1 in the High Court of Karnataka at Bengaluru

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16 TH DAY OF JANUARY 2019

BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE

CIVIL REVISION PETITION NO.48/2018 c/w CIVIL REVISION PETITION NOS.49/2018 & 353/2018

CRP NO.48/2018

BETWEEN:

SMT PERIAMMA @ DARGA PEERANAMMA SINCE DEAD BY HER LRS

NOORUNNISA D/O PERIAMMA @ DARGA PEERANMMA AGED ABOUT 35 YEARS R/AT JANATHA COLONY DOMMASANDRA VILLAGE SHARJAPURA HOBLI ANEKAL TALUK BANGALORE DISTRICT. … PETITIONER (By Mr. ARVIND SHARMA, ADV.)

AND:

1. THE KARNATAKA STATE BOARD OF WAKFS NO.06, CUNNINGHAM ROAD BANGALORE - 560 052 REPRESENTED BY ITS CHAIRMAN.

2. THE ADMINISTRATOR DIST WAKF COMMITTEE BANGALORE URBAN DISTRICT BANGALORE-560052.

3. HAZARAT BABASHAHA WALI DARGAH REP BY ITS PRESIDENT, ABBAS KHAN 2

S/O SULEMAN KHAN AGED ABOUT 70 YEARS OCC PRESIDENT OF WAKF INSTITUTION R/O DOMMASANDRA VILLAGE SARJAPURA HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562125. … RESPONDENTS (By Mr. MOHAMMED TIPPU SULTAN, ADV., FOR C/R1 Mr. P.S. MALIPATIL, ADV., FOR C/R3)

THIS CRP IS FILED UNDER SEC.83(9) OF THE WAKF TRIBUNAL ACT., AGAINST THE ORDER DATED: 06.01.2018 PASSED ON IA.NO.35 IN OS.NO.11/2003 ON THE FILE OF THE KARNATAKA WAQK TRIBUNAL BENGALURU, BENGALURU, DISMISSING THE IA.NO.35 FILED UNDER ORDER VI RULE 17 R/W SEC.151 OF CPC., SEEKING AMENDMENT OF PLAINT.

CRP NO.49/2018

BETWEEN:

SMT. PERIAMMA @ DARGA PEERANAMMA SINCE DEAD BY HER LRS

NOORUNNISA D/O PERIAMMA @ DARGA PEERANMMA AGED ABOUT 35 YEARS R/AT JANATHA COLONY DOMMASANDRA VILLAGE SHARJAPURA HOBLI ANEKAL TALUK BANGALORE DISTRICT. … PETITIONER (By Mr. ARVIND SHARMA, ADV.)

AND:

1. THE KARNATAKA STATE BOARD OF WAKFS NO.06, CUNNINGHAM ROAD BANGALORE - 560 052 REPRESENTED BY ITS CHAIRMAN.

2. THE ADMINISTRATOR DIST WAKF COMMITTEE 3

BANGALORE URBAN DISTRICT BANGALORE-560052.

3. HAZARAT BABASHAHA WALI DARGAH REP BY ITS PRESIDENT, ABBAS KHAN S/O SULEMAN KHAN AGED ABOUT 70 YEARS OCC PRESIDENT OF WAKF INSTITUTION R/O DOMMASANDRA VILLAGE SARJAPURA HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562125. … RESPONDENTS (By Mr. MOHAMMED TIPPU SULTAN, ADV., FOR C/R1 Mr. P.S. MALIPATIL, ADV., FOR C/R3 ADV.) - - - THIS CRP IS FILED UNDER DSEC.83(9) OF THE WAKF TRIBUNAL ACT., AGAINST THE ORDER DATED: 21.11.2017 PASSED ON IA.NO.33 IN OS.NO.11/2003 ON THE FILE OF THE PRESIDING OFFICER KARNATAKA WAQK TRIBUNAL BENGALURU DN BENGALURU, DISMISSING THE IA.NO.33 FILED UNDER ORDER 18 RULE 17 R/W SEC.151 OF CPC., SEEKING TO RECALL DW 1 FOR FURTHER CROSS-EXAMINATION.

CRP NO.353/2018

BETWEEN:

SMT. PERIAMMA @ DARGA PEERANAMMA SINCE DEAD BY HER LR

NOORUNNISA D/O. PERIAMMA @ DARGA PEERANAMMA AGED ABOUT 35 YEARS RESIDING AT JANATHA COLONY DOMMASANDRA VILLAGE SHARJAPURA HOBLI ANEKAL TALUK-562125 BANGALORE DISTRICT. … PETITIONER (By Mr. ARAVIND SHARMA, ADV.)

