Basheer Mohammed and T. Mohammed vs M. Muhammed and Others

Pius C. Kuriakose, J.—C.R.P. No. 503/2006 is filed by the defendants in W.O.S. No.55/2001 challenging the order in I.A. No. 128/2004. Under that order the learned Wakf Tribunal dismissed the above application, which was filed by them for setting aside the decree which was passed ex parte against them. Even though the respondents/plaintiffs have been served with notice, they have not entered appearance to contest the civil revision petition.

We have heard the submissions of Sri. Abraham K. John and we have gone through the impugned order. It is seen on a reading of the impugned order that one reason, which weighed seriously with the learned Wakf Tribunal for dismissing the I.A., was that though the ground taken in the I.A. was that the clerk of the Advocate committed mistake in noting the posting date of the case, the clerk had not sworn to any affidavit in support of the I.A. We feel that the learned Tribunal should have allowed the application even if it be by imposing terms. After all, the application is filed on time i.e. within 30 days of passage of the decree ex parte and no counter was filed to the application by the plaintiff. We are, therefore, of the view that the CRP No. 503/2006 can be allowed and the order impugned can be set aside and I.A. No. 128/2004 can be allowed. At the same time, we are inclined to do so only on imposing terms on the petitioners. Hence, CRP No. 503/2006 is allowed. The order in I.A. No. 128/2004 is set aside and I.A. No. 128/2004 will stand allowed and W.O.S. No. 55/2001 will stand posted before the Wakf Tribunal, Ernakulam for trial on condition that the revision petitioners pay a sum of Rs. 1500/- to the High Court Legal Services Committee within two weeks from today and produces receipt before the Wakf Tribunal. Once the learned Tribunal notices receipt against the payment of the above amount, W.O.S. No. 55/2001 will be posted for trial and will be tried and disposed of in accordance with law.

C.R.P. No. 453/2010 is filed by certain persons who were not parties to the suit. According to them, they are also necessary parties. In fact, they are impugning the order which is impugned in CRP No. 503/2006. We dispose of CRP No. 453/2010 observing that it is open to the petitioners therein to file application before the learned Wakf Tribunal seeking their impleadment as parties in W.O.S. No. 55/2001. It is needless to mention that if the amount ordered as payable to the High Court Legal Services Committee is not paid at time, the order impugned in both the CRPs will stand confirmed and CRPs will stand dismissed.