Disposed

P. Abdul Rahim v. Balussry Mahallu Jumyat

Kerala HC28 Nov 2022OP (WAKF)/14/2022

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of an original petition seeking to set aside a cryptic one-line order dismissing an amendment application by the Wakf Tribunal on the ground of the petitioner's absence. The Court permitted the petitioners to move the Tribunal for a review of the impugned order.

What did the court decide?

Liberty granted to petitioners to move the Tribunal with an appropriate application for review of the impugned order.

P. Abdul Rahim Vs Balussry Mahallu Jumyat — Civil Procedure and Limitation | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE S.V.BHATTI

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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MONDAY, THE 28^TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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OP (WAKF) NO. 14 OF 2022

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OS 18/2019 OF WAKF TRIBUNAL, KOZHIKODE IA 501/2019 OF WAKF TRIBUNAL, KOZHIKODE

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PETITIONER/S:

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1 P. ABDUL RAHIM AGED 72 YEARS S/O.MAMMU HAJI, KALLAM KANDY HOUSE, POBALUSSERY, KOZHIKODE, PIN - 673612

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2 BASHEER AHAMMAD AGED 68 YEARS S/O.MAMMU HAJI, AGED 68 YEARS, KALLAM KANDI HOUSE, P.O.THALAYAD, UNNIKULAM, KOZHIKODE, PIN-673 574

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3 ABDUL SAMAD, AGED 58 YEARS S/O.MAMMU HAJI, AGED 58 YEARS, JAMEELA MANZIL, P.O.BALUSSERY, PIN-673 612.

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OP(Wakf) 14/22

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4 JAMEELA, AGED 62 YEARS D/O.MAMMU HAJI, "CHOLA" POOKKUNNU, P.O.GURUVAYOORAPPAN COLLEGE, KOZHIKODE DISTRICT, PIN- 673014. 5 SAFIYA, D/O.MAMMU HAJI, 'VIKAS' A/106, JAWAHAR NAGAR COLONY, P.O.ERINGHIPPALAM, KOZHIKODE DISTRICT. PIN-673006 6 R.P.MUHAMMED SALIH, S/O.MARIYAM, PARAPPUM POYIL HOUSE,P.O.THAMARASSERI, PIN-673 573. 7 R.P.MUHAMMED ASHARAF, S/O.MARIYAM, VALEERIMMAL HOUSE, P.O.UNNIKULAM, KOZHIKODE DISTRICT, PIN-673 574. 8 R.P.MUHAMMED ALI, AGED 61 YEARS S/O.MARIYAM, 'ARPEES BANGALAW' ATHISHELEM, THAMARASSEY, KOZHIKODE DISTRICT, PIN-673 573.

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OP(Wakf) 14/22

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9 R.P.MUHAMMED ABDUL NAZER, AGED 59 YEARS S/O.MARIYAM, RAHMATH PARAMBIL, P.O.MANAGAD, UNNIKULAM, KOZHIKODE DISTRICT, PIN-673574. 10 R.P.JAMEELA, D/O.MARIYAM, P.O.KALPPATTA, WAYANAD DISTRICT, PIN-673122. BY ADVS. K.RAKESH ROSHAN C.VATHSALAN THUSHARA.V

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RESPONDENT/S:

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1 BALUSSRY MAHALLU JUMYAT VATTOLI BAZAR PO, BALUSSERY, KOZHIKODE, PIN – 673612 REPRESNTED BY ITS SECRETARY 2 P.ABOOBAKER, S/O.AHAMED KUTTY, PULLIYANGAL HOUSE, P.O.NANMINDA, BALUSSERY (VIA), KOZHIKODE DISTRICT. PIN-673 613. 3 ABDUL GAFOOR.T.K, S/O.IBRAHIM KUTTY, THOOVATHU KANDY, P.O.VATTOLY BAZAR, VIA- BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612,

