Before filing suit mandatory provision for issuance of prior notice not complied.

This revision petition filed by the petitioner in Wakf O.P.No.22/2000 as against the fair and decretal order dated 26.4.2001 made in I.A.No.186/2000 in the said Wakf O.P. by the Court of the Principal Subordinate Judge, Nagapattinam, on certain grounds as broughtforth in the grounds of revision petition.

2. The application in I.A.No.186/2000 had been filed in Wakf O.P.No.22/2000 by the defendants 1 to 5 under Section 83(5) of the Wakf Act 1995 read with Order 7 Rule 11 C.P.C. for want of statutory notice under section 89 of the Wakf Act thereby praying to reject the Wakf O.P.No.22/2000.

3. The Court below i.e., the Court of Principal Subordinate Judge, Nagapattinam, in its order dated 26.4.2001 would not only trace the facts and circumstances of the case to the effect that on the part of the petitioners they would come forward to file this application on the grounds that the respondents have filed the main Wakf O.P.No.22/2000 seeking to cancel the nomination of the petitioners therein as co-trustees of the trust, the subject matter therein is that proper notice under Section 89 of the Tamil Nadu Wakf Act is mandatory without which there is no cause of action for such a petition to be filed and therefore seeking to reject the petition in Wakf O.P.No.22/2000 have filed I.A.No.186/2000.

4. On the part of the respondent in Interlocutory Application, who are the petitioner in the main Wakf O.P., he would come forward to allege that these petitioners/defendants have no locus-standi to challenge the validity of such non-compliance of the provision of law under Section 89 of The Tamil Nadu Wakf Act 1995. It is up to the Wakf Board to require such a notice and the petitioners have no locus-standi to raise such questions and moreover Section 89 is applicable only to the suits filed before the Civil Court and since the Tribunal is not a civil Court, the compliance of Section 89 is not warranted; that such notice is required only for the claim of title and hence would ultimately pray to dismiss the Interlocutory Application filed by the respondents herein.

5. The Lower Court having traced the facts and circumstances and the position of law as pleaded by the parties and framing necessary point for consideration viz. 'whether the Interlocutory Application filed by the defendants in the main Wakf O.P. was to be allowed?' and having regard to the materials placed on record and discussing the facts and law would ultimately allow the Interlocutory Application but without costs thereby rejecting Wakf O.P.22/2000. Testifying the validity of the same, the sole petitioner/plaintiff in Wakf O.P.22/2000 has come forward to file the above civil revision petition seeking to set aside the order dated 26.4.2001 passed by the Court of Principal Subordinate Judge, Nagapattinam, in the said matter and to restore the Wakf O.P.No.22/2000 to file.

6. During arguments, the learned counsel appearing on behalf of the petitioner cited Sections 63 and 64 of the Wakf act which are respectively concerned with 'the power of the Board to appoint mutawallis in certain cases in case of vacancy in the office of the Wakf' and 'removal of the Mutawalli by the Board from its office for reasons specified in Sub Sections (a) to (k) of Section 64(1)' and would further cite Section 64(4) wherein it is laid that 'in case a Mutawalli is aggrieved by order passed under any of the clauses (c) to (j) of Section 64(1) he may within one month from the date of receipt of the same, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final.'

7. Citing the above provisions of law and the contents of the same, the learned counsel would point out that it is a statutory appeal that is provided under section 64(4) by the enactments, the Wakf Act 1995, which is in pari-materia of Section 86 of the old Act and would cite a Judgement delivered in N.M. Palanimuthu Vs. The Commissioner HR & CE (Admn.) Dept. & others reported in 1999 T.N.L.J. Page