Alternative Remedy argument in Appeal

if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner and following any other course is not permissible

The age old principle enshrined in the Latin maxim expressio unius est exclusio alterius i.e. if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner and following any other course is not permissible, is squarely attracted. The principle was recently reiterated by the Supreme Court in Selvi J. Jayalalithaa v. State of Karnataka (2014) 2 SCC 401 and in Mackinon Mackenzie and Company Ltd. v. Mackinnon Employees Union (2015) 4 SCC 544. In the latter, it was further held that if the procedure prescribed is not followed, then such act of the authority has to be held to be null and void ab initio in law. The principle was yet again reiterated in Zuari Cement Ltd. v. Regional Director E.S.I.C. Hyderabad (2015) 7 SCC 690.

Person interested in Wakf Waqf

 

1.      WHO IS PERSON INTERESTED IN WAKF?

 

Section 3(k) of the Waqf Act, 1995 defines the term "person interested in wakf". It means any person who is entitled to receive any pecuniary or other benefits from the [waqf][1] and includes –

 

(i) any person who has a right to [offer prayer][2] or to perform any religious rite in a mosque, idgah, imambara, dargah, [khanqah, peerkhana and karbala][3], maqbara, graveyard or any other religious institution connected with the [waqf][4] or to participate in any religious or charitable institution under the [waqf][5];

 

(ii) the [waqif][6] and any descendant of the [waqif] and the mutawalli

 

Section 83 (2) of the Waqf Act, 1995 says that: "Any mutawalli, person interested in a waqf or any person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the tribunal for determination of any dispute, question or other matter relating to the waqf."

 

Section 70 of The Waqf Act, 1995 says that: "Any person interested in a waqf may make an application to the board supported by an affidavit to institute an enquiry relating to the administration of the waqf and if the board is satisfied that there are reasonable grounds for believing that the affairs of the waqf are being mismanaged, it can take such action thereon as it thinks fit"

 

CONCLUSION- After studying section 3(k), 83(2) & section 70 of the Waqf Act, 1995 a person who has right to offer namaz at Masjid is an Interested person to it and being an interested person he can be party to any dispute relating to the mosque as well as can institute an enquiry relating to the administration of waqf.

 

 

 

 

 

 

 

CASE LAWS

 

S.no.	Name of case	Relevant paragraph
1.	Sirajul Haq Khan v. Sunni Central Board of Wakf, AIR 1959 SC 198   JUSTICE T. L. VENKATARAMA AYYAR, JUSTICE P.B. GAJENDRAGADKAR & JUSTICE A.K. SARKAR	16. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf" (Para 16) The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is this class of persons who are obviously intended to be covered by the words "any person interested in a waqf"
2.	Waqf Masjid through Sec. Mohd Ismail v. Waqf Tribunal U.P.   Neutral Citation No. - 2023:AHC-LKO:23390   JUSTICE MANISH MATHUR	10. Evidently a person interested in a waqf is any person who is entitled to receive any pecuniary or other benefits from the waqf. The provision is inclusive of any person who has a right to offer prayer or perform any religious rite in a religious place as defined thereunder. 11. Once it is admitted that petitioner even without holding the post of Mutawalli or Secretary of the managing committee of the waqf has a right to offer prayers or to perform any religious rite in the religious institution of the waqf, the revisionist would come within definition of a person interested in the waqf as defined under Section 3(k) of the Act, 1995. 18. It is therefore evident that despite the fact that revisionist was removed from his post as Mutawalli/Secretary of the managing committee of waqf, the application filed by him under Section 83(2) of the Act, 1995 in his individual capacity was clearly maintainable not only as a person interested in a waqf but also as a person aggrieved by order dated 16th February, 2022 passed in terms of Section 32 of the Act. 19. A perusal of the impugned order reveals the fact that revisionist's application under Section 83(2) of the Act of 1995 has been dismissed as infructuous only on the ground that he has been removed from the post of Mutawalli/Secretary of the managing committee of waqf. The Tribunal has clearly not adverted to other provisions of Section 83(2) of the Act of 1995 pertaining to whether the suit was maintainable in individual capacity of revisionist either as a person aggrieved or as a person interested in the waqf.
3.	Sk. Safik And Others v. The Board Of Wakfs C.O. No.200 of 2021   JUSTICE SABYASACHI BHATTACHARYYA	83. The plaintiffs, being persons interested and worshippers of God in the Mosque, certainly fall within the category of 'beneficiaries', it is submitted. Moreover, the Tribunal, by partially decreeing the suit in favour of the plaintiffs, obviously gave a go-bye to the maintainability point for want of notice under Order I Rule 8 of the Code. Such factors render them 'interested persons' within the contemplation of Section 70 of the 1995 Act and conferring locus standi on the revisionist petitioners to prefer the instant application under Article 227 of the Constitution of India.
4.	Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780	34. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete. Unfortunately the courts which decided the previous litigation between the parties do not appear to be aware of the considerations mentioned above. 49. It is further contended that under the agreement, the plaintiffs clearly stipulated not to claim any right or interest in the mosque and, therefore, they cannot now be heard to say that the mosque was a wakf property. This argument appears to have found favour with the trial court. But in our opinion it is based on a serious misconception of the Mahomedan Law on the subject. Once there was a complete dedication of the mosque as a place of public worship any reservation or condition imposed by the owner would be deemed to be void and would have to be ignored. Moreover we do not construe the so-called stipulation by the plaintiffs' ancestors at the time of erecting the prayer hall as an assertion that the mosque was not a public wakf. Reading the statements made in the agreement as a whole what the plaintiffs' ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would not interfere with the management of the same. This does not mean that if the founder's descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan community could not take suitable action under the law against the defendants. This argument is, therefore, negatived.

