016-SLLR-SLLR-2006-V-2-AMEEN-AND-OTHERS-vs.-MOHIDEEN-AND-OTHERS.pdf
CA
Ameen and Others vs Mohideen and Others
107
AMEEN AND OTHERSVSMOHIDEEN AND OTHERSCOURT OF APPEALEKANAYAKE, J.
SRISKANDARAJAH, J.
CA 1370/2002 (REV.)
WT/124/2000.
W. B. 3205/98.
W. B. 3449/99.
NOVEMBER 30TH, 2005.
Wakfs Tribunal – Leave to appeal application rejected – Direct appeal lies -Does Revision lie ? – Exceptional circumstances – Delay – Restitutio in integrum- Is it available ? – Can new parties be brought in a revision application?.
HELD:
It was decided earlier by the Court of Appeal that the impugned order isa final order. No appeal has been lodged against that order.
It is only a party to a contract or to legal proceedings who can ask for therelief of restitution in integrum.
There is no provision of law enabling third parties who were not partiesbefore the original Tribunal to be brought in a revision application.
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Special circumstances do not exist to warrant the intervention by way ofRevision. No satisfactory explanation has been submitted for the delayof 10 months.
APPLICATION in revision from an order of the Wakfs Tribunal.
Cases referred to:
Rustom vs Hapangama (1978-79-80) 1 Sri LR. 352 (SC)
Menchinahamy vs. Munaweera 52 NLR 409
Hemantha Situge for Respondent-appellant-petitioner-petitioners.
Riza Muzni for Petitioner-respondent-respondent.
Cur. adv. vult.
March 1,2006.
CHANDRA EKANAYAKE, J.By the amended petition dated 29.10.2003 1st to 6th Respondent-Appellant-Petitioner-Petitioners (hereinafter sometimes referred to as thePetitioners) had sought inter alia to act in revision and/or in restitutio inintegrum and to set aside the orders marked as P 13 made in case No.WT/24/2000 dated 27.10.2001 and order marked as P10 dated 20.08.2000made in WB/3449/99, for an order upholding the trust deed marked P1 toappoint trustees of the mosque in question namely : Abdeen JummaMosque at Cross Road, Borella, Colombo 8.
The basis of the amended petition is that one Abdul Cader Abdeenunder and by virtue of the Trust Deed bearing No. 3475 dated22.07.1947(P1) had founded and established the Abdeen Jumma Mosqueat Cross Road, Borella, Colombo 8 and said Abdeen functioned as itssole trustee during his lifetime on the directions of the High Priest of theMessenger Street, Thakkiya of Colombo 12. After the death of said Abdeen
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on 13.09.1958 and he being buried in the mosque premises and his graveyard being maintained by the members of his family it is contended thatas per the said Trust Deed the mosque was dedicated to the High Priestof Thakkiya and as its spiritual head His Holiness always had nominatedand appointed the trustee of the mosque and such nominations had alwaysbeen on the basis of the selection from the male descendants/familymembers of said Abdeen as provided in the said Trust Deed P1. Owing tothe absence of male descendants/male family members of Abdeen fromSri Lanka Mrs. Abdeen (widow of the deceased) with the approval andconsent of the male descendants who were living abroad had managedand run the affairs of the mosque. In or about the year 1994 due to certainproblems which had arisen with regard to the management andadminstration of the said mosque, application had been made to the WakfsBoard seeking relief under the provisions of the said Wakfs Act with regardto appointment of trustees. The two applications made to the Wakfs Boardwere assigned Nos. WB/3205/98 and WB/3449/99 respectively. Afterinquiring into the above applications Wakfs Board has pronounced itsorder dated 20.08.2000 (P10) and order of the Wakfs Tribunal dated27.10.2001 (P13) is the order made by the Tribunal after hearing the appealwhich had been preferred against the order marked P10.
After issuing notice on the aforesaid amended petition dated 29.10.2003as per order of this Court dated 08.10.2004 the Petitioner-respondent-Respondents (hereinafter sometimes referred to as the respondents) havestated that they would abide by the statement of objections already filed,dated 30.01.2003. By the said objections the Respondents whilstcontending that this revision application is misconceived in law had movedthat same be dismissed for the following main reasons amongst othersset out in paragraph 3 of the objections 1
1. the Petitioners have sought leave to appeal from this Court in CALA416/2001 and same having being refused on the ground that thePetitioners should have challenged the orders of the Wakfs Boarddated 20.08.2000 and Wakfs Tribunal dated 27.10.2001 by way of
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direct appeal and not by way of leave to appeal and whereas thepetitioners did not seek special leave to appeal to the SupremeCourt;
that no exceptional circumstances have been shown by thepetitioners;
as the impugned order of the Wakfs Tribunal is dated 27.10.2001there is unreasonable delay in making the present revisionapplication;
that the petitioners are not entitled to bring in new parties in thisapplication who were not parties before the Wakfs Board or WakfsTribunal.
