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Judgment
K.N. Phaneendra, J.—The petitioners aggrieved by the order passed by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga, in C. Misc. No. 1/2014 dated 05.04.2014 dismissing the application filed under Order IX Rule 9 of CPC r/w. Section 141 of CPC, has filed this petition.
I have heard the arguments of the learned counsel appearing for Respondent Nos. 1, 3 and 4 and learned HCGP appearing for Respondent Nos. 2 and 5. The notice to be issued to Respondent No. 6 was dispensed with by this Court.
The brief factual matrix emanate from the records are that, the petitioners have filed an application under Section 83(2) of the Karnataka Wakf Act, 1995 before the Karnataka Wakf Tribunal claiming that the petitioners are the owners and in possession of the land in Survey No. 218 measuring 18 acres 17 guntas situated in Afzalpur, Gulbarga District. They have also inter alia challenged the proceedings initiated under Section 54 of the Karnataka Wakf Act, 1995 in file No. GBA/5/2008 in declaring the said land in Survey No. 218 as Wakf Property vide orders dated 04.07.2011. The petitioners in fact led evidence. However, on 02.12.2013 the case was set down for cross-examination of PW. 1, but on that day, PW. 1 could not able to appear before the Court, therefore, the application came to be dismissed for default vide order dated 02.12.2013. The petitioners filed an application under Order IX Rule 9 r/w. Section 141 of CPC for restoration of the said application and they also filed an application under Section 5 of the Limitation Act seeking condonation of delay in making such application for restoration of the original application. The said application filed under Order IX Rule 9 of CPC came to be dismissed by order dated 05.04.2014, which is impugned in this proceedings before this Court.
On a careful perusal of the order dated 05.04.2014 passed by the learned Presiding Officer, Wakf Tribunal in C. Misc. No. 1/2014, it is noticed that the said application was dismissed predominantly on the basis of technicalities. Firstly, the Court has observed that the provision of Order IX Rule 9 of CPC is not applicable, as such, the order of the Tribunal is final and the applicant has to file revision petition against the order of dismissal of the original application wide order 02.12.2013. Secondly, it is observed that the application filed under Order IX Rule 9 of CPC was not in proper form as the mandatory requirement under Section 141 of CPC was not followed. Thirdly, the Trial Court has observed that the explanation offered by the petitioners therein in explaining the delay in making the application was not supported by any materials. Therefore, the delay also taken as a serious aspect and on that ground also the application came to be dismissed.
On a careful perusal of the order, it is noticed that the learned trial Judge has referred the provision under sub-section (5) of Section 83 of the Wakf Act. For the purpose of further meaningful understanding, it is just and necessary to look into the said provision, which reads as follows:-
"83(5): The tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit or executing a decree or order."
This provision clearly empowers the Tribunal to exercise the powers as may be exercised by the Civil Court under Code of Civil Procedure while trying a suit or executing a decree or the order. The said provision clearly gives an impression that wherever the specific provisions are not provided under the special enactment for the purpose of following certain procedures, the Court has got its own power to adopt the procedures envisaged under the Code of Civil Procedure in order to adhere to the principles of natural justice. Therefore, it is not that certain particular provisions of Code of Civil Procedure are made applicable to the proceedings before the Wakf Tribunal, but it is the discretion vest with the Court to apply such provisions of Code of Civil Procedure wherever it is necessary for proper adjudication of the rights of the parties and by adhering the principles of natural justice, such procedures can be adopted by the Court. More over procedural aspects enunciated under the Code of Civil Procedure disclose that an enormous procedures have been laid down in order to strictly adhere to the principles of natural justice before passing any adverse order against a person. In that background, Section 83(5) of the Wakf Act, 1995 has to be understood by the Courts. Therefore, application Under Order IX Rule 9 CPC is very well maintainable.