AND:

1. THE KARNATAKA STATE BOARD OF WAKFS NO.06, CUNNINGHAM ROAD BANGALORE-560 052 REPRESENTED BY ITS CHAIRMAN.

2. THE ADMINISTRATOR DIST WAKF COMMITTEE BANGALORE URBAN DISTRICT BANGALORE-560001.

- - - THIS CRP IS FILED UNDER SECTION 83(9) OF THE KARNATAKA WAKF ACT, AGAINST THE ORDER DATED 31.03.2018 PASSED ON I.A.NO.39 IN O.S.NO.11/2003 ON THE FILE OF THE PRESIDING OFFICER, KARNATAKA WAKF TRIBUNAL BENGALUR DIVISION BENGALURU, DISMISSING THE I.A.NO.39 FILED UNDER ORDER 26 RULE 10-A OF CPC.

THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

Since these petitions under Section 83 (9) of the

WAKF Act, 1995 arise from orders passed by the WAKF

Tribunal (hereinafter referred to as ‘the Tribunal’ for 5

short) in the same proceeding, they were heard analogously and are decided by this common order.

2. In CRP No.48/2018, the petitioner has assailed the validity of the order dated 06.01.2018 by which application filed by the petitioner for amendment of the plaint has been rejected as barred by limitation.

In CRP No.49/2018, the petitioner has assailed the validity of the order dated 21.11.2017 passed by the

WAKF Tribunal, by which the application filed by the petitioner under Order XVIII Rule 17 read with Section

151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) for recalling

Defendant Witness No.1 for cross-examination has been dismissed. In CRP No.353/2018, the petitioner has assailed the validity of the order dated 31.3.2018, by which application filed by the petitioner for referring the documents Exhibits D3, D9, D10 & D16 to obtain an expert opinion by referring the same to Forensic Science

Laboratory, Madivala, Bengaluru has been rejected. 6

3. Facts giving rise to filing of these petitions briefly stated are that the petitioner filed a suit against the respondents seeking the relief of declaration of title in respect of ‘C’ Schedule properties as well as declaration that Certificate of Registration issued by defendant No.1 dated 23.06.1980 to the extent of

165x700 feet published in the official gazette is null and void. The petitioner has also sought for the relief of permanent injunction against the respondents restraining them from interfering with the possession of the petitioner over the suit property. The suit filed by the petitioner was remanded by this Court in the year

2009. The evidence of the petitioner after remanding was closed in the year 2009. Thereafter, the defendants for a period of four years took adjournments and even till 2017 did not conclude their evidence. On

17.12.2017, the matter was posted for cross- examination of Defendant Witness No.2. The petitioner filed an application under Order VI Rule 17 of the Code 7

seeking permission of the Trial Court for amendment of the plaint, by which relief of declaration that corrigendum to the registration certificate issued by defendant No.1 dated 07.05.1990 is illegal and void and is not binding on the plaintiff. The Tribunal, by an order dated 06.01.2018, rejected the aforesaid application on the ground that the same is barred by limitation. The aforesaid matter is subject matter of challenge in CRP

No.48/2018.

4. The petitioner filed an application under

Order XVIII Rule 17 of the Code seeking recall of

Defendant Witness No.1 for further cross examination.

The aforesaid application was rejected by an order dated 21.11.2017. The aforesaid order has been challenged by the petitioner in CRP No.49/2018. The petitioner filed an application on 22.03.2018 under

Order XXVI Rule 10(a) of the Code to refer the documents Exhibits D3, D9, D10 & D16 to obtain the expert opinion by referring the document to Forensic 8

Science Laboratory, Madivala, Bengaluru. The aforesaid application has been rejected by the Tribunal by order dated 31.03.2018, which has been challenged by the petitioner in CRP No.353/2018.

5. Learned counsel for the petitioner submitted that in the suit, the defendant No.3 produced the corrigendum and thereafter the petitioner acquired knowledge of the same and filed the application for amendment on 14.12.2017. The aforesaid application for amendment was necessary for a proper and complete adjudication of the controversy involved in the suit and could not have been dismissed on the ground that the same is barred by limitation. It is further submitted that defendant Nos.1 and 2 have already suffered a decree and they are acting through defendant

No.3. It is also submitted that since defendant No.3 had adduced evidence and has produced several documents after rejection of the petitioner’s application under Order XVIII Rule 17 of the Code on 24.08.2013, 9

therefore, a fresh application was filed and the same could not have been rejected on the ground that it was barred by res judicata . It is further submitted that original petitioner was uneducated and since the documents viz., Exhibits D3, D9, D10 & D16 contain the signature of the original petitioner, therefore, reference was sought to Forensic Science Laboratory, Madivala

Bengaluru.

