M.L. Shrimal, J.
1. This special appeal by the Board of Muslim Wakfs for Rajasthan, Jaipur under Section 18 of the Rajasthan High Court Ordinance No. 15 of 1949 (hereinafter to be referred as the Ordinance') is directed against the judgment of the learned Single Judge dated December 9, 1969 passed in Civil Miscellaneous Application No. 107 of 1969 refusing to declare the decree dated July 9, 1969 passed in S.B. Civil Second Appeal No. 602 of 1963 as void.
2. Tersely put shorn of unnecessary details the facts giving rise to this special appeal are as under.
3. The respondents Bhanwar Chand, Padamchand, and Moolchand, in the status of trustees of Khatargach sect filed a suit on March 20, 1958 in the court, of Civil Judge, Nagaur for declaration of title to, and possession of, a 'nohara', described in para No. 3 of the plaint against Ayub, Hafiz, Kasam and others as managers of Masjid Khari, situated in Mohalla Teliwada, Nagaur. The defendants contested the suit on the ground that the documents relied upon by the plaintiffs were forged and the property in dispute belonged to the Masjid and was under its possession for more than 60 years. The learned Civil Judge by his judgment and decree dated July 31, 1962 decreed the suit of the plaintiff. The managers of the 'Masjid' (mosque) took up an appeal before the District Judge, Merta, who by his judgment dated November 30, 1963 dismissed the same. Thereafter, they filed a second appeal which was also dismissed by Hon'ble Lodha. J., on July 9, 1969.
4. On September 2, 1969 Mohd. Ayub informed the Board of Muslim Wakfs for Rajasthan, Jaipur about the nature of litigation and also submitted a copy of the judgment dated July 9, 1969 and prayed that necessary legal steps may be taken for saving the wakf property. On receiving this information the appellant filed an application on September 8, 1969 under Section 57(3) of the Wakf Act, 1954 read with Section 151 of the Code of Civil Procedure and prayed that the decree passed in S.B. Civil Second Appeal No. 602 of 1963 be declared vend because it was passed without any notice to the Muslims Wakf Board, though the proceedings related to a title to a wakf property. This application came up for heating before Hon'ble Lodha, J., who by his judgment dated December 9, 1969 dismissed the same. He, however, held that it would be open to the Board to file a suit in the civil court of competent jurisdiction for the decision of the question whether the 'nohara' in question was a wakf property or not.
5. Being aggrieved with this order the appellant has come up in special appeal under Section 18 of the Ordinance.
6. It is a common ground between the parties that this appeal has been filed without obtaining the leave of the learned Single Judge under Section 18(2) of the Ordinance.
7. The respondents have raised a preliminary objection as regards the maintainability of the special appeal for want of a leave of the court as contemplated by Section 18(2) of, the Ordinance, on the. ground that the judgment dated December 9, 1969, appealed against, was passed is a civil miscellaneous petition No. 107 of 1969, but if arose out of S.B. Civil Second Appeal No. 602 of 1963. Although the application before the learned Single-Judge out of which, the impugned judgment arises was registered as a miscellaneous application yet the appellate jurisdiction of the court was invoked and exercised in respect of an order which was itself made in exercise of, the second appellate jurisdiction by the court. Mr. Hastimal urged that the learned Single Judge while deciding the application dated September 8, 1969 did act in the exercise of his appellate jurisdiction in respect of the appellate decree of the subordinate court and the impugned order before this Court was passed by the learned Single Judge hi the exercise of his second appellate jurisdiction for the purposes of Section 18 of the Ordinance.
8. The learned, counsel in support of his contention placed reliance on Sohanlal v. Laxmilal 1960 RLW 256, Sampatraj v. Laduram and Ors. , Manager Sasta Sahitya Press Ltd. v. Rampal 1974 RLE 492 and Durgalal v. Hariram 1976 WLN 35.
