The Waqf Board is a necessary party in a suit or proceeding relating to waqf or waqf property and that the learned Court below ought to have issued a notice upon the Board before proceeding with the appellant's Section 9 application.

Sahidullah Munshi, J.

This appeal has been filed by the appellant who was petitioner before the learned Court below in Misc. Case No. 422/15 (R-667/15). The said Misc. Case arose out of an application under Section 9 of the Arbitration and Conciliation Act, 1996, hereinafter to be referred as the said Act of 1996, praying for interim relief by way of an order of temporary injunction till the disposal of the suit against the respondent from making addition or alterations and/or from changing the nature and character of the suit property and from transferring and/or parting with possession of the suit property described in the Schedule mentioned in the said application under Section 9 of the said Act of 1996 and also from creating any third party interest by making any clandestine deal. In the said Misc. Case the respondents herein entered appearance and filed written objection.

2. By the order impugned being Order No. 3 dated 2nd January, 2016 the learned Court below, after a contested hearing, rejected the appellant's application under Section 9 of the said Act of 1996.

3. In the appeal the appellant has filed an application for injunction and/or appropriate orders. The respondents entered appearance and contested the matter. In course of hearing parties agreed for hearing and disposal of the appeal along with the application for injunction. Accordingly, the appeal and injunction application were taken up together for hearing. Parties agreed to file their respective written notes of submissions and so filed by them have been taken on record.

4. In rejecting the appellant's application under Section 9 of the aforesaid Act of 1996 the learned Court below has held that the appellant executed a Memorandum of Understanding, in short, MOU with the respondent for construction of some buildings including a Mosque jointly with the respondent and such MOU can be termed to be a Partnership Deed where both of them as partners could share their profit and loss equally. The respondent has admitted that the appellant spent some money for construction of the Mosque. The respondent has, however, denied the genuineness of some of the vouchers submitted by the appellant in support of his claim for expenditure of more than Rs. 25,00,000/- (Rupees Twenty Five Lakh) only. Learned Court below observed that the contentions raised by the appellant regarding violation of the terms of the MOU and/or recession of the arbitration agreement unilaterally, all these would be decided by an Arbitrator particularly when it appeared that the respondent had already requested the petitioner to submit accounts and statement of expenditure so that the same could be settled and, therefore, the prayer of the appellant for passing an order of injunction restraining the respondent from handing over the property to the mutawalli would not be passed because such order would directly affect the mutawalli of a waqf estate, who is not a party in the Misc. Case. According to the learned Court below, no order of injunction could be passed upon any third party nor can any such order be passed which may, ultimately, affect a third party. Learned Court below held that the petitioner would at best claim for damages from the respondent for his alleged violation of terms and conditions of the MOU dated 7th December, 2013. Upon going through the written objection filed by the respondent in the said Misc. Case pending before the learned Court below it appears that among other grounds for rejection of the appellant's Section 9 application the respondent urged in paragraph 6 that the Board of Waqf is a necessary party to the proceeding and further that the petition under Section 9 is not maintainable in view of the bar created under Section 85 of the Waqf Act, 1995 and in continuation of such statements in paragraph 16 of the said written objection it was reiterated that the learned Court below had no jurisdiction to try the proceeding.

5. However, on perusal of the order impugned