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OP(Wakf) 14/22

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4 ABDUL JALEEL.M.K, S/O.C.AHAMMED KUTTY, POOLAKKADATH HOUSE, P.O.VATTOLI BAZAR, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612, 5 JABIR.V.P S/O.ABDURAHIMAN KUTTY, NADUKKANDY HOUSE, P.O.VATTOLI BAZAR, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612, 6 RIYAS.T.K, S/O.POCKER, CHOYATH HOUSE, P.O.VATTOLI BAZAR, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612, 7 SHAKIR.M, MADATHIL HOUSE, S/O.G.K.ABDULLA, P.O.VATTOLI BAZAR, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612, 8 ABDUL JABBAR.T, S/O.AHAMMED KOYA, AALAMKOTT HOUSE, P.O.VATTOLI BAZAR, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 612,

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OP(Wakf) 14/22

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-59 IMBICHI MUHAMMED, S/O.KUNHAMMOTTI, "BISMI",P.O.THURUTHIAD, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 613. 10 NASAR.V,S/O.ATHRUMANKUTTY, VADOORKKANDY, "ABAYAM" P.O.VATTOLI BAZAR, VIA-BALUSSERY, (H.S.A.ARABIC, GOVERNMENT VOCATIONALHIGHER SECONDARY SCHOOL, THAMARASSERY,) KOZHIKODE DISTRICT. PIN-673 612. 11 MAJEED.K.N, S/O.ABDURAHIMAN KUTTY, THOTTATHUMKANDY HOUSE, P.O-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 613. 12 ABDUL NAZAR, S/O.ABDULLA, KUNDOLAMKANDI HOUSE, P.O.NANMINDA, VIA-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 613. 13 IBRAHIM KUNIYANKANDI, S/O.MOIDEENKUNHI, KUNIYANKANDI HOUSE, P.O-BALUSSERY, KOZHIKODE DISTRICT. PIN-673 613.

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OP(Wakf) 14/22

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14	SUBAIR.E.K,
	S/O.N.A.KOYA, "MUSKAN" P.O.THURITHIYAD, VIA-BALUSSERY, KOZHIKODE DISTRICT, PIN-673004.
15	MUHAMMED KOYA V.V S/O.AMMOTTY, "SAAPHALYA" P.O.THURITHIYAD, VIA-BALUSSERY, KOZHIKODE DISTRICT, PIN-673004.
16	SAYED MUHAMMED, AGED 72 YEARS, S/O. MAMMU HAJI, P.B.NO.6, P.O.BALUSSERY, PIN-673 612.
17	THE KERALA STATE WAKF BOARD, REPRESENTED BY IT'S CHAIRMAN. SECRETARY,STATE WAKF BOARD OFFICE ERNAKULAM. PIN-682017,
18	O.T. HAMEED S/O.KUTTIALI, IRIMGADI HOUSE, P.O.NANMINDA, KOZHIKODE DISTRICT, PIN-673 613.
19	C.BASHEER
	S/O.T.K.ABDULLA,
	AGED 57 YEARS,
	PROPRITER SHOLA SKILKS,
	BALUSSERI.P.O,
	KOZHIKODE DISTRICT, PIN-673 613.

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OP(Wakf) 14/22

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-720 KERALA NADVATHUL MUJAHINDHEEN, KERALA STATE COMMITTEE, C.D,TOWER, ARAYADATHU PALAM, CALICUT, KOZHIKODE DISTRICT, REPRESENTED IT'S GENERAL SECRETARY. PIN-673004. 21 SHAFI K., WAKF INSPECTOR, WAKF BOARD, CALICUT, INTERIM MUTHAWALI OF 1ST RESPONDENT COMMITTEE, PIN 673 001. BY ADVS. P.A.ABDUL JABBAR Ghosh Yohannan Jamsheed Hafiz SHAHIM BIN AZIZ(K/557/2016) MUHAMMED SHAFFI(K/1201/2012) EHLAS HALEEMA C.K.(K/001446/2021) THIS OP (WAKF) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(Wakf) 14/22

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S.V.BHATTI & BASANT BALAJI, JJ.

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- - - - -- - - -- - - - - - - - - - -- - - - - - - - - O.P.(Wakf) No.14 of 2022

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JUDGMENT

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(Dated this the 28^th day of November 2022)

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Basant Balaji J.,

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The original petition is filed under Article 226 of the Constitution of India with the following reliefs:

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(i) Set aside Exhibit P5 order dated 24.2.2022 in I.A.No.501/2019 in I.A. No.501/2019 in O.S.No.18/2019, on the files of the Waqf Tribunal, Kozhikode.

