Judgment:
(Prayer: This RFA is filed under Section 96 R/w Section 104 of CPC, against the Judgment and decree dated 3.10.2009 passed in O.S.No. 15908/2001 on the file of the IV Addl. City Civil and Sessions Judge, (CCH 21), Bangalore, decreeing the suit for possession and damages.)
1. Challenging the legality and the correctness of the Judgment and decree passed in O.S.No.15908/2001 dated 3rd October, 2009 by the IV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore is called in question in this appeal.
2. Heard the learned counsel appearing for the patties. The facts leading to this appeal are as hereunder:-
The appellant was the defendant before the trial court. The respondent was the plaintiff.
The plaintiff filed a suit for recovery of possession of the plaint schedule property and also for recovery of Rs.25,200/- towards the arrears of rent and amenities and Rs.25,000/- per month for wrongful use and occupation of the said property from the date of suit till the date of delivery of possession. According to the plaint averments the plaintiff is a Wakf. The suit property belongs to the plaintiff. The defendant is a tenant under the plaintiff in respect of 'B' schedule property on a monthly rent of Rs.8,000/- towards rent and Rs.6,000/- per month towards amenities. The lease deed came to be executed by the defendant in favour of the plaintiff on 15-12-1995 and that since September and October, 1999 the rents have not been paid. The defendants sent a cheque of Rs.14,0000/- only and still he is liable to pay Rs.25,200/- to him. Contending that the tenancy of the defendant has been terminated by issuing a legal notice dated 21-10-1999 terminating the tenancy with effect from 30th November, 1999, the defendant was called upon to handover possession of the property. Since the defendant failed to comply a suit came to be filed for recovery of possession and damages.
The defendant filed the written statement denying the rent payable by him and also that he is not liable to pay damages at the rate of Rs.25,000/- per month. According to the defendant the suit is not properly represented and that the person instituting the suit has no locus standi to maintain the plaint. The plaintiff Wakf is not a registered Wakf and therefore the suit for eviction is not maintainable. According to the defendant all the disputes pertaining to the Wakf property has to be resolved before the Wakf Tribunal and hence requested the Court to dismiss the suit.
3. Based on the above pleadings the following issues were framed by the Court.
"1. Whether the person who has presented the plaint has no locus standi to represent the plaintiff and is incompetent to sign and verify the plaint?
2. Whether the plaintiff proves that the schedule D property was let out to the deft under the lease deed dated 24.7.96 for a period of three years and thereafter the lease deed agreement of hire was amended by the supplementary agreement dated 1.12.98 as alleged?
3. Whether the plaintiff proves that it has validly terminated the tenancy of the deft over the schedule premises?
4. Whether the plaintiff proves that the deft is in arrears of rents of Rs.25,200/- as alleged?
5. Whether the plaintiff is entitled for the compensation/damages at the rate of Rs.25,000/- p.m. as alleged?
6. Whether this court has no jurisdiction to entertain and try the suit as contended in para No.4 of the written statement?
7. Whether the suit is barred under the provisions of Karnataka Rent Act?
8. To what reliefs the parties are entitled to?"
To prove their respective contentions one Afzal Pasha was examined as P.W.I. He relied upon Exs.P-1 to P-ll. The defendant got himself examined as D.W.I and no documents were produced by him in his evidence. The trial court after appreciating the evidence of all the parties held Issues 1,4, in negative. Issue No.2 was deleted on 25-11-2008 and Issue No.3 was held in affirmative and with regard to Issue No.5 the Court held that the plaintiff is entitled to for the mesne profits/damages at the rate of Rs.16,100/- per month. Issue Nos. 6 and 7 were held in negative vide order dated 14-7-2008. Consequently, the suit of the plaintiff came to be decreed. The defendant was directed to handover possession within 3 months from the date of the order. The trial court also held that the plaintiff is also entitled to rent at the rate of Rs. 16,100/- per month from the date of the suit till the date of handing over the possession of the property.
4. The Judgment and decree of the trial Court is called in question in this appeal.
5. The learned counsel for the appellant Sri B.C.Seetharsma Rao, submits that the trial court has committee an- error in holding that the suit filed by the plaintiff was maintainable. According to him, the plaintiff is not the registered Wakf registered under the provisions of the Wakf Act, 1995. When it is not registered under the Wakf Act, the suit could not have been filed by the plaintiff. According to him, such a dispute has to be resolved only by means of a suit to be filed before the Wakf Tribunal. He submits that the person who signed the plaint had no locus-standi to maintain the suit on behalf of the plaintiff-Wakf. He further submits that the awarding of damages is also bad in law.
