LODHA, J. -
(1.)THIS is a revision application filed by the plaintiffs from an order of the Senior Civil Judge, Ajmer dated 2 9-1967 whereby he had disposed of three applications made by three different parties under Order 1, r. 10, Civil Procedure Code.
(2.)THE facts relevant for the purpose of disposal of this revision application are these: THEre is a Dargah known as Dargah Hazrat Miran Syed Hussain Khingsa-war, popularly known as Dargah Hazrat Miran Sahib, situate at Taragarh, Ajmer. THE plaintiffs are the President, Members and the Secretary of the Committee of Management of this Dargah appointed by the Court of Civil Judge, Ajmer in accordance with the scheme framed in the decree dated 27th October, 1896.
On account of abolition of the Court of Sub-Judge, First Class, Ajmer in the year 1958, the supervision and the management of the Dargah was handed over to the Wakf Commissioner, Jaipur by an order dated 30th June, 1958 of the District Judge, Ajmer. With the coming into force of the Wakf Act, 1954 this Wakf was notified as a Siya Wakf by the Rajasthan Board of Muslim Wakfs, Jaipur by a notification published in the Rajasthan Gazette dated 6-1-1966. Aggrieved of this notification the plaintiffs who represent the Committee of Management of the said Dargah instituted the present suit for declaring that the Rajasthan Board of Muslim Wakfs, Jaipur has no jurisdiction to interfere with the management of the Wakf by the plaintiffs and that the said Wakf is a Sunni Wakf and the notification published in the Rajasthan Gazette dated 6th January, 1966 to the effect that the aforesaid Wakf and its ailed institutions and properties are Siya Wakfs is illegal and void. It was also prayed that a perpetual injunction may be granted against the Wakf Board and its officials restraining them from interfering with the management of the plaintiffs of the Wakf and its properties. The defendant filed a written statement contending inter alia that the Wakf was a Siya Wakf and that the plaintiffs were not entitled to any relief and the suit should be dismissed. On 20-3-1967 five Siya Muslims viz. Sayed Faizzal Abbas, Sayed Annis Abbas, Sayed Ashiq Hussain, Sayed Zahur Hussain and Ali Zamin filed an application under Order 1, r. 10 (2), Civil Procedure Code praying that they are interested in the Wakf in question and may be ordered to be impleaded as defendants in the suit.
On 12-5-1967 certain Khadims of the Dargah and two Sunni Mulsims Mohammad Ahmad and Masood Ali filed two separate applications under O. 1, r. 10 Civil Procedure Code that they are necessary parties to the suit and may be ordered to be impleaded as defendants in the case. These three applications were disposed of by the learned Senior Civil Judge, Ajmer by a common order dated 2-9-1967 by which he dismissed the application of the Khadims and further directed the plaintiffs to bring on record both the Sunni and Siya sects of Ajmer under Order 1, rule 8, Civil Procedure Code by making necessary application and obtaining orders in that direction. It is this order which has been assailed in this revision petition.
It has been contended by Mr. Bhargava learned counsel for the petitioners that the lower court had no jurisdiction to compel the plaintiffs to implead the communities of Sunnis and Siyas of Ajmer by having recourse to Order 1, r. 8, Civil Procedure Code, and consequently has argued that the order being without jurisdiction is liable to be set aside in revision.
For a correct appraisal of the contention raised by the learned counsel for the petitioner it would be necessary to make a reference to certain provisions of the Wakf Act 1954. Sec. 4 of the Wakf Act provides for preliminary survey of Wakfs after issue of a notification in the official gazette by the State Government. Under Sub-sec. (3) the Commissioner appointed by the State Government submits his report to the State Government containing necessary particulars about a given Wakf after making such enquiry as he may consider necessary and for that purpose the Commissioner has been invested with the powers of a Civil Court under the Code of Civil Procedure. Under sec, 5 on receipt of the report from the Commissioner the State Government has to forward a copy of the same to the Board which after examining the same publishes in the official gazette a list of Wakfs existing in the State containing such particulars as may be prescribed. Then comes sec. 6 which is relevant for our purpose and may be reproduced with some advantage: "6. (1) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia Wakf or Sunni Wakf the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final: Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under sub-sec. (2) of sec. 5. (2) Notwithstanding anything contained in sub-sec. (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Commissioner shall not be made a party to any suit under sub-sec. (1) and no suit prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursue ance of this Act or of any rules made thereunder. (4) The list of wakfs published under sub-sec. (2) of sec. 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-sec. (1), be final and conclusive. "
At this stage it may be convenient to refer to Sec. 27 also which runs as follows: - "27. (1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni Wakf or a Shia wakf, it may, after making such inquiry as it may deem fit, decide the question. "
From the provisions quoted above it would be clear that the present suit has been instituted by the plaintiffs under sec. 6 of the Act for a decision of the question whether the Wakf in question is a Shia Wakf or Sunni Wakf. The right of the plaintiffs to bring such a suit is not being challenged. The only question which calls for decision in this revision application is whether the two sects of Muslims residing in Ajmer viz. Shias and Sunnis are necessary parties? Alternatively if they are not necessary parties, are they proper parties?
