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The Sunni Central Board of Waqf U.P. Lucknow and anr. Vs. Sirajul Haq Khan Vakil and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 21 of 1962
Judge
Reported inAIR1963All537
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 40, Rule 1 - Order 43, Rule 1(S); Uttar Pradesh Muslim Waqfs Act, 1960 - Sections 60, 63(3), 75 and 76
AppellantThe Sunni Central Board of Waqf U.P. Lucknow and anr.
RespondentSirajul Haq Khan Vakil and ors.
Appellant AdvocateB.K. Dhaon, ;Mohd. Ayub, ;Naziruddin and ;Manmohan Krishna, Advs.
Respondent AdvocateA. Husain, Adv. for Respondents 1, 3, 5 and 7 and ;K.U. Rizvi, Adv. for Respondent No. 6
DispositionAppeal dismissed
Excerpt:
.....order 40 rule 1 and order 43 rule 1(s) of code of civil procedure, 1908 - security is furnished by appointed receiver - delivery of possession to receiver - held, order is not appealable. (iii) powers of tribunal - sections 60, 75 and 76 of u.p. muslim waqfs act, 1960 and - section 115 and order 40 rule 1 and order 43 rule 1(s) of code of civil procedure, 1908 - appointment of receiver is discretionary power of the tribunal - sections 75 and 76 not permits an appeal from an interim order of the tribunal during pendency of reference before it. - - sri hafiz ullah ansari was appointed in a vacancy created by the removal of sri mahmud ullah khan on account of his failure to furnish the security demanded from him. it directed that in case the parties failed to make such nomination within a..........did not press it. the sole question before us is whether the order of the civil judge acting as a tribunal appointing the receivers is a proper order. the reference is still pending before the tribunal and the question in the reference is whether the order of the board superseding the committee of management was a proper order. at the time when the application for the appointment of the receiver was made before the tribunal, the affairs of the dargah were being conducted by an administrator appointed by the board through a manager, sri fazal haq. the tribunal expressed the view that 'a receiver called as manager is already appointed in this case'. it is difficult to understand the reasoning of the tribunal that because the district judge, bahraich had appointed receivers earlier in suit.....
Judgment:

Desai, C.J.

1. This is a preliminary objection to the maintainability of this appeal on the ground that the order dated 10-5-1962 is an incomplete or interlocutory order, that the final order was passed on 7-12-1952 when possession was ordered to be delivered to the three receivers after they had furnished the required security and that the receiver Sri Mahmud Ullah Khan appointed under the order dated 10-5-62 was replaced by another receiver, Sri Hafiz Ullah Ansari. An appeal lies under Order XLIII, Rule 1 (s) from an order passed under Order 40, Rule 1. If an order is an order passed under Order XL, Rule 1, an appeal lies and it is irrelevant to go into the question whether it is an incomplete order or interlocutory order or a final order. Security has to be furnished after an order appointing a person as a receiver has been made under Rule 1; this is made clear by Rule 3, which lays down that 'every receiver so appointed shall (a) furnish such security' etc. It cannot be doubted for a moment that furnishing security has to follow the appointment of a person as a receiver and a person is appointed as a receiver when an order under Rule 1 is made. An appeal lies from an order made under Rule 1 and, therefore, as soon as an order under Rule 1 is made, an appeal can be filed from it even though the receiver has not furnished security. We cannot accept the contention that no appeal lies unless the receiver has furnished security as required by Rule 3.

When the Legislature itself provides that security is to be furnished after an appealable order has been passed, it is not open to any Court to say that no appeal can be filed even though an appealable order has been passed until security has been furnished, to say so would be a refusal to follow the law or importing words to render an absolute right of appeal into a conditional right of appeal.

We were referred to Upendra Nath v. Bhupendra Nath, 9 Ind Cas 582 (1) (Cal) and Srinivas Prosad Singh v. Kesho Prosad Singh, 12 Ind Cas 745 (Cal), in which it was held by the Calcutta High Court that an order appointing a receiver is an interlocutory order and that a final order is passed when the receiver furnishes security. Neither Order XI nor Order XLIII deals with final or interlocutory orders or distinguishes between them. As a matter of fact. Order 43 allows appeals mainly from interlocutory orders and when it allows appeals from interlocutory orders, a further division of interlocutory order into two classes seems to be without any justification. With great respect we are unable to accept the view taken by the High Court of Calcutta..

