference has to be
drawn against him. Learned counsel then went on to point
out that the Sakha is governed by the bye-law and any
election or any conduct in contravention or violation of the
provisions of the appeal cannot be recognized and given
effect to. Whatever be the conduct of the members, they
cannot justify an action contrary to the provisions of the
bye-laws.
9. There seems to be considerable force in the
argument advanced by the learned Senior Counsel
appearing for the respondents. Copy of the plaint was
made available for perusal.
10. It is true that in the decision reported in
Kalyan Singh’s case it was held as follows:
“Any member of a community may
successfully bring a suit to assert his right in the
community property or for protecting such
property by seeking removal of encroachments
therefrom. Such a suit need not comply with the
R.S.A.485/2010. 9
requirements of O.1, R.8. The suit against alleged
trespass even if it was not a representative suit on
behalf of the community would be a suit of this
category. In this suit ‘K’ and another claimed that
the baghichi was their community property and ‘B’
was a trespasser. They brought the suit to
recover possession from ‘B’. The suit was
decreed. The rival title claimed by ‘B’ by adverse
possession was negatived. So long as that decree
operates, it would be futile to decree the
subsequent declaratory suit filed by the brother of
‘B’.”
In the decision in P.K. Nayar’s case it was held as follows:
“Assuming that such an action can be
brought only in a representative capacity,
Mr.Balakrisha Eradi has not been able to cite any
authority to the effect that a decree passed in
circumstances like the present is illegal. it was
open to the defendant to have raised this
objection at the earlier stage, so that, if the
objection was sound in law, the plaintiff could
have immediately rectified the same. Nor has the
appellant been able to satisfy me that there has
been any prejudice caused to him by the action
R.S.A.485/2010. 10
being allowed to be fought out by the plaintiff
alone. I may also, in this connection, refer to the
decision of Wort, J., reported in Ramghulam v.
Ramkhelawan (AIR 1937 Patna 481). The learned
Judge observes at page 482 as follows:
“Order 1, R.8, C.P.C. as has been pointed
out by a number of decisions, is an enabling section
which entitles one party to represent many who have
a common cause of action; but it does not force one to
represent many if his action is maintainable without
the joinder of the other persons. Therefore, the first
contention of Mr.Balakrishna Eradi is negatived.”
One cannot dispute the proposition that an individual can
assert his rights even though they may enure to the benefit
of several other persons or to a group of persons or to a
particular body as such. But a reading of the plaint shows
that the plaintiff was not agitating the cause in his individual
capacity. The plaintiff has specifically averred that he is
authorised by the Hussain Madavoor group to institute the
suit. The defendants had specifically disputed that he is
competent to institute the suit. It is therefore clear that he
R.S.A.485/2010. 11
was instituting the suit on behalf of a group. He has not
produced the authorisation by which he is entitled to
institute the suit, and going by the averments if he has
instituted the suit on behalf of Hussain Madavoor group,
naturally Order 1 Rule 8 would be attracted. This is what
the courts below have held and there is no reason to
interfere with the said finding.
11. The next issue that arises for consideration is
whether the defendants are estopped by their conduct from
disputing the claims put forward by the plaintiff. It is not in
dispute that the administration and management of the
Sakha are governed by the bye-laws. There is no case for
the plaintiff that the so-called election was carried on in
accordance with the provisions of the bye-law. It is
extremely doubtful if two groups in a Sakha can agree
among themselves to do something in total violation of the
bye-laws accepted by the Sakha and such other bodies. The
mere fact that a compromise was arrived at, does not give
any group any right to do anything in violation of the bye-
R.S.A.485/2010. 12
laws. If a thing is to be done in a particular manner, it has
to be so done and not in any other way. If one is to accept
the proposition that it is possible to vary the provisions of
the bye-laws by conduct and consensus between members
of a Sakha, that would lead to disastrous results. Then each
Sakha or such body can follow its own rules. That cannot
obviously be the position. Sakha as well as such other
bodies had to scrupulously follow the bye-laws unless they
are empowered to do otherwise and there is nothing to
show that Sakhas are entitled to deviate from the bye-laws.
12. The defendants had specifically disputed that
the plaintiff is a member of the Kerala Naduvathul
Mujahidheen. Inspite of this specific contention, there was
no attempt on the part of the plaintiff to show that he is a
member of Kerala Naduvathul Mujahidheen. The
defendants had produced Ext.B11 to show that the list did
not contain the name of the plaintiff.
R.S.A.485/2010. 13
13. Learned counsel appearing for the appellant
pointed out that the defendants have admitted that the
plaintiff has voted in the election held as per the karar and
also that the ballot papers have been produced.
14. The claim of the appellant that he has voted
in the election and the ballot paper itself has been produced
are not sufficient. When there is a specific denial of his
membership, it is for him to establish that he is a member of
the Sakha. It is here that the non-examination of the
plaintiff assumes importance. It is contended that the
plaintiff is a total stranger and he has nothing to do with the
election. Therefore merely because the plaintiff claims to
have voted in the election is not a ground to hold that the
plaintiff is a member when the defendants had specifically
denied the same. There was no attempt on the part of the
plaintiff to establish the claim made by him.