Conclusion- These case laws affirm the position of a musalli(person who prays in the mosque) with regard to the affairs of masjid.

 

2.     IS MUTAWALLI THE OWNER OF MASJID/ WAKF PROPERTY?

 

Section 3(k) of the Waqf Act, 1995 defines the term "Mutawalli":

 

"mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any waqf or 1 waqf property:

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation: Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed: Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;

 

 

CASE LAWS

S. no.	Name of Case	Relevant paragraph
1.	Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362   JUSTICE R.S. SARKARIA, JUSTICE N.L. UNTWALIA, JUSTICE P.S. KAILASAM	16. A Mutawalli is like a Manager rather than a trustee (see p. 498). The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct
2.	Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi, (2019) 9 SCC 522   Justice N. V. RAMANNA, Justice M. M. SHANTANAGOUDAR, and Justice AJAY RASTOGI	15. Under Mohammedan Law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights in it. This role envisaged for a mutawalli finds clear exposition in Ahmed G.H. Ariff v. CWT [Ahmed G.H. Ariff v. CWT, (1969) 2 SCC 471] , where a three-Judge Bench of this Court observed as follows: (SCC p. 476, para 6)   "6. … the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty. Therefore, the Mutawalli has no right in the property belonging to the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so."
3.	Faqir Mohd. Shah v. Qazi Fasihuddin Ansari AIR 1956 SC 713   JUSTICE VIVIAN BOSE, JUSTICE SYED JAFAR IMAM & JUSTICE CHANDRASHEKHARA IYER	66. Now it is evident that the space on which the pushtas and the minarets stood was part of the mosque property. The defendant has therefore built on a part of the mosque estate and as he has not demarcated those portions from the rest we are bound to treat them as accretions to the mosque estate.' It is true that a stranger to the trust could have encroached on the trust estate and would in course of time have acquired a title by adverse possession. But a Mutwalli cannot take up such a position. Both Gulab Shah and the defendant have described themselves as Mutwallis of the mosque, therefore, if they choose to build on part of the mosque property in such a way as to integrate the whole into one unit (that is to say, the parts of each room that stand on the mosque property and the remainder that does not so as to form one composite room) then we are bound to regard this as an accretion to the estate of which they were trustees; and they will be estopped from adopting any other attitude because no trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.   A person in a fiduciary relationship or one, in whom the property was vested in trust, could not claim title by adverse possession over trust property. A Mutawalli, accordingly, on the said principle, could not claim title by adverse possession over waqf property.
4.	Faqruddin v. Tajuddin, (2008) 8 SCC 12   JUSTICE S.B. SINHA & JUSTICE L.S. PANTA	36. It is beyond any doubt or dispute that a mutawalli is the temporal head. He is the manager of the property.