Now coming to the other aspects, as held by the Trial Court, the provision of Order IX Rule 9 of CPC is not strictly applicable for restoration of the suits which are dismissed for non-prosecution or for default. But there is no specific provision provided under the Wakf Act on par with Order IX Rule 9 of CPC. But, there are certain rules framed under the Karnataka Wakf Rules 1997 which also creates a power to the party to the proceeding to make certain applications as and when necessary for interim reliefs. Rules 68 and 69 of the Wakf Rules provide for suits and appeals and Rule 69 refers to the form of application, plaint, appeal for interim orders. These two provisions clearly disclose that the suit or the application can also be filed before the Wakf Tribunal as and when necessary for several reliefs by the parties. Rule 69 specifically says that every application for interim relief in suit or other proceedings before the Tribunal shall be supported by an affidavit of facts relevant to the matter. Therefore, if Section 141 of CPC is not strictly adhered to while making application, that itself is not sufficient to throw out the application. As Rule 69 is an additional provision provided under the Wakf Rules, which contemplates filing of affidavit in support of the application and this Rule does not say that the application shall be in the format under Section 141 of CPC. Even otherwise, when Section 83(5) of the Wakf Act empowers Tribunal to exercise discretionary powers wherever required by application of the provisions of CPC, if there is any mistake in the application, the Court could have been directed to the parties to correct the mistake by exercising powers under Section 151 of CPC. Even otherwise it is a very well recognized principle of civil jurisprudence that if an application is made, even if the provisions are not properly quoted in the application or even wrong quoting of any provision, it may be directed to be corrected by the courts for the purpose of administrating real and substantial justice between the parties. The above said analysis goes to show that the Court should not stick on to the technicalities in order to curb substantial right to be exercised by the parties before the competent court of jurisdiction and the petition could not be snubbed at the initial stages if the party is agitating the matter for the substantial relief before the Court. In this background, it is worth to mention here a decision of the Apex Court though it is not applicable in straitjacket manner to the present proceedings, but same situation arose before the Hon''ble Apex Court in a case between Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, AIR 1974 SC 2105 : (1974) 2 SCC 706 : (1975) 2 SCR 71 , wherein the Apex Court while dealing with the applicability of provision under Section 141 of CPC has observed that,-
"........ The Object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. If the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated."
The broad principles laid down in the above said case, in my opinion, can be pressed into service. So far as this case is concerned, Order IX Rule 9 of CPC gives an opportunity to the party to approach the Trial Court to rectify or correct his mistake and seek an opportunity to proceed with the matter at the stage when the Court is not dealing with the merits of the case. When the party has got a substantial right to be agitated by placing all materials before the Court substantially and when such a main matter is agitated before the Court, on technical grounds the case should not have been dismissed and even without providing opportunity to correct his mistake, an application filed for restoration of the case, it should not have been dismissed on technical grounds. As I have already said, if the Court is of the opinion that the application was not in proper format, the Court could have directed the party to correct the mistake by exercising powers under Section 151 of CPC and by looking into the substance of the application, the Court could have administered real justice.
Last but not the least, delay in making application has not been accepted by the trial Court. It is the contention of the petitioner that he had a snake bite, therefore, he could not appear before the Court on the day which was fixed for his cross-examination. There was delay in filing the application for restoration. The order sheet produced before the Court by the learned counsel for the petitioner discloses that on 02.12.2013 when the case was set down for further evidence of the applicant, the applicant remained absent. The learned counsel for the petitioners appearing before the trial Court prayed time for production of PW. 1 for cross-examination. But, his plea was rejected and the application was dismissed for default.
It appears the petitioner could not able to meet his advocate immediately on the ground that he was suffering from snake bite, therefore, he filed delay application seeking condonation of delay of 60 days. In my opinion, in order to dismiss the application, the delay in making the application should be alarming in nature and which should be an unreasonable delay which in any stretch of imagination, even an ordinary prudent man could not have condoned the delay. In this case, cause for 60 days delay is explained by way of an affidavit by the petitioner stating that the petitioner has suffered snake bite and therefore, he could not appear before the Court and later filed the petition under Order IX Rule 9 CPC. The flimsy ground that the petitioner could not able to mention the name of the person from whom he has taken treatment was seriously taken into consideration by the trial Court to dismiss the application. In my opinion, such a stringent and narrow view should not have been taken by the Trial Court for dismissal of the application. For each and every treatment or for each and every ailment the people cannot give substantial evidence of treatment. It is quite natural that for snake bite, the people may go to an ordinary village Pandith for the purpose of taking treatment or he may rush to the hospital. One cannot expect a set of reaction from each and every one on each and every aspect. Therefore, it should be broadly viewed when the substantial rights are agitated before the Court. Hence, I am of the opinion that none of the grounds which are mentioned in the order impugned in this petition are tenable for sustaining the order passed by the trial Court. Hence the order is liable to be set aside. An opportunity should be given to the party to agitate the very substantial right before the Court. On these reasons, I proceed to pass the following order:-
ORDER
The petition is allowed. Consequently, the order passed by the Presiding Officer, Karnataka Wakf Tribunal, Gulbarga in C. Misc. No. 1/2014 dated 05.04.2014 is hereby set aside. The Original Application No. 2/2013 is restored on to the file of the Karnataka Wakf Tribunal with a direction to the Wakf Tribunal to provide an opportunity of hearing to both the parties and dispose of the case on merits.