Mr. Pareekh, learned counsel for the Wakf Board, has submitted that irrespective of the question whether the Shias and Sunnis of Ajmer are necessary parties or proper parties, the lower court had jurisdiction to pass an order directing them to be impleaded as defendants to the suit and its order cannot be said to be one without jurisdiction, and, therefore, this Court should not interfere with the order under revision. Shri R. C. Jain who has put in appearance on behalf of the Shia Muslims who had made an application under Order 1, r. 10, Civil Procedure Code, before the lower court, has contended that any suit filed under sec. 6 of the Wakf Act in which a question is raised whether a Wakf is a Shia Wakf or a Sunni Wakf, all Shias and Sunnis, who are interested in the Wakf properties are necessary parties and therefore the lower court was perfectly justified in directing that the Shias as well as Sunnis of Ajmer should be impleaded as defendants by having recourse to the provisions of Order 1, r. 8, Civil Procedure Code.
Learned counsel for the petitioners has placed strong reliance on Parmananda vs. Commissioner of Hindu Religious Endowments (1) in support of his submission that the order of the lower court is without jurisdiction. In this case their Lordships were pleased to hold that in a suit brought under sec. 64 (2) of the Orissa Hindu Religious Endowments Act the Public need not be impleaded as necessary parties under Order 1, r. 8 Civil Procedure Code. It was observed that the right of instituting a suit conferred by sec. 64 (2) on any person affected by the decision of the Commissioner is a statutory right and there is nothing in that section which makes it incumbent upon the plaintiffs to make the public as party defendants to the suit or to take recourse to the procedure prescribed under O. 1, r. 8, C. P. C. S. 64 of the Orissa Hindu Religious Endowments Act (No. 4 of 1939) states: "64 (1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the commissioner. (2) Any person affected by a decision under sub-sec. (1) within one year, institute a suit in the Court to modify or set aside such decision, but subject to the result of such suit, the order of the commissioner shall be final. "
The provisions of the Wakf Act are somewhat similar to those of Orissa Hindu Endowments Act referred to above. Ratio decendi of this case has no doubt application to the case in hand also. Under the Orissa Act the Commissioner was not required to give public notice or to grant hearing to the members of the public before making an order under sec. 64 (1 ). However, the Commissioner under that Act represented the interest of the public and was the only person who was entitled to take proceeding on behalf of religious and charitable trusts and an individual member of the public had no locus standi in the matter. Further all suits or other legal proceedings by or against the Commissioner under the Act were to be instituted by or against him in his name. In view of these provisions their Lordships were plesed to observe that the High Court of Orissa was in error in holding that in the suit brought by the plaintiffs under sec. 64 (2) of the Act the members of the Public were necessary parties and it was incumbent on the plaintiff to follow the provisions of Order 1, r. 8, Civil Procedure Code and the view of the High Court on this point was over-ruled. The only distinguishing feature pointed out by Mr. R. C. Jain is that in the Wakf Act there is a specific provision contained in sec. 6 (3) to the effect that the Commissioner shall not be made a party to suit under sub-sec. (i) and no suit, prosecution or other legal proceeding shall lie against him. The Commissioner is therefore immune from being sued under the Wakf Act, argues Shri Jain and therefore the observations made by their Lordships of the Supreme Court in the case referred to above cannot be pressed into service in the present case. This submission, in my opinion, is devoid of force. Even though the Commissioner under the Wakf Act has been made immune from being sued, it has been provided that the Board can sue or be sued in respect of such matters. The position assigned to the Commissioner under the Orissa Act, it appears, has been given to the Board under the Wakf Act, and, therefore the immunity of the Commissioner from being sued would make no difference for the purposes of interpreting the other provisions of the Wakf Act. In this view of the matter it would not be necessary to dilate further on this aspect of the case and I am of opinion that the learned Senior Civil Judge was in error in holding that all the members of the Shia and Sunni communities of Ajmer were necessary parties to the suit. However a decision on this point alone does not put an end to the controversy raised by the parties before me and the question still remains whether the lower court had no jurisdiction to direct that certain parties whose presence it considered necessary for complete and final adjudication of the matters in controversy can be said to be without jurisdiction.