The view that is taken by us is supported by Palaniappa Chetty v. Palaniappa Chetty, ILR 40 Mad 18 : (AIR 1918 Mad 1146) and Nrisingha Charan Nandy v. Rajniti Prasad Singh, AIR 1932 Pat 360. An order contemplated by Rule 1 is an order appointing a receiver of property. When the Court finds it to be just and convenient, it by order appoints a receiver. Every order of appointment of receiver, therefore, includes a finding that it is just and convenient to appoint a receiver, thereby creating an office of receiver and a direction nominating a certain person to fill the office of receiver so created. Actually the order appointing a receiver has to follow the finding that it is just and convenient to appoint a receiver. This is clear from the words used in Rule 1 'where it appears to the Court to be just and convenient, the Court may by order (a) appoint a receiver', which mean that appointing a person as a receiver is the order to be passed under Rule 1; deciding that it is just and convenient is only a finding on which the order is to be based. An appeal is provided by Order 43, Rule 1 (s) from an 'order' made under Rule 1 of Order 40, that is from the order or direction appointing a certain person as a receiver and not from the finding that it is just and convenient to appoint a receiver or creating an office of receiver. Here this order was passed on 10-5-1962; that was the order by which three persons were appointed as receivers. On 27-4-1962 the Trial Court had only given the finding that it was just and convenient to appoint a receiver or receivers, i.e., creating an office or offices of receiver or receivers. The order passed by the Trial Court on 10-5-1962 was, therefore, an order made under Rule 1 of Order 40 and was appealable.

2. One of the three receivers appointed on 10-5-1962, namely Sri Mahmud Ullah Khan, refused to give security and the Trial Court thereupon set aside the order appointing him as a receiver and appointed Sri Hafiz Ullah Ansari in his place on 3-12-1962. Sri Hafiz Ullah Ansari and the other two receivers furnished security and on 7-12-1962 the Trial Court passed an order that possession should be delivered to them. This order of 7-12-1962 was not an order contemplated by Rule 1 because firstly, it was not an order appointing a receiver, they having been already appointed by the orders dated 10-5-1982 and 3-12-1962; secondly. It was an order putting the receivers into possession and thirdly, it was an order passed after an order passed by the Trial Court under Rule 3 which had to follow and could not precede or even be simultaneous with an order under. Rule 1. It, therefore, could not be contended that the Trial , Court passed an appealable order in respect of receivership on 7-12-1962 and not on an earlier date.

3. We are also not impressed with the argument that even if this appeal is allowed, the appointment of Sri Mahmud Ullah Khan will be set aside and not the appointment of Sri Hafiz Ullah Ansari, which was ordered on 3-12-1962 and 7-12-1962 after the order under appeal had been passed. Sri Hafiz Ullah Ansari was appointed in a vacancy created by the removal of Sri Mahmud Ullah Khan on account of his failure to furnish the security demanded from him. As we said earlier the Trial Court decided to create tnree offices of receivers and filled them with Sri Mohammad Bashir, Sri Manzur Ahmad Shah and Sri Mahmud Ullah Khan. One office was vacated on the removal of Sri Mahmud Ullah Khan and Sri Hafiz Ullah Khan was appointed in that vacancy. If the order dated 10-5-1962 creating three offices of receivers and appointing three persons to fill them itself is set aside in this appeal, there would remain no office which could be filled by Sri Hafiz Ullah Ansari and his appointment will automatically come to an end. !n any case, it would be open to this Court, if it allows this appeal, to pass a consequential order that the appointment of Sri Hafiz Ullah Ansari by a subsequent order stands cancelled. If this Court by allowing the appeal sets aside the order of appointing a receiver or receivers, the order appointing Sri Hafiz Ullah Ansari cannot stand and it will be within the jurisdiction of this Court to cancel it. It is therefore, not correct that no order that this Court would pass while allowing the appeal will have any effect on Sri Hafiz Ullah Ansari's continuing as a receiver. The appeal is directed against the finding that it is just and convenient to appoint a receiver and against the orders creating three offices of receivers and appointing persons to fill them and must be deemed to include challenging the appointment of Sri Hafiz Ullah Ansari as a receiver to fill one of the offices. In the result we overrule this preliminary objection.

KATJU, J.

4. This is a defendants' appeal which is directed against an order appointing certain persons as receivers passed by the Civil Judge Bahraich, acting as a Tribunal., during the course of a reference made to him under Sections 63/73 of the U.P. Act XVI of 1960.

