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Civil Revision No.44 of 1979, decided on 10th September, 1986.

‑‑‑ Waqf‑‑Appointment of Mutawalli‑‑Pre‑existence of waqf was a condition precedent for appointment of Mutawalli‑‑Petitioner challenging appointment of respondent as Mutawalli by District Judge‑‑Facts on record showing that twenty years before when first appointment of Mutewalli was made mosque was under construction and no waqf at that time was in existence‑‑Petitioner claiming that as a result of registration of a body of name and style of petitioner they became entitled to take over management and control of mosque in question‑ Such right of petitioner not established in appropriate proceedings before a competent Court of law‑‑Order of District Judge appointing respondent as a Mutwalli set aside to the extent it, held, appointment of respondent as valid and found that no justification or his removal existed and parties directed to follow legal course to establish their respective claims.

Zia Qureshi for Applicant.

Muhammad Sharif for Opponent.

Dates of hearing: 8th and 10th September, 1986.

This application under section 115 CPC is filed by the petitioner for setting aside the order of District Judge, Tharparkar at Mirpurkhas, dated 17‑10‑1978, whereby he rejected the application of the petitioner for removing the Mutawalli of mosque, known as Makki Masjid, Muhajir Colony, Mirpurkhas.

It is contended by the learned counsel for the petitioner that the order of appointment of Mutawalli of the aforesaid mosque is wholly without jurisdiction, therefore, the District Judge, should have accepted the prayer of the petitioner and set aside the appointment order of the respondent. In order to appreciate the contention of the learned counsel for the parties, it is necessary to state here the background of the present litigation.

On 19‑5‑1956, resident of New Muhajir Colony through Munawar Khan, Moulvi Barkat Ali, Jafer Ali and Abdul Rehman moved an application before the District Judge, stating that a mosque is being constructed in their Mohallah which was still incomplete and there being apprehension of mismanagement and misappropriation of the property of mosque. Mr. Abdul Latif Gandhi Advocate of Mirpurkhas, may be appointed as Mutawalli of mosque. This application was made over by the learned District Judge to Assistant Judge who by his order dated 4‑9‑1956 directed the parties to file the necessary documents so that mosque may be registered as Waqf property and thereafter a Mutawalli would be appointed in accordance with the Waqf Act. It is not clear from the record as to what steps were taken by the parties in pursuance of the order Assistant Judge dated 04‑09‑1956, but it is evident from the facts stated in the impugned order that a note was put up by the Office to the District Judge in which it was stated that Abdul Latif Gandhi is a busy advocate and therefore, in his place Mr. Abdul Jabbar be appointed as Mutawalli and he may be asked to get the mosque declared as Waqf property and get the same registered in record of rights. On this office note, the learned District Judge ordered that first Mr. Gandhi be consulted and if he declined Mr. Abdul Jabbar may be appointed as Mutawalli. It appears that in the first instance, Mr. Gandhi agreed to act as Mutawalli but later on he declined and accordingly on 24‑9‑1956, the District Judge appointed Mr. Abdul Jabbar as Mutawalli of the mosque. Mr. Abdul Jabbar as Mutawalli of mosque was also permitted to form an Administrative Committee consisting of several respectable persons to run the affairs of mosque. It appears that on 2‑10‑1956 again an application was made to the Court, for appointment of Mr. Gandhi as Mutawalli of mosque, but the District Judge filed the same in view of the earlier refusal of Mr. Gandhi to act as Mutawalli. After about three years again another application was made by Jamaluddin and 12 others for removal of Abdul Jabbar as Mutawalli of Mosque and putting the Administrative Committee incharge of the mosque. The District Judge on this application ordered issuance of notice to Abdul Jabbar and later on his request relieved him from the office of Mutawalli by order dated 2‑3‑1960. Simultaneously, the present respondent was appointed to act as Mutawalli until further orders. It is not disputed that the present respondent in pursuance of the order of the District Judge dated 2‑3‑1960 acted as Mutawalli of mosque uninterrupted until 1974, when on 4‑10‑1974, the petitioner submitted an application to the District Judge praying that the orders dated 2‑3‑1960 be recalled and the respondent be removed as Mutawalli and in his place the registered body (applicant) be appointed to manage the affair of mosque. On the above application of petitioner several orders were passed from time to time but ultimately, the learned District Judge by his order dated 17‑10‑1978, came to the conclusion that there was no justification for removal of respondent as Mutawalli of mosque.

The learned counsel for the petitioner contends that the order of the learned District Judge holding that no case for removal of respondent as Mutawalli is made out, is wholly illegal as the initial appointment of respondent as Mutawalli was itself without jurisdiction. The learned counsel for the respondents, on the other hand, contended that this Court in exercise of its jurisdiction under section 115, C.P.C. could not set aside an order which held the field for over two decades and nothing has been shown to justify interference with the said order. It is quite clear from the facts stated above that the original application for appointment of Mutawalli was made in the year 1956 although it is not shown that such an application was maintainable under any specific provision of law. The only argument in support of the appointment of Mutawalli advanced by the learned counsel for the respondent is that the District Judge being a 'Kazi' was entitled to appoint Mutawalli in respect of a 'Waqf' but this submission of learned counsel clearly overlooked the fact the pre‑existence of a 'Waqf' is a condition precedent for such appointment. It is quite clear from the facts stated above that at the time of first appointment of Mutawalli, the mosque was still under construction and no 'Waqf' as such was in existence. Nevertheless, the District Judge thought it fit to appoint some person alongwith an advisory committee to look after the affairs of mosque and this order held the field for above 2 decades. The petitioner claimed that as a result of registration of a body under the name and style of petitioner, they have become entitled to take over the management and control of mosque. This question could not be decided by the learned District Judge in the summary proceedings by way of Misc. application. If such right was claimed before the District Judge, the only proper course open to him in these circumstances was to direct the parties to get the rights established in appropriate proceedings before a competent Court of law and should have refrained from making any observation with regard to appointment or removal of Mutwalli which could prejudice future course of proceedings. The learned District Judge however, while rejecting the application of petitioner, not only made observation which tends to show that he found the appointment of respondent as valid but he also held that no case for removal of Mutawalli was made out. These observations of learned District Judge no doubt have the effect of prejudging the future course of proceedings while the parties may choose to follow to establish their rival claims.

In these circumstances, I accept the revision application partially and set aside the order of the District Judge to the extent, it held' the appointment of respondent as valid and found that no justification for his removal existed. However, as the order appointing Mutawalli on a Misc. application held the field for about two decades it is only appropriate that the parties be left free to follow such legal course as may be available to them to establish their respective claims. There will be no order as to costs.

M . Y . H . / M‑104/ K Revision partly accepted.

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