Abdul Sattar vs Karnataka State Board of Wakf and Others

K.N. Phaneendra, J.—This Civil Revision Petition is filed calling in question the order dated 07.02.2014 passed by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga, in O.S. No. 3/2013 in dismissing the suit of the plaintiff as not maintainable.

I have heard the arguments of Sri N. Krishnacharya, learned counsel for petitioner and also Sri Liyaqat Fareed Ustad, learned counsel appearing for respondent No. 2 and Miss. Shobha, learned counsel appearing for respondent No. 3. I have carefully perused the records.

The undisputed facts are that, Petitioner/plaintiff by name Abdul Sattar filed a suit before IV-Additional Civil Judge (Junior Division) Gulbarga, in O.S. No. 563/2012 for specific performance of contract entered into between the petitioner and respondent No. 3 herein vide agreement dated 27.06.2009. The said plaint was returned to the plaintiff for proper presentation before the Wakf Tribunal. Thereafter, suit was filed before the District Wakf Tribunal and the same was numbered as O.S. No. 3/2013. It is the case of the plaintiff that the 3rd respondent has agreed to sell the suit property for consideration of Rs. 1,00,000/-. The plaintiff has agreed to purchase the property and respondent No. 3 in turn, executed the agreement of sale on 27.06.2009 and agreed to execute the sale deed later. The plaintiff got issued a legal notice dated 28.02.2011, 03.06.2012 and 08.09.2012 respectively requesting the defendant (respondent No. 3) to execute the sale deed. As he failed to do so, the suit came to be filed. On coming to know that the suit property is notified as a Wakf property, the said suit was returned for presentation before the Wakf Tribunal. After the presentation of the said suit before the Wakf Tribunal, respondent No. 3 herein as defendant appeared in pursuance of the summons issued. The Court after hearing the parties framed a point for consideration as to whether the suit of the plaintiff is maintainable. Answering the said point in the negative, the tribunal has dismissed the suit. The main ground on which the suit was dismissed is that suit schedule property is not a private property and it is a Wakf property and the same has been declared in the Official Gazette notified on 16.07.1974. The entries made in the gazette notification have attained finality. It was not challenged by anybody. Therefore, the said gazette notification was binding on all the parties. The property which is involved in the suit is also covered under the said gazette notification, particularly, said Sy. No. 15 measuring 15 acres 32 guntas situated at Shaik Roza, Gulbarga. The Court has also relied upon the ruling of the Apex Court reported in Sayyed Ali and Others Vs. Andhra Pradesh Wakf Board Hyderabad and Others, and also ruling of this Court reported in Karnataka Board of Wakfs Vs. State of Karnataka, wherein, the courts have held that gazette notification issued by the government is conclusive proof of wakf property and unless that is challenged before the competent Court and till the gazette notification is cancelled, the property shall be treated as wakf property. Therefore, the tribunal was of the opinion that the document alleged to have been executed by respondent No. 3 in favour of plaintiff agreeing to sell certain portion of Sy. No. 16 of Shaik Roza of Gulbarga is hit by Section 51(1) of the Wakf Act, 1995n and on that ground, suit came to be dismissed.

While the suit is dismissed, the Wakf Tribunal has not applied its mind with regard to the consequence of filing suit for specific performance. The Specific Relief Act, 1963 (for short ''the Act'') not only deals with granting of specific relief with regard to the agreement entered into between the parties but also refers to awarding of compensation in certain cases as contemplated under Section 21 of the Act. Section 20 of the Act deals with the discretion vests with the Court to decree the suit for specific performance or to dismiss. Section 20 deals with under what circumstances by means of exercising judicial discretion the Court can dismiss the suit or refuse to grant decree of specific performance. However, Section 21 empowers the Court to award compensation even when the Court has refused to grant specific performance. Of-course, in this particular case, the plaintiff is not entitled for specific performance of the agreement in view of the gazette notification as observed by the Wakf tribunal. However, whether the plaintiff is entitled for compensation has not been dealt with by the tribunal. Section 21 of the Act reads as hereunder:

"21. Power to award compensation in certain cases.--

(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly

(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:

"Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.

Explanation.- The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section."

On meticulous reading of the above said provision, it clearly disclose that compensation can be awarded when there is breach of contract in addition to or in substitution of such performance. If the Court decides for any reason, specific performance cannot be granted, though it holds that there was contract between the parties and there was breach of such contract by the defendant, for breach of contract the Court has ample power to award compensation. Nevertheless, it all depends upon the facts and circumstances of the case, conduct of the parties to the contract and that has to be decided by the Court only after recording the evidence between the parties. In determining amount of compensation the Court shall also be guided by Section 73 of Indian Contract Act. There is rider to exercise power under Section 21 of the Act, where it is not pleaded and claimed for compensation in the plaint, such compensation should not be normally awarded, provided Section also empowers that wherein the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section.

The tribunal though dismissed the suit has lost the sight of the provision under Section 21 of the Act, where the plaintiff is entitled to claim compensation under Section 21 for breach of contract, whether it is a void contract or valid contract. But there is breach of contract on the part of the respondent No. 3. If respondent No. 3 made the plaintiff to believe that he is the owner of the property having right, title and interest and by virtue of that belief if the parties have entered into the contract, any amount advanced on the basis of the agreement or any loss occurred to the plaintiff by virtue of transaction, whether such amount can be compensated is the question ought to have been considered by the Wakf Tribunal and that has not been done so far as this case is concerned. Therefore, in my opinion, the Wakf tribunal has to consider this aspect. If the Court has no jurisdiction to deal with the wakf property and it already shut the doors to plaintiff so far as the specific performance of agreement is concerned but the tribunal has no jurisdiction to shut the relief to the plaintiff so far as the compensation is concerned. Therefore, it ought to have returned the plaint to the plaintiff for proper presentation before the competent Civil Court in order to claim compensation under Section 21 of the Act by making necessary amendment to the plaint. Therefore, with these observations, I proceed to pass the following:

ORDER

The petition is partly allowed. Consequently, the order passed by the Wakf Tribunal in dismissing the suit so far as the specific performance is concerned is confirmed. The plaintiff is no more entitled to claim such relief either before the tribunal or before the civil Court. However, the tribunal is directed to return the plaint to the plaintiff so as to re-present the same before the competent Civil Court and also plaintiff is permitted to make necessary amendment to the plaint only for the purpose of claiming compensation under Section 21 of the Act. In the event of plaintiff filing any such application before the Trial Court it should be magnanimously considered and the Trial Court has to proceed with the case in accordance with law.