5. The litigation between the parties has a chequered history. It relates to an endowment described as Waqf Syed Salsar Masood Ghazi. Syed Salaar Masood Ghazi, said to be a nephew of Mohammad Ghazni, met his death at the hands of a local chieftain and was buried in village Singha Parasi in district Bahraich. The history of the endowment and the litigation connected with it have been given at length in the judgment of this Court in Sunni Central Board of Waqf. U.P. v. Sirajul Haq Khan : AIR1954All88 and in the decision of the Supreme Court on appeal from the aforesaid decision reported in Sirajul Haq Khan v. The Sunni Central Board of Waqf. U.P. : [1959]1SCR1287 .

6. Certain facts, which are material in the case in appeal, may be briefly stated.

A body of persons known as the khuddam of Dargah had been looking after and performing the ceremonies and services at the shrine of Syed Salaar Masood Ghazi situate in Singha Parasi since the days of the Muslim Kings of Delhi. The property endowed to the shrine was confiscated by the British Government after the so called mutiny of 1857. Fresh settlements were made by the Government and the property endowed to the Dargah was revived by the issue of a fresh grant. About the year 1859 or 1860 a sanad was said to have been granted to one Faqiruilah, who was the head of the Khadims, of rent free tenure of village Singha Parasi and he was given the right to collect the usufruct of the village for the maintenance of the Dargah. In 1872 it was brought to the notice of the Chief Commissioner of Oudh that the Khadims of the Dargah were mismanaging the affairs of Dargah which resulted in the appointment of a Committee for examining the affairs of the Dargah. The Committee suggested the appointment of a jury of five persons including two khadims for managing the affairs of the Dargah and its properties. Again, in 1892 Inayatullah and certain other persons instituted a suit for the possession of the Dargah along with certain other properties. The suit was decreed by the Subordinate Judge, but the Judicial Commissioner on appeal dismissed the suit and held that the property was waqf and it was neither proper nor open to the Government to interfere in the management of the property belonging to the waqf. It was held that the Dargah was a religious establishment within the meaning of Act 20 of 1863. Subsequently in 1902 a suit was instituted on behalf of the Government of the then United Provinces of Agra and Oudh, under Ssc. 539 now Section 92) of the Code of Civil Procedure for settling the management of the waqf. The District Judge of Gonda sanctioned a scheme for the administration of the trust under which a committee of management of ten persons was appointed and the trust property was vested in a Board of two trustees, one of whom was to be the president of the committee of management.

There was some further litigation after 1934 and subsequently in 1940 suit No 1 of 1940 was instituted by five Musalmans against the managing committee and the trustees for their removal and for the settlement of a fresh scheme. The suit was decreed, but the decree was set aside in appeal by the Chief Court and some minor amendments were made in the existing scheme of the management. In 1936 the Muslim Waqfs Act was passed. The Sunni Central Board purporting to act under the Waqfs Act gave a notice in 1946 for the supersession of the managing committee. The respondents thereupon filed a suit for declaration that the Act did not apply to the endowment and consequently the Sunni Central Board had no right to dissolve the managing committee. The suit was eventually dismissed on appeal by this Court and the decision of this Court was affirmed by the Supreme Court. Eventually the Board appointed a provisional committee of fifteen persons for managing the affairs of the Dargah. Against the aforesaid appointment a writ petition was filed in this Court, which is still pending. The Board took over the possession of the trust properties on 25-9-58. The Board filed a suit en 23-10-58 under Section 92 of the Code of Civil Procedure praying inter alia for the removal of the persons claiming to be the mutwallis of the Dargah. During the pendency of the aforesaid suit the respondent Sirajul Haq made an application on 11-5-1960 for the appointment of a receiver. The Civil Judge of Bahraich, before whom the aforesaid suit was pending, allowed the application and appointed three persons, viz., Wasi Ahmad, Mazhar Husain and Mujibullah as receivers of the Dargah endowment.

7. The new Muslim Waqfs Act (U.P. Act No. XVI of 1960) came into force whereunder by Section 63 of the Act the Board was given the powers of superseding any existing committee for the supervision of an endowment. On 3-12-60 the Board moved for the withdrawal of the aforesaid suit filed by it under Section 92 of the Code of Civil Procedure. The suit was dismissed on 3-12-1960 and the receivers appointed by the Court were directed to hand over possession to the administrators appointed by the Board. Aggrieved by the aforesaid order of the Board superseding the management of the committee, the respondents made an application under Section 63(3) of U.P. Act No. XVI of 1950 for referring the matter to a Tribunal for adjudication.

