Gauhati High Court
CRP/221/2016 on 22 July, 2025
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GAHC010114562016
2025:GAU-AS:9355
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Civil Revision Petition No. 221/2016
1. Anowaruddin Wakf Estate,
A Wakf Registered With the Assam Board of
Wakf, Rep. By Its Mutawalli Syed College
Road, Anowarpur, Bhangagarh, P.S.
Bhangagarh, P.O. Dispur, Ghy-5, Dist-Kamrup
Metro, Assam.
Petitioner
-Versus-
1. Sri Bipin Dey and 6 Ors.
S/o Late Janju Dey,
R/o Siliguri, North Bengal,
Pin-734004.
2. Md. Arifur Rahman,
S/o A. Rahman,
R/O Rangia,
Mauza-Panduri,
Dist-Kamrup, Assam, Presently R/O Srimantapur,
H/No. 3 Beside L.P. School Bhangagarh Ghy-32, Dist-
Kamrup Metro, Assam.
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3. Md. Abdul Matlib,
S/o Azad Ali,
R/O BaihataChariali,
Mauza-Silasendurighopa, Pin-781381,
Dist-Kamrup, Assam.
4. Rajendra Kumar Kalita,
S/o Late Chana Ram Kalita,
Resident of Purnakamdev, Momitola, Pin-781350,
Dist-Nalbari, Assam.
5. Md. Amir Shah,
S/o Late Isar Ali,
Resident of Haligaon, Palasbari, District-
Kamrup(Assam), Pin-781122.
6. The Assam Board of Wakf Represented By its Chief
Executive Officer, Seuji Path, Hatigaon Road, Guwahati-
781038, District- Kamrup(Assam).
7. Khagen Chandra Kachari,
S/o Late Bipin Kachari,
Resident of Lachitnagar, Bye Lane-5,
Opp. Gaurav Deep Building Guwahati-7,
District- Kamrup, Assam.
Respondents
For Petitioner : Mr. A. Das, Advocate.
For Respondent(s) : Ms. S. Nazneen, Advocate.
Date of Judgment : 22.07.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGEMENT AND ORDER(CAV)
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1. Heard Mr. A. Das, the learned counsel for the petitioner. Also
heard Ms. S. Nazneen, the learned counsel for the respondent
No. 2.
2. By order dated 02.04.2025, this Court has decided to proceed
with the hearing of this case in the absence of other
respondents as even after due service of notice against them,
they were absent without any steps.
3. This civil revision petition has been registered on filing of an
application under Article 227 of the Constitution of India by
the petitioner, namely, Anowaruddin Wakf Estate impugning
two orders passed by the learned Presiding Officer Wakf
Tribunal, Kamrup (Metro).
4. Firstly, the order dated 18.04.2016 passed in W.T. Misc.(J)
Case No. 4 of 2015 arising out of W.T. Case No. 1/2009,
whereby the application filed by the present petitioner under
Order 1 Rule 10 of the Code of Civil Procedure, 1908 to
implead the Punjab National Bank as a party in the case was
rejected.
5. Secondly, the order dated 13.06.2016 passed by the learned
Presiding Officer, Wakf Tribunal, Kamrup(Metro), Guwahati on
the petition No. 319/2016 dated 16.05.2016 arising out of WT
Case No. 1/2009, whereby, the application filed by the
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defendant Nos. 2, 3 and 4 under Order 18 Rule 17, read with
Section 151 of the Code of Civil Procedure, 1908 for recalling
of the PW-2, namely, Sri Khagen Chandra Kachari was
allowed.
6. It is pertinent to mention herein that after filing of the instant
Civil Revision Petition, the petitioner had filed another Civil
Revision Petition under Article 227 of the Constitution of India
which was registered as CRP No.230/2017, wherein the
petitioner has again impugned the order dated 18.04.2016
passed in W.T. Misc.(J) Case No. 4 of 2015 arising out of W.T.
Case No. 1/2009 passed by learned Presiding Officer, Wakf
Tribunal. Though, it appears that the order dated 18.04.2016
has already been impugned by the petitioner in CRP No.
221/2016(instant revision petition), however, as more than
one order was impugned in the instant CRP No.221/2016,
hence, the petitioner had filed a subsequent Civil Revision No.