 

 

 

 

 

---

[1] Substituted for "wakf" by Act 27 of 2013

[2] Substituted for "worship", ibid.

[3] Substituted for "khanzah", ibid.

[4] Substituted for "wakf", ibid.

[5] Substituted for "wakf", ibid.

[6] Substituted for "wakif", ibid.

Only an order convicting or imposing punishment is subject to challenge under section 19 of the contempt of court act

If the High Court for whatever reasons decides to issue or makes any direction relating to the merits of the dispute between the parties in a contempt proceeding, the agree person is not without remedy and can file an appeal against the said order if there was a provision for intra Court appeal or can appeal to the Supreme Court in other cases. 

An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of jurisdiction to punish for contempt that is an order imposing punishment for contempt  

Midnapore, People's cooperative Bank Limited v. Chunni Lal Nanda 2006 5 SCC 299

Ajay Kumar Bhalla versus Prakash Kumar Dixit civil appeal number 8129 of 2024 Decided by

DYC 

Even if written statement is not filed or not taken on record, but it will not preclude the defendant from participating in the proceedings

position is that even if the defendant opposite party failed to file a written statement and in that matter, even if for feature of the right to file written statement has occasion, it would not be entitled that party from participating in further proceedings without filing a written statement, and the said party would also be having the right to cross examine. 

Para 15. 2024 9  SCALE 1

Kaushik Narsing Bhai Patel versus SGR prime Corporation

Natural Justice does not necessarily mean oral hearing

Union Of India & Anr vs M/S. Jesus Sales Corporation on 26 March, 1996

https://indiankanoon.org/doc/961662/

According to us, the Appellate authority passed a reasonable order which should not have been held to be invalid by the High Court merely on the ' ground that before passing the said order the respondent was not given oral hearing, which amounted to violation of the principles of natural justice. 

Equivalent citations: 1996 AIR 1509, 1996 SCC (4) 69, AIR 1996 SUPREME COURT 1509, 1996 (4) SCC 69, 1996 AIR SCW 1575, (1996) 3 JT 597 (SC), 1996 (3) JT 597, 1996 (2) UJ (SC) 409, (1996) 3 SCR 894 (SC), (1996) 55 ECC 51, (1996) 83 ELT 486, (1996) 64 ECR 169, (1996) 63 DLT 398

Plaint to be read as a whole

Proposition: 'Plaint to be read as a whole'

 

'PLAINT TO BE READ AS A WHOLE'
S.No	Case	Relevant Paragraph
1.	Corporation Of The City Of Bangalore vs M. Papaiah And Anr. on 1 August, 1989   1989 (3) SCC 612	3. ...... It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation........
2.	ELDECO HOUSING AND INDUSTRIES LIMITED …    VERSUS   ASHOK VIDYARTHI AND OTHERS   2023 INSC 1043	23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V.Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941].
'PLAINT TO BE REJECTED AS A WHOLE, NOT IN PARTS'
1.	KUM. GEETHA, D/O LATE KRISHNA & ORS. VERSUS NANJUNDASWAMY & ORS   CIVIL APPEAL No. 7413 of 2023 (Arising out of S.L.P. (C) No. 8147 of 2016)	7. In simple terms, the true test is first to read the plaint meaningfully and as a whole, taking it to be true. Upon such reading, if the plaint discloses a cause of action, then the application under Order VII Rule 11 of the CPC must fail. To put it negatively, where it does not disclose a cause of action, the plaint shall be rejected
2.	Dahiben v. Arvindbhai Kalyanji Bhanusali   (2020) 7 SCC 366	23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, 5 would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."   23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman [D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941]
3.	Madhav Prasad Aggarwal v. Axis Bank Ltd   (2019) 7 SCC 158	10. We do not deem it necessary to elaborate on all other arguments as we are inclined to accept the objection of the appellant(s) that the relief of rejection of plaint in exercise of powers under Order 7 Rule 11(d) CPC cannot be pursued only in respect of one of the defendant(s). In other words, the plaint has to be rejected as a whole or not at all, in exercise of power under Order 7 Rule 11(d) CPC.