At this stage I would like to draw the attention of the provisions of Order 1, r. 10 (2) Civil Procedure Code which runs as follows: "10 (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " Under this provision it is crystal clear that it is open to the Court either upon the application of any party or without such application that a person whose presence before the Court is necessary to effectually and completely adjudicate upon all the questions involved in the suit may be added as a party to the suit. It has not been contended before that this provision has no application to the present case. On the other hand what has been strenuously contended by Mr. Bhargava is that the lower court did not address itself to the essential requirements of Order 1, r. 10 (2) Civil Procedure Code before passing the impugned order. At one place the learned Senior Civil Judge has observed that, "the Sunnis as well as Shias therefore must be deemed to be interested in the decision of such question and as such necessary parties in the suit. At another place the learned Judge has said that, "it is eminently a case where there should be a final adjudication on the question involved not merely in the presence of the plaintiff and the defendant but also in the presence of the representatives of Sunni and Shia sects. " The learned Judge goes on to observe that "in the ends of justice and in the interest of all parties concerned, it is therefore desirable that there should be an adjudication on the nature of the suit waqf once for all for that adjudication, the persons of the Sunni and Shia sects who are interested in the suit and who will be affected by the decision, must be brought before this Court by making them parties?
Mr. Bhargava has contended that there was no prayer in any of these applications for impleading the whole communities of Shias and Sunnis as defendants in the suit but all that the application had prayed was that they may be impleaded as defendant. It was not a case where the Court had passed an order while exercising its powers under Order 1, r. 10 (2) of its own accord without there being an application of either party. He has submitted that his clients were misled and were not able to put the necessary materials on the record to show that it was not a fit case where recourse should be had to the provisions of Order 1, R. 8, Civil Procedure Code for impleading the whole community of Muslims consisting of Shias and Sunnis of Ajmer as parties to the suit in a representative capacity. He has also submitted that there is no finding by the lower court how the presence of these two communities would be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit On the basis of these submissions be has contended that even if the lower court had jurisdiction to pass an order for impleading certain parties, that jurisdiction was not exercised legally and properly.
(3.)I have carefully examined the order under revision and am inclined to think that the lower court was not clear in its mind whether it was a case of necessary party or a proper party and in case it was a case of proper party, whether the lower court was inclined to exercise its jurisdiction under O. 1, r. 10 (2), Civil Procedure Code. Once it is held that the lower court had jurisdiction to direct that the two communities viz. Shias and Sunnis of Ajmer be impleaded as defendants in the case, there would be no difficulty in applying the provisions of Order 1, r. 8, Civil Procedure Code. Mr. Bhargava has frankly conceded that he would have no objection if the lower court is directed to pass a fresh order on the two applications of Shias and Sunnis keeping in view the provisions of O. 1, r. 10 (2), Civil Procedure Code. In view of the conclusion I have arrived to Mr. Pareekh, counsel for the Board, as well as Mr. R. C. Jain has also no objection to this course being adopted.
Accordingly I partially allow this revision, set aside the order of the lower court dated 2-9-1967 so far as the applications filed by the five Shias and two Sunnis are concerned and direct that the lower court may consider the question afresh whether the presence of Shias and Sunnis of Ajmer before the Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit and in case it comes to that conclusion that it is so, it will be open to it to have recourse to the provisions of Order 1, r. 8, Civil Procedure Code, in accordance with law.
In the circumstances of the case I leave the parties to bear their own costs. .