230/2017.
7. Though, as per Rule 20 (2) of Civil Court Rules and Orders of
the Gauhati High Court, applications in regard to distinct
subject-matter shall have to be made in separate petitions and
as per Rule 20 (3) of the said rules, the petition should not
ordinarily contain more than one prayer or one series of
alternative prayers of same kind, however, as both the order
dated 18.04.2016 as well as 13.06.2016 have been impugned
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in this revision petition(CRP No. 221/2016), this Court
proposes to consider the grievance of the petitioner in respect
of both the impugned orders in the instant Civil Revision
Petition only for the sake of convenience.
8. The facts relevant for consideration of the instant Civil
Revision Petition, in brief, are that the petitioner, namely,
Anowaruddin Wakf Estate as plaintiff had filed a Title Suit No.
190/2004 which was re-numbered as W.T. Case No. 1/2009
which is pending before the learned Presiding Officer, Wakf
Tribunal, Kamrup (Metro) at Guwahati. In the suit, the
petitioner has claimed the relief of declaration of its right, title
and interest over the suit land as well as for grant of
injunction against the defendants.
9. In the main case, the petitioner had also filed an application
under Order 39 Rules 1 and 2 of the Code of Civil Procedure,
1908 for grant of temporary injunction. The said application
was registered as W.T. (Misc.) Case No. 1/2009. In the said
Misc. Case, by Order dated 06.09.2010, the opposite parties
were directed to maintain status quo in respect of the suit
property till disposal of the main suit, i.e. W.T. Case No.
1/2009.
10. Let us first consider the impugned order dated 18.04.2016
passed in W.T. Misc.(J)Case No. 4 of 2015 in W.T. Misc. Case
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No. 1/2009. On 27.05.2015, the petitioner had filed an
application under Order 1 Rule 10 of the Code of Civil
Procedure, 1908 in W.T. Misc.(J) Case No. 4 of 2015 in
connection with W.T. Case No. 1/2009 for impleadment of
Punjab National Bank as a defendant in the W.T. Case No.
1/2009.
11. It has been stated by the petitioner in the aforesaid
application that on 13.12.2014, when the petitioner had visited
the suit land he found that the Punjab National Bank has
affixed a sign board upon the suit land indicating that they
have taken symbolic possession of the suit land. Upon inquiry,
the petitioner came to know that the defendant No. 2 (Md.
Arifur Rahman) had mortgaged a part of Schedule-„A‟ land
with Punjab National Bank against a loan taken by his brother
Fidusur Rahman proprietor of M/s. NAFNE Industries.
12. The petitioner has stated in his petition that the Punjab
National Bank, in spite of knowing about the order dated
06.09.2010 passed by the learned Presiding Officer, Wakf
Tribunal in W.T. Misc. Case No. 1/2009, whereby the parties
were directed to maintain status quo, has illegally mortgaged
the said land by violating the status quo order. It was also
pleaded by the petitioner in the petition that the bank has also
published an e-auction Sale Notice in the newspaper in respect
of the suit land. In the aforesaid premises the petitioner has
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prayed for impleading the Punjab National Bank as one of the
defendants. However, by the impugned order dated
18.04.2016 passed in W.T. Misc.(J) Case No. 4 of 2015 in W.T.
Case No. 1/2009, the learned Presiding Officer, Wakf Tribunal
Kamrup (Metro), Guwahati had rejected the prayer for
impleadment of Punjab National Bank as one of the
defendants in W.T. Case No. 1/2009.
13. The learned counsel for the petitioner has submitted that the
petitioner had filed the W.T. Case No. 1/2009 for declaration
of its right, title and interest over Schedule-„A‟ plot of land and
also for cancellation of sale deed Nos. 2076 dated 27.04.1993,
2077 dated 27.04.1993 and 2078 dated 24.04.1993.
14. The learned counsel for the petitioner has submitted that on
the basis of sale deed No. 2076 dated 27.04.1993, the
defendant No. 2 had mortgaged the plot of land measuring
1katha 10lechas to the Punjab National Bank and had
obtained some loan against the said mortgage. However, on
failure of the defendant to repay the said loan, the Punjab
National Bank by exercising its powers under SARFAESI Act,
2002 had taken the possession of the mortgaged land.
