Case Details Mumtaz Yarud Dowla Wakf vs M/s Badam Balakrishna Hotel Pvt. Ltd. & Ors.

945 – Plea of the appellant that the said decision has been explained by this Court in Rashid Wali Beg v. Farid Pindari and Others [2021] 13 SCR 1 and by the amendment brought in under the Act 27 of 2013, the basis of the decision in Ramesh Gobindram has been removed: Held: This Court in Rashid Wali Beg took note of the earlier decision rendered in Ramesh Gobindram and held that after the amendment made by the Act 27 of 2013, the basis of the said decision was correctly removed – It was further held that there are sufficient provisions even otherwise to maintain a suit for eviction over a Wakf property – Wakf Tribunal has got sufficient jurisdiction to try every suit pertaining to either Wakf or a Wakf property, notwithstanding the nature of relief concerned, except as mandated under the statute – High Court while passing the impugned order, unfortunately did not have the benefit of the decision rendered in Rashid Wali Beg – Even otherwise, as per the amendment by way of the Act 27 of 2013, the jurisdiction now lies with the Wakf Tribunal – An adjudicating forum being a product of a procedural right has to come under retrospective operation when an amendment is introduced to cure a defect which paved the way for a decision of the Court in holding otherwise – Protracted proceedings have helped respondents to be in possession for over two decades, notwithstanding the expiry of the lease way back in 1999 – The Act 27 of 2013 is a procedural amendment and therefore, has to be applied retrospectively in the context of change of forum and jurisdictional provisions – The decision in Rashid Wali Beg agreeed with – The amendment has been brought forth in order to get over the interpretation given in Ramesh Gobindram – Impugned order set aside while that of the Executing Court is restored – Waqf Act, 1995 – Practice and Procedure. [Paras 28-30, 32]

Code of Civil Procedure, 1908 – s.47 r/w Or.XXI – Execution proceedings – Question involving jurisdiction – Availability of opportunity to raise said plea at an earlier point of time – Conduct of party significant:

Held: An Executing Court is enjoined with the duty to give effect to the decree – Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception – The onus lies heavily on the judgment-debtor to convince the Court that a decree is inexecutable – The conduct of a party assumes significance – If a party is likely to have an undue advantage, despite the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during the execution proceedings – Further, a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction – One has to see the consequence while taking note of the huge pendency of the cases before various Courts in the country – There is no gainsaying that but for the adverse decree suffered, a judgment-debtor would not have ventured to raise such a plea – It is clearly a case of an afterthought to suit his convenience – He cannot be allowed to approbate and reprobate – Though this Court is conscious about the earlier precedents dealing with the stage at which such a plea can be raised, much water has flown under the bridge in terms of the ground reality – Approbate and Reprobate. [Paras 14, 15]

Practice and Procedure – Jurisdiction – Lack of jurisdiction to a forum vis-à-vis a case where two or more forums deal with the same issue along with the rights and liabilities of the parties: Held: There is a subtle difference when dealing with a case involving coram non-judice – The principle governing lack of jurisdiction to a forum may differ from a case where two or more forums deal with the same issue along with the rights and liabilities of the parties – To make the position clear, one has to see as to whether there is any change in the rights and liabilities of the parties by choosing one forum as against the other – In a case involving same rights and liabilities but the question is only with respect to the forum being judicial or quasi-judicial, the issue of jurisdiction would pale into insignificance when it is sought to be raised as a last straw at a very belated stage – Therefore, when the process becomes the same for both parties who undertake the said route willingly, the question of jurisdiction cannot be put against each other after it has attained finality, unless it is demonstrated that the rights of the party who suffered the decree are obliterated. [Para 16]

Code of Civil Procedure, 1908 – s.9 – Duty of the Court in confirming its own jurisdiction – Discussed – Maxims – “actus curiae neminem gravabit”.

Practice and Procedure – Specialized forum under a statute, exclusion of a civil court:

Held: When a specialized forum is made available under a statute, a civil court should normally entertain a dispute which would otherwise not be amenable before the said forum – Therefore, rights and liabilities of the parties arising from an enactment ought to be adjudicated upon in tune with the mechanism provided thereunder – The provisions of the enactment ought to be given effect to through such forums and therefore to the exclusion of a civil court whose jurisdiction is otherwise to be inferred – As a principle of law, the powers of the civil court, being plenary in nature, the onus lies on the party who contends that it lacks jurisdiction – However, this does not take away the duty of the civil court to check its own jurisdiction, more so when a specialized forum has come into being as a creature of a statute. [Para 26]

LIST OF CITATIONS AND OTHER REFERENCES

Dhulabhai etc. v. State of Madhya Pradesh and Another, [1968] 3 SCR 662 – followed.

Rashid Wali Beg v. Farid Pindari and Others (2022) 4 SCC 414 : [2021] 13 SCR 1; Union of India and Others v. N. Murugesan and Others, (2022) 2 SCC 25; New India Insurance Co. Ltd. v. Smt. Shanti Misra, Adult, (1975) 2 SCC 840 : [1976] 2 SCR 266; Hitendra Vishnu Thakur and Others v. State of Maharashtra and Another (1994) 4 SCC 602 : [1994]

1 Suppl. SCR 360; Neena Aneja and Another v. Jai Prakash Associates Ltd. (2022) 2 SCC 161; Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma (1997) 5 SCC 460 : [1997] 3 SCR 530; Ashok Kapil v. Sana Ullah (1996) 6 SCC 342 : [1996] 6 Suppl. SCR 768; Eureka Forbes Ltd. v. Allahabad Bank, (2010) 6 SCC 193 : [2010] 5 SCR 990; Madras Bar Association v. Union of India and Another (2022)

12 SCC 455 – relied on.

Faseela M. v. Munnerul Islam Madrasa Committee and Another, (2014) 16 SCC 38 : [2014] 4 SCR 613; Ramesh Gobindram (Dead) through LRs. v. Sugra Humayun Mirza Wakf (2010) 8 SCC 726 : [2010] 10 SCR 945; Indore Development Authority v. Manoharlal and Others, (2020) 8 SCC 129 : [2020] 3 SCR 1; M. Hariharasudhan v. R. Karmegam (2019)

10 SCC 94: [2019] 13 SCR 442 – referred to.

General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16 – referred to.

Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co. Ltd., (1911) 12 CLR 398; Zhang v. Zemin (2010) 79 NSWLR 513; Wolverhampton New Waterworks Co. v. Hawkesford [1859] 6 C.B. (NS) 336 – referred to.

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