It appears that the relief sought by sub paragraph (a) of the prayerto the amended petition is against the order of the Wakfs Tribunaldated 27.10.2001 and the order to the Wakfs Board dated 20.08.2000.Order made by the Tribunal dated 27.10.2001 is an order made in theappeal taken up before the Tribunal from the order of the Wakfs Board.The order of the Tribunal dated 27.10.2001 has been considered bythis Court in CALA 416/2001 and it has been so held that it is anorder having the effect of a final judgement and directly appealable tothis Court. Therefore the question that arises for consideration now iswhether the petitioners have succeeded in establishing the existenceof any exceptional circumstances that would warrant the invocationof the revisionary jurisdiction of this Court. On behalf of the petitionersit was strenuously urged that the trustee of the Abdeen Mosque shouldbe nominated by His Holiness the High Priest of the Messenger StreetThakkiya, Colombo 12, from and amongst the descendants/familymembers of the founder of the mosque namely, Abdul Cader Abdeenwho is now dead. However an examination of the said trust deed (P1)reveals that the mosque in question is not governed by the deed (P1)and what would necessarily flow from this is that the said mosque is
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governed by the provisions of the Muslim Mosques and CharitableTrusts or Wakfs Act (as amended). In my view the petitioners’contention with regard to this has to fail.
Further it has to be noted that the Petitioners have filed this petitionin this Court only on 06.08.2002 although the impugned order hadbeen made by the said Tribunal on 27.10.2001 – after a period ofabout 10 months. No satisfactory explanation has been submitted bythe present Petitioners for this long delay. On perusal of theapplications made to the Wakfs Board and the Tribunal it is revealedthat by the present amended petition dated 29.10.2003 some partieswho were not made parties before the Board and/or Tribunal are alreadymade petitioners in this application. It has to be stressed here thereis no provision of law enabling third parties who were not parties beforethe original Tribunal to be brought in here.
Next matter which needs consideration is when this Court hasalready decided in CALA 416/2001 that the impugned order of theWakfs Tribunal dated 27.10.2001 is an order directly appelable to thisCourt, no appeal has been preferred to this Court but present revisionapplication has been lodged to revise the aforesaid order. In this contextit would be pertinent to consider the decision in Rustom vsHapangama(,> where it was held to the following effect:
“The trend of authority clearly indicates that where the revisionarypowers of the Court of Appeal are invoked the practice has beenthat these powers will be exercised if there is an alternative remedyavailable, only if the existence of special circumstances are urgednecessitating the indulgence of this Court to exercise its powers inrevision”.
In the instant case too the petitioners have failed to establish thatany special circumstances exist which would warrant this Court to
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exercise its powers of revision, particularly since the Petitioners hadnot availed themselves of the right of appeal available to them.
The Petitioners have sought relief by way of Restitutio in integrumas well. This remedy being an extraordinary remedy it has to begiven only under very exceptional circumstances. Further it is only aparty to a contract or to any legal proceeding who can seek thisrelief. In the case of Menchinahamy vs Muniweerefz> it was held that-
“The remedy by way of restitutio in integrum is an extraordinaryremedy and is given only under very exceptional circumstances. Itis only a party to a contract or to a legal proceeding who can askfor this relief. The remedy must be sought for with utmostpromptitude. It is not available if the applicant has any other remedyopen to him.”
In the instant case some of the present petitioners have not beenparties to the proceedings before the Wakfs Board or the Tribunal.The present petitioners have not exercised utmost promptitude ininvoking the reliefs asked for and further it has to be noted that theremedy of direct appeal had not been availed of though available.Therefore in my view no relief could be granted to the applicants evenby way of restitutio in integrum.
For the foregoing reasons I conclude that this is not a fit instanceto have exercised the powers of revision of this Court. Accordinglythis application is hereby dismissed with costs fixed at Rs. 5,000.
SRISKANDARAJAH, J.- /agree.
Application dismissed.