6. On the other hand, learned counsel for respondent No.1 submitted that the proposed amendment is wholly unnecessary as in case the plaintiff succeeds in the suit, the corrigendum will cease to have an effect. It is further submitted that earlier an application filed by the petitioner under Order XVIII Rule

17 of the Code was rejected by an order dated

24.08.2013, therefore, the subsequent application was barred by res judicata . It is also submitted that since

Defendant Witness No.1 is no longer in office and his whereabouts are not known therefore, the petitioner is 10

not able to produce Defendant Witness No.1 before the

Court. It is also submitted that the application under

Order XXVI Rule 10(a) of the Code was made belatedly and therefore, the same was rightly rejected by the

Tribunal. The learned counsel for the respondent No.3 has adopted the submissions made by learned counsel for respondent No.1 and has submitted that the applications were filed with a view to protract the proceedings.

7. I have considered the submissions made by the learned counsel for the parties and have perused the record. In the application under Order VI Rule 17 of the Code, the petitioner has pleaded that the corrigendum dated 07.05.1990 was issued behind the back of the petitioner and the petitioner was neither heard nor any opportunity of hearing was afforded to the petitioner. It has further been stated in the affidavit that the petitioner has come to know about the memorandum just now. The affidavit in support of the 11

application under Order VI Rule 17 was filed on

14.12.2017. The corrigendum has been issued consequent to the Certificate of Registration dated

23.06.1980, which is under challenge in the suit. The relief of declaration that corrigendum dated 07.05.1990 is null and void is therefore, ancillary in nature to the relief sought by the petitioner in the suit. The Tribunal ought to have appreciated that the proposed amendment is necessary for fair and complete adjudication of the controversy involved in the suit and should have kept the question of it being barred by limitation open. The impugned order dated 06.01.2018, is therefore quashed and set aside and the application for amendment filed by the petitioner is allowed.

However, the question of limitation is kept open as the same is debatable in the fact situation of the case. The

Tribunal shall advert to the same at the time of decision of the suit.

8. So far as order dated 21.11.2017 is concerned, the Tribunal has rejected the application filed by the petitioner under Order XVIII Rule 17 of the

Code on the ground that the same was barred by res judicata as earlier application was filed on 24.08.2013.

The Tribunal ought to have appreciated that after rejection of the application filed by the petitioner on the aforesaid date, the defendant No.3 had adduced evidence and had produced fresh evidence in the form of documents. Therefore, it was necessary for the petitioner to cross-examine the Defendant Witness No.1 and in view of subsequent events, the application filed by the petitioner under Order XVIII Rule 17 of the Code could not have been dismissed as barred by res judicata. In case, the respondents are unable to produce the aforesaid witness before the Tribunal, the

Tribunal shall issue summons to the aforesaid witness for his appearance before the Tribunal. In the result, the aforesaid application is also allowed.

9. The petitioner has challenged rejection of his application under Order XXVI Rule 10(a) of the Code by an order dated 31.03.2018, on the ground that original petitioner was uneducated and used to put her thumb impression and however, in the documents viz., Exhibits

D3, D9, D10 & D16, the signature of the original plaintiff appears. Therefore, the petitioner had sought reference to the expert opinion from the Forensic Science

Laboratory, Madivala, Bengaluru with the admitted thumb impression of the original petitioner on Exhibit

D28. However, the aforesaid application has been rejected by the Tribunal on the ground of delay. It ought to have appreciated that the opinion of the expert from the Forensic Science Laboratory was necessary in order to effectively adjudicate the controversy involved in the suit and the issue with regard to the disputed signatures could not have been resolved without opinion of the expert. The impugned orders passed by the

Tribunal therefore, suffer from patent illegality and are perverse. The impugned orders are therefore quashed 14

and set aside and the applications filed by the petitioner are allowed. Since, the proceeding are pending before the Tribunal since 2009, the Tribunal shall make an endeavor to conclude the proceedings expeditiously within six months from the date of receipt of the certified copy of the order passed today.

Accordingly, the petitions are disposed of.

Sd/- JUDGE ss