A.S.M. ABDUL JABBAR SAHIB AND ANOTHER Vs. MOHAMMAD MURTUZA HUSSAIN AND OTHERS

JUDGEMENT

(1.) The plaintiffs in O.S. No. 86 of 1968 on the file of the Subordinate Judge of Chingleput are the appellants. They filed the suit (a) for removal of the first defendant from the Trusteeship of the Turakken Chatram Trust situate in Red Hills, (b) for settling a scheme for proper administration of the affairs of the Trust, (c) to appoint a Commissioner to manage the Trust (d) to direct the first defendant, who according to them was mismanaging the affairs of the Chatram, to deliver possession of the Wakf properties and hand over charge of the same to the Committee of members to be appointed by the Court and (e) for costs. The plaintiff alleged several acts of mismanagement on the part of the first defendant and ultimately pleads that the first defendant is a person who is liable to be removed from his office as Muthawalli of the Chatram under the provisions of the Wakf Act, 1954. Prior to the institution of the suit the plaintiffs claim that they have filed a petition before the second defendant, Special Officer for Wakfs, Madras for sanction to institute the proceedings against the first defendant. This permission was sought under S.55(2) of the Wakf Act, 1954. The Special Officer, in a very considered order, dismissed the petition. He has very lucidly pointed out by comparing the reliefs asked for by the petitioners with the subjects which could be dealt with by the Wakf Board and finally opined that the petitioners, if they are aggrieved, can approach the Wakf Board or the Special Officer as the case may be instead of moving the Civil Court for obtaining those reliefs.

(2.) We may at once state that what the learned Subordinate Judge meant by all the issues in paragraph 12 of his judgment in issues 1 to 3 which he was answering and not the other issues which had a bearing on the merits of the complaint made by the plaintiffs against the first defendant. The other question is whether the suit is maintainable. It is common ground that when the plaintiffs sought for permission to institute this action, the Special Officer who was then functioning for the Board did not accord permission. We have already excerpted the reasons given by the Special Officer which prompted him to refuse consent. The Special Officer was right in not having accorded such sanction for the reason that the very purpose of S. 55(2) of the Wakf Act would be thwarted if he accords such permission to institute civil actions, for the legislature wanted to avoid such contemporaneous or concurrent litigation in a civil Court and vested the power of disposal of such matters in a statutory body known as the Wakf Board or the Special Officer in the absence of such a Wakf Board. It would be a travesty, if knowing that the reliefs asked for by an aggrieved person could be granted by the Board, the Board sanctions or gives the consent for the institution of a suit for obtaining the very same reliefs in a Civil Court. It is this that has been done by the Special Officer in this case. By refusing to give consent in writing for the institution of the suit, the plaintiffs were prevented from approaching the Civil Court. But, on the other hand, when they were specifically informed that they could have recourse to the special provisions of the Wakf Act for obtaining the reliefs they were seeking for, they persisted and filed the action. The Special Officer has catalogued the various Ss. of the Wakf Act which could give the reliefs asked for by the plaintiff in the civil suit. Under S. 43 of the Wakf Act the Board can remove a Muthawalli. It is this which the petitioners seek in prayer (a) of the plaint. Equally the Wakf Board can certainly settle a scheme under S. 15(2) (d) of the Wakf Act and this is what plaintiffs want in prayer (b) of she suit. The Board can under S. 43(2) of the Wakf Act appoint any person or committee to Act as Mutawalli. It is this very relief which the plaintiffs want in prayer (c) of the plaint. Prayers (d) and (e) in the plaint are ancillary to the main reliefs asked for. If, therefore the Legislature has constituted a special Tribunal for the grant of such reliefs and excludes the jurisdiction of Courts to deal with such reliefs unless otherwise permitted by the Tribunal to do so, then it cannot be said that such a suit laid in the teeth of an order refusing such permission to institute such an action will be maintainable in a Civil Court. The condition precedent, which enables the Court to take on file a suit in which the reliefs which could be granted by the Wakf Board are asked for, is that a consent in writing by the Wakf Board itself should be given. Otherwise, the suit becomes one which is not maintainable in the eye of law and if it is sought to be bypassed by a litigant be in acisin of the matter and grant the relief thereon. The lower court was right therefore in having dismissed the suit as being not maintainable. The appeal therefore fails and is dismissed. There will be no order as to costs in this appeal.