9. The learned Counsel for the appellant has vehemently urged that his case is not covered by the; bracketed portion Section 18(1) of the Ordinance. The contention of the learned Counsel, for the appellant was that the learned Single judge, when he passed the order refusing to declare the decree and judgment dated July 9, 1969 as void was exercising, original jurisdiction in hearing an application under Section 57(3); of the Wakf Act, 1954 (hereinafter referred as the Act), and Was not exercising the appellate jurisdiction and consequently the special appeal is maintainable.
10. The point for consideration, therefore, is whether the judgment dated December 9, 1969 passed by Hon'ble Lodha, J., in S.B. Civil Miscellaneous Application No. 107 of 1969 was made, in exercise of the second-appellate jurisdiction or was made, in an independent original, proceeding under the Act? Whether the, appeal could be filed as of right or must be filed with the leave of the learned Judge? Undoubtedly, both are rights of appeal. In one case, the party can directly approach a Division Bench, and try its luck. In the other case he has first to obtain, leave of the judge who had decided the matter and then file the appeal. Undoubtedly the second remedy is more' onerous and seek, to curtail the right, of appeal. If, it could be held in the present case that the Court under Section 57(5) of the Act was itself exercising the second appellate jurisdiction then undoubtedly the present appeal filed without the leave of the learned Judge is incompetent! In order to appreciate, the rival contentions of the parties let us read Section 18 of the Ordinance and Section 57 of the Act.
11. Section 18 of the Ordinance reads as under:
18. Appeal to the High Court from Judges of Court:
(1) An appeal shall lie to the High Court from the judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Section 43 or in the exercise of criminal jurisdiction of one Judge of the High Court.
(2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.
12. Section 57 of the Wakf Act, 1954 reads as under:
57. Notice, of suits, etc., by Court:
(1) In every suit or proceeding relating to a title to wakf property or the right of a mutawali, the Court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
(2) Whenever any. wakf property is notified for sale in execution of a decree of a civil court of for the recovery of any revenue, cess, rates of taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.
(3) In the absence of a notice under Sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf.
(4) In the absence of a notice under Sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the Court or other authority under whose order the sale was held.
13. A close reading of the above quoted sections reveals that in every suit or proceeding relating to a title of wakf property the Court is bound to issue a notice to the Board at the cost of the party instituting such suit or proceeding. An application under Section 57(3) is required to be filed by a third party who was not a party to the proceedings and the relief which the Court on such an application can grant is to declare the decree or order in that suit qt proceeding as void. The Court is not required to re-judge the merits of the case, and set aside the decree or modify it. The impugned order in this ease was made in a proceeding started under the Act and as such the qualification for a right to appeal imposed by Section 18(2) of the Ordinance must need not be satisfied. Section 57(3) of the Act vests a special jurisdiction on the concerned court to declare the decree void. It gives an additional right to the Wakf Board to get a decree or order declared void by making an application which otherwise in the absence of Section 57(3) of the Act could not have been done unless the Board would have filed a suit for declaration of such a decree or order as void. The concerned court exercising the powers under Section 57(3) of the Act exercise original jurisdiction. Whenever as a matter of fact an order in exercise of original jurisdiction is passed by a Single Judge of this Court, the aggrieved party as of right can file an appeal before a Division Bench of this Court without obtaining a leave under Section 18(2). The Single Judge while passing the order dated December 9, 1969 was exercising original jurisdiction and was not acting in exercise of his second appellate jurisdiction though he passed an order affecting the decree and judgment dated July 9, 1969 passed by him in exercise of his second appellate jurisdiction. That being case the argument that since no leave is obtained no appeal will lie is fully untenable.
