High Court Kerala High Court

K.Musthafa vs Abdul Jabbar A.P. on 4 June, 2010

Kerala High Court
K.Musthafa vs Abdul Jabbar A.P. on 4 June, 2010
       

  

  

 
 
  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