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(ii) Allow the petition I A.No.501 of 2019 in 0.S.No.18/2019 pending before the waqf tribunal, Kozhikode as prayed for.

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Petitioners filed O.S.No.87 of 2016 before the Wakf Tribunal for fixation of boundary between the

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OP(Wakf) 14/22

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property owned by the petitioner shown as A schedule and the property given by way of Wakf to the first respondent committee shown as B schedule. On the basis of a survey report and plan, it was found that the shop building on which the respondent Nos.1 and 2 claimed ownership, is outside the wakf property. Since there were some factual mistakes relating to the ownership of the property, the petitioners filed I.A. No.10 of 2019 which was renumbered as I.A.No.501 of 2019 under Order 6 Rule 17 CPC for amending the plaint. Respondents filed a counter opposing the amendment.

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According to the petitioners, the amendment application was heard in detail by the Tribunal on 2 or 3 occasions and consequently posted for orders. Thereafter, the Wakf Tribunal as per order dated 24.2.2022 dismissed the application as follows:

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“Heard. Petitioner is absent. Amendment application is dismissed. No costs.”

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OP(Wakf) 14/22

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The counsel for the petitioners argues that after hearing both sides, the Tribunal was not justified in dismissing the application for the reason that the petitioner was absent on 24.2.2022. The main thrust of the argument is that the reason for rejecting the amendment application is not stated in the order and it is a cryptic one. The Tribunal is not justified in dismissing the application in one line word without adverting to the arguments put forward.

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We have gone through Ext.P3 application for amendment and Ext.P5 order of the Tribunal.

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We note that the order impugned is a one line order which shows that the petitioners were heard. But the reason for dismissal is the absence of the petitioner. The said order is very cryptic. We have asked the learned counsel appearing for the petitioners as to whether they have filed any application to review Ext.P5, to which the counsel replied that he has not done so far and sought indulgence of this court to move the Tribunal with appropriate application to point out the facts and

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OP(Wakf) 14/22

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circumstances which lead to the passing of Ext.P5. Taking note of the facts and circumstances of the case, we are of the considered opinion that liberty can be given to the petitioners to move the Tribunal with appropriate application on the grounds raised in this Original Petition.

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In the result, this Original Petition is disposed of, granting liberty to the petitioners to move the Tribunal, if so advised, with appropriate application for review of Ext.P5 order.

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S.V.BHATTI, JUDGE

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BASANT BALAJI, JUDGE

dl/

OP(Wakf) 14/22

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APPENDIX OF OP (WAKF) 14/2022

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PETITIONER EXHIBITS

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Exhibit P-1	TRUE COPY OF THE PLAINT IN O.S NO. 18/2019 ON THE FILE OF WAKF TRIBUNAL, KOZHIKODE.
Exhibit P-2	TRUE COPY OF THE REPORT AND PLAN GIVEN BY THE TALUK SURVEYOR, TALUK OFFICE, KOYILANDY DATED 11-4-2018.
Exhibit P-3	TRUE COPY OF THE PETITION ALONG WITH AFFIDAVIT IN I.A NO. 10/2019 (RENUMBERED AS I.A NO. 501/2019) IN O.S 87/2016.
Exhibit P-4	TRUE COPY OF REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A 135/2017 DATED 7-1-2020
Exhibit P-4(a)	TRUE COPY OF THE ADDITIONAL REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER IN I.A 269/2020 DATED 6-10- 2021.
Exhibit P-5	TRUE COPY OF THE ORDER DATED 24/2/2022 IN I.A NO. 501/2019 IN O.S NO. 18/2019 OF WAKF TRIBUNAL, KOZHIKODE.

P. Abdul Rahim v. Balussry Mahallu Jumyat

Case brief

What is this about?

What did the court decide?

P. Abdul Rahim v. Balussry Mahallu Jumyat

Case brief

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What did the court decide?

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