When the matter came before the Tribunal an application was made by one Ghulam Masood, who claimed to be a hereditary Khadim, for the appointment of a receiver on the ground that the Dargah property was being mismanaged by the administrators appointed by the Board. The Tribunal expressed the view that Sri Fazal Haq, who had been appointed as a manager by the administrator, was not a proper person for being entrusted with the management of the affairs of the Dargah and it was just and convenient to remove him and entrust the endowed property to another receiver. The Civil Judge, acting as a Tribunal, held by his order, dated 27-4-62, that a receiver should be appointed, but gave an opportunity to the parties to give the name of a person or a group of persons by mutual agreement for being appointed as a receiver or receivers. It directed that in case the parties failed to make such nomination within a period of one week of the order passed by the Tribunal then 'some Vakil will be appointed as a receiver in this case.' It appears that the parties failed to give any agreed name or names for being appointed as receivers in the case and the Civil Judge, by his order, dated 10-5-62, appointed Sri Mohammad Bashir, Sri Manzoor Ahmad Shah and Sri Mahmood Ullah Khan as receivers for managing the property of the Dargah. Aggrieved from the aforesaid order the appellants have come in appeal before us. A preliminary objection was taken by the respondents against the maintainability of the appeal. We have by a separate order overruled the preliminary objection.

8. It was contended by the appellants that the Tribunal had no power to appoint a receiver and it could not remove persons from possession who could not be dispossessed at the instance of the applicant. It was contended that the Board was in possession of the endowed properties since 25-9-1958 and the respondents had no right to dispossess the Board and they could not thus claim to be put in possession. It was further contended that the Tribunal had no jurisdiction to appoint a receiver and there was no adequate ground for such appointment. It was further urged that the Tribunal had not recorded a finding that irreparable injury would be caused to the respondents and hence a receiver was appointed. Mr. Akhtar Husain, Counsel for the respondents, contended that the scheme framed by the Board in 1902 could not be disturbed. It was further contended that under Order XL, Rule 1(2) of the Code of Civil Procedure the Court could dispossess any party to the suit irrespective of the consideration whether a party had any present right to remove the other. It was contended that the Tribunal had jurisdiction to appoint receivers and it had the powers of a Civil Court under the Code of Civil Procedure for appointing receivers and no appeal lay from the order of the Tribunal.

9. It may be mentioned that Ghulam Masood, respondent No. 6, who had initially made the application for the appointment of a receiver before the Tribunal, subsequently did not press it. The sole question before us is whether the order of the Civil Judge acting as a Tribunal appointing the receivers is a proper order. The reference is still pending before the Tribunal and the question in the reference is whether the order of the Board superseding the committee of management was a proper order. At the time when the application for the appointment of the receiver was made before the Tribunal, the affairs of the Dargah were being conducted by an administrator appointed by the Board through a manager, Sri Fazal Haq. The Tribunal expressed the view that 'a receiver called as manager is already appointed in this case'. It is difficult to understand the reasoning of the Tribunal that because the District Judge, Bahraich had appointed receivers earlier in suit No. 2 of 58, therefore, the aforesaid manager should be treated as a receiver. As mentioned earlier, the receivers appointed by the District Judge in suit No. 2 of 1958 were directed to hand over the possession of the trust properties to the administrators appointed by the Board when that suit was dismissed on 3-12-1960. It is, therefore obvious that Sri Fazal Haq, who was appointed as a manager by the administrator, was not functioning as a receiver appointed by the Court. He was appointed by the administrator, who, in his turn had been entrusted with the management of the trust properties by the Board. It cannot be denied that the Tribunal had the powers of a Civil Court for appointing a receiver in course of the proceedings of the reference made to him under Section 63(3) of the Act of 1960. Chapter IX of Act 1960 deals with the constitution or the Tribunals and their powers and functions. Section 71 of the Act empowers the Tribunal to adjudicate upon 'the dispute, question or matter in accordance with the provisions of this Act' referred to it. Section 72(1) directs the Tribunal to follow the same procedure as is provided in the Code of Civil Procedure, 1908, in regard to suits subject to the provisions of the Act and any rules that may be made in this behalf. Section 74 of the Act runs thus:

'74. A Tribunal shall be deemed to be a civil Court and shall have the same powers as are vested in such a Court under the Code of Civil Procedure, 1908, when trying a suit or executing a decree or order.'