15. The courts below have also considered the
question whether the suit is barred under the Wakf Act. The
courts have come to the conclusion that the Mosque and the
R.S.A.485/2010. 14
Madrassa constitute Wakf properties and therefore fall
within the ambit of Wakf Act. The Mosque and the
Madrassa are properties of which management has to be
carried on by the Sakha Committee.
16. Learned counsel appearing for the appellant
pointed out that the courts below have erred in law in
coming to such a conclusion. Madrassa, by no stretch of
imagination, can be treated as a Wakf property and it is also
pointed out that the society had been in existence long
before the Mosque had come into existence. It could not be
said that the Society falls under the Wakf Act.
17. Learned counsel appearing for the
respondents on the other hand pointed out that a reading of
Exts. B1 and B2 will clearly show that the Mosque and the
Madrassa are Wakf properties. There is no substance in the
contention of the appellant that it is not so.
R.S.A.485/2010. 15
18. It is felt that it is not necessary to decide this
issue because the suit has to fail on other grounds. The fate
of the suit does not depend upon the decision on this issue
and it is only of academic interest in the context of the
present case.
19. Obviously since the plaintiff has not examined
himself, it could not be said that the averments in the plaint
have been established. As already stated the mere fact that
he claims to have voted in the election is not sufficient to
hold that he is a member of the Sakha. May be that the
karar and the authorisation have been produced along with
the plaint. May be also that they form part of the pleadings.
But the pleadings are not evidence. Those documents
ought to have been marked by examining the plaintiff
himself. For reasons best known to the plaintiff he chose to
keep away from the box. As rightly pointed out by the
learned counsel for the respondents, that necessitate an
adverse inference to be drawn against him. One may have
a look at the prayer in the plaint. It reads as follows:
R.S.A.485/2010. 16
“The plaintiff therefore prays for a
declaration that the Hussain Madavoor group in
the Chenakkalangadio Sakha, (now consisting of
19 members) is entitled to manage the affairs of
the Chenakkalangadi Sakha till the final disposal
of the litigation regarding the control and
administration of the society called Kerala
Naduvathul Mujahideen and for a consequential
injunction restraining the defendants and their
supporters from interfering with or obstructing
the administration and management of the affairs
of the Chenakkalangadi Sakha, its institutions and
properties by the Hussain Madavoor Group.
As rightly pointed out by the Senior Counsel for the
respondents the prayer is very vague in as much as the
litigation which is intended has not been specified. A
general statement that the relief may be granted till the
disposal of the litigation is too vague. There may be
litigation after litigation and an omnibus prayer cannot be
granted.
R.S.A.485/2010. 17
20. The result is that none of the allegations in
the plaint have been established. Apart from the said fact,
merely because a karar had been entered into at the behest
of the police does not enable the members of the Sakha to
deviate from the provisions of the bye-law and devise their
own procedure.
21. Learned counsel appearing for the appellant
drew the attention of this court to the decision of this court
in W.P.(C) 35052 of 2007 dated 19.3.2009. The courts
below took the view that since the suit is hit by the
provisions of the Wakf Act, it may not be maintainable. That
was challenged before this court. This court observed as
follows:
“The election was conducted on 4.8.2007 and
it is submitted that the committee took charge.
The decision taken by the Appellate Court on the
basis of the decisions reported in Pookoya Haji v.
Cheriya Koya (2003(3) KLT 32) and Madeena
Masjid v. Kerala Jama Ath Islami Hind (2007(3)
KLT 800) is not correct. The bar under Section 85
of the Wakf Act is confined to the questions to be
R.S.A.485/2010. 18
decided by the Tribunal and with respect to other
matters the jurisdiction of the civil court is not
barred. Section 9 of the C.P.C. states that the civil
court shall have jurisdiction to try all the suits of a
civil nature except the suits of which their
cognizance either expressly or impliedly barred.
The finding of the Appellate Court that the subject
matter of the suit confers jurisdiction on the Wakf
Tribunal and that there is express bar under
Section 85 of the Wakf Act for the civil court to
entertain the suit is illegal and the finding is
against the pleadings and the law.”
It was therefore contended that the ground that the mosque
and Madrassa fall within the ambit of Wakf Act is not
justified.
22. A reading of the above quoted paragraph will
show that this court has finally bring on the issue whether
the Wakf Act will apply or not. That was left to be decided
on the basis of the evidence adduced in the case. This court
only observes that at that stage it may not be possible to
R.S.A.485/2010. 19
say that the suit is barred under the provisions of the Act. It
is already stated that it is unnecessary to go into that
question because the suit has to fail on other grounds.
In the result, this appeal is without merits and it is
dismissed in limine.
P. BHAVADASAN,
JUDGE
sb.
R.S.A.485/2010. 20
P. BHAVADASAN, J.
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R.S.A. No. 485 of 2010
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JUDGMENT
04.06.2010