Wakf | Judgment Debtor Can't Be Allowed To Take Undue Advantage By Invoking Plea Of Lack Of Jurisdiction At Execution Stage: Supreme Court

After a prolonged litigation, the Supreme Court, in a noteworthy judgment, finally granted relief to the owner of a suit property (Mumtaz Yarud Dowla Wakf) in favour of whom the decree was already granted back in 2002.

In a judgment authored by Justice M. M. Sundresh, it called out the dilatory tactics adopted by respondents while setting aside the impugned order and restoring the order passed by the executing court in favour of appellant/ suit property owner.

At the beginning of the judgment, the Court highlighted this unfortunate situation by citing Hon’ble Sir James Colvilbe in General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing, 1872 SCC OnLine PC 16:

“These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree…”

In the instant case, the appellant being the undisputed owner of the suit property executed a registered lease deed in favour of respondent no. 2. for a period of 33 years. After the expiry of the lease, the appellant issued a legal notice requiring respondent no. 2 to hand over the vacant possession. However, after receiving several different responses to the notice, appellant promptly filed a suit before the Wakf Tribunal seeking a decree for ejectment and recovery of possession. A decree was passed at last on 13.11.2002. Failing to get the possession of the property, appellant had to file an execution petition on 18.10.2014. It is imperative to mention that till this stage respondent no. 2 did not raise the plea of maintainability of the suit.

However, after four years an additional counter was filed raising the plea that the suit as laid and decreed ought not to have been entertained. The same came to be dismissed by the executing court however, on a revision, the High Court of Telangana reversed the decision by placing reliance upon the decision of this Court in Ramesh Gobindram (Dead) through LRs. v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726.

Significantly, in the matter at hand, the Court noted that in Rashid Wali Beg v. Farid Pindari and Others, (2022) 4 SCC 414, while taking note of decision rendered in Ramesh Gobindram it was held that that after the amendment made by the Wakf (Amendment) Act, 2013, the basis of the said decision (Ramesh Gobindram) is correctly removed. It was further held that there are sufficient provisions even otherwise to maintain a suit for eviction over a Wakf property. Basis this, the Top Court, in the present case, held:

“On a proper analysis of the said decision, we have no hesitation in holding that the Wakf Tribunal has got sufficient jurisdiction to try every suit pertaining to either a Wakf or a Wakf property, notwithstanding the nature of relief concerned, except as mandated under the statute.,” held by Justices M. M. Sundresh and Prashant Kumar Mishra.

Findings of the Court

Before dwelling into the merits of this case, the Court examined the issues of law governing the submissions made.

Executing Court Cannot Go Beyond the Decree

The Court observed that the legal principle of an Executing Court cannot go beyond the decree stands fortified, subject to the rigor of Section 47 read with Order XXI (Execution of Decrees and Orders) of the Code of Civil Procedure, 1908. Section 47 deals with the power of court executing decree. It was stated that as a matter of course, an Executing Court is enjoined with the duty to give effect to the decree. Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception.

“…a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction. One has to see the consequence while taking note of the huge pendency of the cases before various Courts in the country. There is no gainsaying that but for the adverse decree suffered, a judgment-debtor would not have ventured to raise such a plea. It is clearly a case of an afterthought to suit his convenience. He cannot be allowed to approbate and reprobate.,” the Court added.

To support these observations, the Court relied upon the decision in Union of India and Others v. N. Murugesan and Others, (2022) 2 SCC 25, wherein it was clearly held “Approbate and reprobate These phrases are borrowed from the Scots law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold.”

Change of Forum

Subsequently, explaining the issue of retrospective application and change of forum, the Court stated that when a statute is amended on an issue pertaining to a forum for adjudication, it being procedural takes effect retrospectively. Further, a party to a lis does not have any vested right of forum as against action.

Court Must Satisfy Itself As To The Existence Of Jurisdiction

Referring to section 9 (Courts to try all civil suits unless barred) of the Code, the Court opined that it is clear that the court has to prima facie satisfy itself as to the existence of the jurisdiction. Such an exercise will avoid putting the parties to unnecessary risk and difficulty (Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma, (1997) 5 SCC 460).

Elaborating further upon it, it was stated that Court has to apply the principle of nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong) in order to prevent any miscarriage of justice. When the court is satisfied that one party to the dispute is manipulating the process to perpetuate illegality and to the detriment of the other, it should go beyond the procedural entrapment by rendering correct justice. (Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342)

No One Shall Be Prejudiced By An Act Of Court

It was also highlighted that if Courts fail to undertake the above exercise the same would draw the legal maxim “actus curiae neminem gravabit’ (no one shall be prejudiced by an act of Court). As a consequence, in a case where a Court has failed to check its jurisdiction and a plea has been raised subsequently and that too after receiving an adverse verdict, the forum shall not be declared as the one having lack of jurisdiction, especially when there is no apparent injury otherwise to the rights conferred under a particular statute. (Indore Development Authority v. Manoharlal and Others, (2020) 8 SCC 129)

After penning down these observations, the Court stated that as per the amendment by way of the Act of 2013, the jurisdiction now lies with the Wakf Tribunal.

Adverting to the facts of the case, the Court noted that “Respondent no(s). 1 and 2 have continuously put spokes on the wheels of justice as protracted proceedings have helped them to be in possession for over two decades, notwithstanding the expiry of the lease way back in the year 1999.”

Further, the Court held that the Amendment Act is certainly a procedural amendment and therefore, has to be applied retrospectively in the context of change of forum and jurisdictional provisions and thus set aside the impugned order while restoring the one passed by the Executing Court in favour of the appellant.

Senior advocates Abhishek Manu Singhvi and Shri Huzefa Ahmad appeared for appellants. Advocate K. Parameshwar, appeared for respondent no. 8, the Wakf Board and Senior Advocate Shyam Divan, appeared for the contesting respondents.

Case Title: MUMTAZ YARUD DOWLA WAKF V. M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.

Citation : 2023 LiveLaw (SC) 920

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