It is obvious that the Tribunal has the power to act under Order XL of the Code of Civil Procedure 'and appoint a receiver if it thinks that it is just, convenient and proper to do so. Section 75 of the Act bars the institution of any suit or other proceedings with respect to any dispute or question or matter which is required or permitted under the Act to be referred to a Tribunal for adjudication. Section 76 makes the award of a Tribunal final and conclusive and binding upon the parties concerned and gives the award the force of a decree which cannot be questioned, nor appealed against in any Court of law. The proviso to the section, however, gives revisional jurisdiction to the High Court for examining 'the record of any case for the purpose of satisfying itself as to the correctness, legality or propriety of any award made under this Act' and passing such orders as it deems fit. While Section 76 of the Act makes the award of the Tribunal final and conclusive and clearly says that no appeal would lie against it in any Court of law, it could be said that Section 76 does not pointedly say that no appeal shall lie from an order passed by the Tribunal during the pendency of the reference before it. Section 75, however, bars the institution of any suit or proceeding in any civil Court with respect to any dispute or question or matter referred to a Tribunal for adjudication. It may be that there in no express bar against an appeal from an order appointing a receiver by the Tribunal and in the absence of any such bar the provisions of Order XLIII of the Code of Civil Procedure would be applicable and since an order appointing a receiver is an appealable order, an appeal from an order of the Tribunal appointing receivers would be maintainable.

It would appear from the provisions of Sections 75 and 76 that the Legislature clearly intended that the proceedings before the Tribunal shall be conclusive and the High Court has been vested, only with revisional powers for examining the correctness, legality or propriety of any award made by the Tribunal. An order passed by the Tribunal during the pendency of the reference before it would not be an award and would not attract the revisional jurisdiction of the High Court. It is thus clear that no revision would lie in this Court from an order appointing receivers by the Tribunal during the course of the pendency of the reference before it.

Even though there is no express bar against appeal from an interim order passed by the Tribunal, it would appear that when the award itself is made final and conclusive and no appeal is provided against, such an award and there is an express bar against instituting any suit or proceeding in a civil Court with respect to any dispute or question which may be referred to a Tribunal for adjudication, it clearly follows that the Legislature intended that there should be no appeal from an interim order passed by the Tribunal during the course of the pendency of the reference before it.

10. We overruled the preliminary objection againstthe appeal only on the ground that the order, dated10-5-1962, was not an incomplete or interlocutory orderand it could not be said that the final order was passedon 7-12-1982 when possession was ordered to be delivered to the three receivers after they had furnished therequired security and the aforesaid order, dated, 10-5-62did not suffer from any infirmity from the fact that oneof the receivers appointed by the Tribunal by its order,dated 10-5-62, had been replaced by another receiverSri Hafiz Ullah Ansari. At that stage we did not considerthe question whether the appeal was maintainable underthe provisions of the Act of 1960. We are of the opinionthat the provisions of Sections 75 and 76 of the MuslimWaqfs Act of 1960 operate as a bar to the maintainabilityof an appeal from an interim order of the Tribunal appointing receivers during the pendency of the referencebefore it.

11. Even assuming that an appeal lies from an order passed by the Tribunal we do not find sufficient grounds for interfering with the order passed by the Tribunal. The appointment of a receiver under Order XL, Rule 1 C.P.C. is a matter within the discretion of the Tribunal. The Tribunal found that it was just, convenient and proper under the circumstances of the case to appoint certain persons as receivers. The receivers are now entrusted with the management of the property of the aforesaid Dargah. It is alleged by the appellant that the receivers have been mismanaging the property, that they are inexperienced and they have been acting prejudicially against the interest of the Dargah. The Tribunal, however, expressed the view that Sri Fazal Haq was not managing the affairs of the trust properly and it was suffering on account of his mismanagement. It, therefore, thought it just and proper to appoint the receivers. Since the Tribunal is still seized of the reference before it and the dispute in reference would be finally decided by the Tribunal, we do not think that it would be in the interest of the trust to make further changes in the management.

12. Under these circumstances, we do not see anyreason for interfering with the discretion exercised bythe Tribunal in appointing the receiver. We, therefore, seeno force in this appeal and dismiss it with costs.


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