6. Per contra, the learned counsel appearing for the respondent submits that the defendant being a tenant of the plaintiff cannot question the nature of Wakf. According to him, being a tenant having agreed to pay the appellant was paying the rents from the date of the lease deed. He cannot contend that the plaintiff is not registered under the provisions of the Wakf Board, According to him, whether the plaintiff is a registered Wakf under the provisions of che Wakf Act or not is not the concern of the defendant because he is only a tenant under the plaintiff. He further submits that a tenant cannot dispute the question of titie of the landlord. He further submits that Section 87 of the Wakf Act has been deleted. Therefore the suit filed by the plaintiff for recovery of possession is maintainable since the Karnataka Rent Control Act, 1961 has no application to the premises of the Wakf. He further submits that the parties are entitled to go before the Wakf Tribunal only in case of disputes concerning the Wakf and not in regard to the prayer to evict a tenant of the Wakf property. In the circumstances he requests the Court to dismiss the appeal.
7. Having heard the learned counsel for the parties we have to consider the following points in this appeal:-
1) Whether the suit Filed by the plaintiff before the thai court was maintainable?
2) Whether the Judgment and decree of the trial court requires to be interfered with ?
8. We have considered the pleadings and the evidence, Ex.P-5 is the lease deed executed by the defendant in favour of the plaintiff on 15th December, 1995, wherein the defendant has admitted the nature of the Wakf. Ex.P-6 is another document executed on a stamp deed agreeing to pay the hire charges separately in respect of amenities provided by the defendant. The defendant is not disputing Exs.P-5 and 6. In other words, he admits that he is a tenant under the plaintiff Bayan Bai Wakf, Bangalore. He also does not dispute the rent paid by him prior to the institution of the suit. Therefore, the question is whether the suit filed by the plaintiff was maintainable for eviction of the tenant.
8. (a) It is an undisputed that the plaintiff is a Wakf- Alal-Aulad. The contention of the defendant is that since the plaintiff is a Wakf in terms of Section 4 of the Wakf Act, any dispute concerning the Wakf should be decided by the Tribunal as constituted under the Wakf Act, 1995.
9. It is further contended by the appellant- defendant that in terms of 87 of the Wakf Act, 1995 no suit could be instituted by the plaintiff.
Therefore it is contended that no proceedings can be initiated by the plaintiff. The learned counsel for the appellant further contends by relying on the provisions of Section 83 of the Act submits that even to evict the tenant the Wakf Board has to go before the Wakf Tribunal.
10. However, the learned counsel appearing for the respondent-plaintiff placed reliance on the copy of the Gazette Notification dated 23-9-2013 which brought about the amendments to tne Wakf Act, 1995 as Wakf (Amendment) Act, 2013 numbered as 27/2013. The Notification was published in the Gazette on 23-9-2013. In terms whereof various amendments were brought about. Section 87 of the Act was omitted. Therefore he contends that the contentions of the appellant holds no water.
11. The issues raised by the appellant are no more res integra. The Hon'ble Supreme Court considered the very issues raised herein in the Judgment in the case of RAMESH GOBINDRAM(DEAD)THROUGH LRs. Vs. SUGRA HUMAYUN MIRZA WAKF reported in (2010) 8 SCC 726.
The Hon'ble Supreme Court of India on considering the provisions of the Wakf Act, 1995 with reference to Sections 6, 7, 33, 35, 47, 48, 51, 54, 61, 64, 67, 72, 73, 83 and 85 of the Wakf Act and also with regard to the jurisdiction of the Wakf Tribunal vis-a-vis the Civil Court, it held therein that Section 6 read with Section 7 of the Wakf Act bars the jurisdiction of the Civil Court oniy to the extent of trial of suits regarding questions specifically enumerated therein. All disputes pertaining to eviction of tenants are maintainable only before the Civil Court. The Hon'ble Supreme Court also considered the views expressed by various High Courts on the said issues. In taking into consideration all those decisions, the Hon'ble Supreme Court held at paras 33 to 36 as follows:-
"33. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the civil courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the civil court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal.
34. The crucial question that, shall have to be answered in every case vshere a plea regarding exclusion of the jurisdiction of the civil court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a civil court. If it is not the jurisdiction of the civil court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the civil court would stand excluded.
35. In the cases at hand, the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction cf the tenants from what is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal.
36. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed."
The said Judgment is also quoted with approval in the later Judgment of the Hon'ble Supreme Court in the case of BHANWAR LAL AND ANOTHER v. RAJASTHAN BOARD OF MUSLIM WAKF AND OTHERS reported in 2013 AIR SCW 5210. Therefore, the contention of the appellant having been considered in the aforesaid Judgment, any suit seeking eviction of the tenants from the Wakf property has to be filed only before the Civil Court and not before the tribunal. Therefore Issue EMo.l is answered in the affirmative.
12. On considering the impugned order on merits we do not see any good ground to interfere. The reasoning assigned by the tnal Court is just and proper. The same are based on the facts and circumstances of the case. Hence we hold that the judgment of the Trial Court does not cal! for any interference. Consequently the appeal requires to be dismissed.
The amount-in deposit is ordered to be paid to the respondent.
There is no submission or even a request made by the appellants with regard to the time for handing over possession. However, in the interest of justice we have considered the same. In the background of the fact that the suit was filed in the year 2001 and 13 years are spent and in view of the fact that the trial Court granted 3 months time to hand over possession, we deem it just and appropriate to grant a period of 3 months from the date of receipt of copy of this order to hand over possession.