14. Reference may be made to Vasudevah Namboothiri v. Narayanan Namboodiri 1960 (Vol. II) (sic). A debtor in that case submitted a civil petition No. 384 of 1967, under Section 7 of the Kerala Agriculture Debt Relief Act (XXXI of 1958) to amend the decree passed by the High Court in second appeal No. 82 of 1956. The petition was dismissed. Aggrieved of that the debtor filed an appeal before the Division Bench of the Kerala High Court. The office raised an objection regarding maintainability of that appeal. While disposing of the office objection the Court observed as under:
Section 5 of the High Court Act provides for three types of appeals : (1) appeals against judgments or orders of a Single Judge in the exercise of original jurisdiction, (2) appeals against judgments of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court and (3) appeal against judgments of a Single Judge in the exercise of appellate jurisdiction in respect of decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passes the judgment certifies that the case is a fit one for appeal. In other-words, there is an appeal against a judgment or order of a Single Judge in the exercise of original jurisdiction; there is an appeal against a judgment of a Single Judge in a first appeal; and there is also an appeal against a judgment of a Single Judge in a second appeal if the Judge who disposes of the second appeal grants leave or certifies that the case is a fit one for a further appeal. The question for us to consider is whether the order passed by a Single Judge in the Civil Miscellaneous Petition for amendment of the decree under Section 7 of Act XXXI of 1958 falls within any one of these categories mentioned above.
The order cannot fall within categories 2 and 3, because it appears fairly clear that the order is not one passed in the exercise of the appellate power or the second appellate power of the Single Judge. Can it be said that the order falls under the first category as it is passed in the exercise of the original power of the Single Judge? To us it appears that an order passed under Section 7 of the Act XXXI of 1958 is more an original order than an appellate order. It cannot be doubted that an appeal lies against such an order refusing to amend the decree under Section 7 of Act XXXI of 1958 vide Varkey Mathew v. Velayudhan Pillai 1965 KLT 674. If an appeal, lies, is the forum a Division Bench of this Court or the Supreme Court? And on this question we are of opinion that, since the order passed in the Civil Miscellaneous Petition is in the exercise of the original jurisdiction of the Single Judge, the appeal must lie to a Division Bench of this Court under Section 5(1) of the High Court Act.
15. In State Wakf Board, Madras v. Abdul Azeez Sahib and Ors. (sic) the Division Bench while disposing of the letters patent appeal instituted, by the Wakf Board of the Madras State, represented by its Secretary, from the judgment of the Single Judge in Civil Miscellaneous Petition No. 6252 of 1964 in Second Appeal No. 965 of 1961, observed that even if the Chairman of the State Wakf Board obtains knowledge of a pending proceeding in some informal manner or in a context that has no relation to the functions of the State Wakf Board, it cannot be presumed that such knowledge is the official knowledge of the Chairman and by a further process of reasoning list it is the knowledge of the Wakf Board itself. In the facts and circumstances of that case their Lordships held that the application filed under Section 57(3) of the Wakf Act was within time, and as a necessary corollary it was incumbent upon the court to allow the appeal. Their Lordships accepted the appeal aid declared (he decree passed in the Second Appeal as void within the meaning of express language of Section 57(5) of Act No. XXXI of 1954. In this case it has not been made clear whether the appeal before the Division Bench of the Madras High Court was filed after obtaining leave or not and as such this case can not be of much avail to either of the parties.
16. The cases relied upon by the learned Counsel for the respondents are distinguishable on facts. In all those cases the proceedings were between the same parties or their legal representatives, and the relief sought was for amendment or setting aside the decree or order passed by the concerned court in exercise of its second appellate jurisdiction, whereas in the case, on hand the appeal is sought to be filed against an order which has been passed in independent proceedings though ultimately affecting the validity of the decree passed in the second appeal. An application under Section 57(3) can be filed before the Original court also against its decree. We are, therefore, satisfied that whatever the type of function that the court performs under Section 57(3) of the Act, when an application is received by the aggrieved party, it is not certainly second appellate jurisdiction contemplated by Section 18(2) of the Ordinance.
17. We do not find any merit in the preliminary objection raised by the learned Counsel for the respondents, and is disallowed.