- (1.) THIS revision petition is directed a gainst the order dated 30th July 1987, passed by the learned Munsif and Judicial Magistrate (East), Ajmer.
(2.) PLAINTIFF moved an application for amendment of the plaint. Defendant wanted to add para 19 which reads as under :- "that the plaintiff has instituted this suit on the basis of the judgment and decree in Civil suit No. 2 of 1951, passed by the learned District Judge Ajmer. But the plaintiff is not competent to bring the suit on the basis of aforesaid judgment and decree passed by the learned District Judge, Ajmer, after promulgation of the Waqf Act, 1954. Hence, the suit is not maintainable. " The contention of the defendant is that the suit is not maintainable as the Masjid Committee, plaintiff, is havinng no jurisdiction to file a suit after coming into force the Waqf Act, 1954. In para 1 of the plaint it has been mentioned that the plaintiff Masjid Committee was constituted by the decree of the District Judge, Ajmer, passed in Civil Suit No. 2, 1951, dated, 24. 1. 1953 for Management mosque and other properties attached to it situated in the City of Ajmer. It was further stated that in pursuance of the said decree the property was handed over to the Committee by the custodian of Evacuee Property, Ajmer, on 1st November 1953. The paras No. 1 and 2 of the plaintiff have not been denied specifically by the defendant. It has been mentioned that the defendants are having no knowledge, short question of law is involved in this case. Whether the suit is maintainable in the absence of the Board. The other question involved is whether the Masjid Committee/mutwalli can institute a suit without impleading the Waqf Board as a party. Waqf Act of 1954 has been amended from time to time and it is necessary for the just determination of the dispute to take into consideration the provisions of the Act of 1954 as existed at the time of the institution of the suit. Waqf Act came into force on 15th January 1955, as far as Ajmer is concerned. It is not in dispute that the Board has been constituted by the State under the provisions of the Act of 1954. It is also not in dispute that the property in question is a Waqf property. Mr. Samdaria, learned counsel for the petitioner, has - invited my attention to Section 15 of the Waqf Act of 1954. Section 15 has been amended in the year 1984 by the Amending Act No. 69. Section 15 as it stood at the relevant date, provides that the Board will have the general superintendence of all Waqfs in a State and the Government property shall vest in the Board established by the State. Section 15 further provides that the Board will exercise the powers under the Act of 1954 to ensure that the Waqfs under the superintendence are properly maintained, controlled or administered and the income thereof is duly applied to the object and for the purpose for which the Waqfs were created or intended. Section 15 thus, clearly lays down that the Board will exercise the power of superintendence and ordinarily the Waqf property will be maintained, controlled or administered by the Mutawalli or the Committee or any other authority entrusted with the duty of maintaining, controlling and administering the Waqf property. Power of superintendence and power of maintaining, controlling and administering are independent of each other. In case the authority to whom the work has been entrusted or the Mutawalli to whom the Waqf has been entrusted or the Mutawalli to whom Waqf has been perform the duty, then the Board can issue directions for the administration of the Waqfs or to settle scheme of the management. Board can remove the Mutwalli and appoint a new one in place of the existing one. This goes to show that the institution of the Mutwalli survives even after the creation of the Board, under the Act of 1954. Section 15 further provides that Board can institute and defend the suits and proceedings in a court of law relating to Waqfs. Learned counsel for the non-petitioner submits that it is an enabling provision, but it does not prohibit the Mutwalli to institute a suit. There may be exceptional cases where the Mutwalli in collusion with the defendant may alienate, waste or damage the property and in such cases, it may become necessary for the Board to become a party to the litigation and Board may direct the Mutwalli not to institute or defend the suit and, may, in such circumstances, institute suit directly or defend the suit directly. Learned counsel for the parties agree that under section 25 of the Act application for the registration of the Waqf is made by the Mutwalli. This goes to show that the institution of the Mutwalli services and the Mutwalli has to perform such duties which are necessary for the management and preservation of the Waqf property. Institution of a suit may be necessary for the safety of the property and preservation of the Waqf property. It will not be out of place here to mention that Sec. 36 of the Act relating to the duties of the Mutwalli only enumerate the duties which have been imposed on the Mutwalli under the Act of 1954. However, it does not take away the right, a vested right, which the Mutwalli had prior to the coming into force of the Act of 1954.
(3.) SECTION 55 of the Act of 1954 provides that a suit to obtain any of the reliefs mentioned in SECTION 92 of the Code of Civil Procedure, 1908, relating to any Waqf, may, notwithstanding anything to the contrary contained in that section be instituted by the Board without obtaining consent referred to therein. This SECTION enables the Board to institute a suit relating to matters referred to in Sec. 92 C. P. C. Section 59 of the Act further provides that in any suit or proceedings in respect of a Waqf or any Waqf property by or against a stranger to the Waqf or any other person the (Waqf Commissioner) may appear and plead as a party to the suit or proceedings. Thus, it is not necessary that in every suit the Board should be a party and must be a party. ;