N.U.Beg, J. - (1.) This is a first appeal from order under Order XLIII, Rule 1 of the Code of Civil Procedure filed on behalf of one Mohammad Abdullah Khan. It appears that the appellant Mohammad Abdullah Khan had executed a Wakf Alal Aulad of his Zamindari properties on the 26th of January, 1945. Under the deed of Waqf, he had constituted himself a Mutawalli for his life-time. After his death he had directed that his first wife would be Mutawalli, and, after the death of the first wife, Shrimati Rabia Begum, his daughter through the first wife was to be the Mutawalli of the said Waqf. On the 1st of July, 1952 Zamindari rights were abolished, and, in respect of some of the Zamindari properties, bhumidhari rights were conferred on Mohammad Abdullah Khan under the provisions of the U.P. Zamindari Abolition and Land Reforms Act. On the 27th of May, 1961 he transferred his bhumidhari rights in some of the properties in favour of his second wife Shrimati Shah Zamani Begum in lieu of her dower debt. Thereafter, Shrimati Rabia Begum made an application to the Sunni Central Board of Waqfs, U.P., Lucknow for the removal of Mohammad Abdullah Khan from Mutawalliship under the U.P. Muslim Waqfs Act (Act No. XVI of 1960), hereinafter called "the Act". On the 17th of January, 1963, the Sunni Central Board of Waqfs, U.P., Lucknow, respondent no. 1 in this appeal, passed an order removing Mohammad Abdullah Khan from Mutwalliship and appointing Shrimati Rabia Begum as Mutawalli in his place. Thereafter, Mohammad Abdullah Khan made an application under Section 55(2) of the Act referring the matter to the tribunal. In this application, Mohammad Abdullah Khan alleged that he had not created any Waqf, that he had been in exclusive possession of the property as its owner and not as a Mutawalli. He stated that he had received a notice from the Sunni Central Board of Waqfs, U.P., Lucknow, asking him to show cause within ten days of the receipt of the notice as to why legal action should not be taken against him for transferring the alleged property, and further as to why Shrimati Rabia Began should not be appointed as the Mutawalli of the said Waqf. He further stated that on the 17th of March, 1962, he had received an order from the Board informing him that Shrimati Rabia Begum had been appointed Mutawalli, and that he should hand over complete charge of the Waqf property to her. He further alleged that the property in question was not Waqf property, and, even if it was held to be Waqf property, the Board had no jurisdiction over the said Waqf property because more than 75 per cent of the total income was allocated for the benefit of the Waqif and his descendants or members of his family. He further made an application praying that till the disposal of his objections a temporary injunction may be issued staying the operation of the order of the Board dated the 17th of March, 1962. The tribunal issued notice in respect of the prayer for temporary injunction and, meanwhile, stayed the operation of the said order. The said notice was served on the Sunni Central Board of Waqfs, U.P., Lucknow, respondent no. 1 Shrimati Rabia Begum respondent no. 2 and Shrimati Shah Zamani Begum respondent No. 3. The application for temporary injunction was strongly opposed on behalf of Shrimati Rabia Begum. After hearing the arguments, the tribunal rejected the prayer for the issue of a temporary injunction on the ground that under the proviso to Section 71 of the Act, the tribunal was incompetent to pass any stay order in respect of any direction given by the Board of proceedings pending before it.
(2.) Dissatisfied with the said order Mohammad Abdullah Khan has filed the present appeal. The sole question arising in this appeal is whether the proviso appended to Section 71 of the Act takes away the jurisdiction of the tribunal to pass any order of stay in respect of any proceedings before the Board or any directions given by it. Section 71 runs as follows:- "Any dispute question or matter which may under this Act be referred to a Tribunal shall be referred to a Tribunal having jurisdiction over the are of in which the property to which such dispute, question or matter relates is situate or if such property is situate in areas under the jurisdiction of more than one Tribunal, then to any of them and the tribunal of competent jurisdiction shall adjudicate upon such dispute question or matter in accordance with the provision of this Act." Provided that no proceedings under this act in respect of any waqf shall be stayed or suspended merely by reason of the pendency of any such dispute, question or matter before a Tribunal."
(3.) Section 72 of the said Act lays down as follows:- "Subject to the provisions of this Act and any rules that may be made in this behalf, a Tribunal shall follow the same procedure as is provided in the Code of Civil Procedure, 1908, in regard to suits." Under Section 72 of the Act, therefore, the provisions of order XXXIX as well as Section 151 of the Code of Civil Procedure will apply to proceedings before the Tribunal. The tribunal will, therefore, have jurisdiction to pass stay orders in respect of the proceedings taken by the Board or orders passed by it, unless there is a provision to the contrary contained in the Act or the Rules framed thereunder. On behalf of the respondents it is argued that the proviso appended to Section 71 quoted above bars the jurisdiction of the tribunal in this respect with the result that the tribunal cannot pass any stay order in respect of any proceedings before the Board. On the basis of the above mentioned proviso, learned counsel for the respondent has argued that the view taken by the tribunal is a correct one. Having considered the matter, I find it difficult to uphold the view taken by the tribunal. It appears to me that all that the proviso lays down is that the mere pendency of a disputed question or matter before a tribunal will not have the effect of staying or suspending any proceedings before the Board. It does not bar the jurisdiction of the tribunal in the matter nor does it lay down that the tribunal shall not be entitled to pass any order of stay in respect of proceedings before the Board. The jurisdiction has been conferred on the tribunal under Section 72 of the Act, and unless a clear provision is shown in the Act or in the Rules framed thereunder ousting its jurisdiction in regard to any matter, the tribunal would be deemed to possess all powers vested in it by virtue of the Code of Civil Procedure. The proviso does not contain any express prohibition in regard to the power of a tribunal to pass orders of stay in respect of any proceedings before the Board or any order passed or direction given by it. The view taken by the tribunal, therefore appears to be incorrect.;