15. The learned counsel for the petitioner has submitted that the
aforesaid land was mortgaged to the Punjab National Bank by
the defendant No. 2 on 12.12.2014. Whereas, on 06.09.2010,
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the learned Presiding Officer, of the Wakf of Tribunal
Kamrup(Metro) Guwahati had directed the parties to maintain
status quo as regards to the suit property by passing the order
in W.T.(Misc.) Case No. 1/2009.
16. The learned counsel for the petitioner has submitted that the
presence of the Punjab National Bank is very much essential
for deciding the dispute in W.T. Case No. 1/2009. He further
submits that unless the bank is impleaded as one of the
parties in the aforesaid case, the petitioner may not be able to
seek any relief against the bank which has claimed to be in
possession of part of Scheduled- „A‟ land.
17. The learned counsel for the petitioner has submitted that
mortgage of a portion of Scheduled-„A‟ land to the bank in
spite of the status quo order dated 06.09.2009 passed in W.T.
Case No. 1/2009 is illegal mortgage, therefore, it is required to
seek a relief against the Punjab National Bank also in the said
case.
18. The learned counsel for the petitioner has also submitted that
to avoid multiplicity of the proceeding, the Punjab National
Bank is required to be impleaded as a defendant in W.T. Case
No. 1/2009.
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19. In support of his submissions, the learned counsel for the
petitioner has cited the ruling of Apex Court in the case of
“Ramesh Hirachand Kundanmal vs. Municipal Corporation of
Greater Bombay” reported in “(1992)2 SCC 524.” He has also
cited the ruling of this Court in the case of “Indian Oil
Corporation Limited vs. Amit Choudhary and others” reported in
“(2006) 3 GLT 193.”
20. On the other hand, the learned counsel for the respondent No.
2 has submitted that the Wakf Tribunal has rightly rejected
the prayer for impleadment of Punjab National Bank as one of
the defendants in W.T. Case No. 1/2009 as the Punjab
National Bank is not a necessary party in the said case. The
learned counsel for the respondent No. 2 has submitted that
the Punjab National Bank is neither a necessary party nor a
proper party in the said case and it only had commercial
interest in the suit property.
21. The learned counsel for the respondent No. 2 has submitted
that even in the absence of Punjab National Bank, an effective
decree may be passed in W.T. Case No. 1/2009, therefore, the
Punjab National Bank is not a proper party.
22. The learned counsel for the respondent No. 2 has also
submitted that the petitioner has filed a case against the
respondent as well as Punjab National Bank before the Debt
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Recovery Tribunal (DRT) under the SARFAESI Act, 2002 and
therefore, the Wakf Tribunal has rightly rejected the prayer for
impleadment of Punjab National Bank.
23. In support of her submissions, the learned counsel for the
respondent No. 2 has cited a ruling of the Apex Court in the
Case of “Vidur Impex And Traders Private Limited And Others
vs. Tosh Apartments Private Limited And Others” reported in
“(2012) 8 SCC 384” as well as in the case of “Razia Begum v.
Sahebzadi Anwara Begum & Others” reported in “AIR 1958 SC
886.”
24. By the second impugned order dated 13.06.2016, the
application filed by the defendant under Order 18 Rule 17 read
with Section 151 of the Code of Civil Procedure, 1908 for
recalling the PW-2 for the purpose of cross-examination was
allowed by the Wakf Tribunal. The learned counsel for the
petitioner has submitted that the Wakf Tribunal by the
impugned order dated 13.06.2016 has exercised powers
beyond jurisdiction and beyond the provisions of Order 18
Rule 17 of the Code of Civil Procedure, 1908. It is submitted
that there is no provision in the Indian Evidence Act, 1872 as
well as in the Code of Civil Procedure, 1908 for recalling a
witness only for the purpose of recross-examination.
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25. He submits that the power of the Court may not be exercised
to facilitate one of the parties to fill up the lacuna in the
evidence which has already been recorded. It is also
submitted by the learned counsel for the petitioner that unless
there is an ambiguity in the evidence, the question of
clarifying the said ambiguity does not arise by invoking the
powers under Order 18 Rule 17 of the Code of Civil Procedure,
1908.
26. In support of his submission, the learned counsel for the
petitioner has cited a ruling of the Apex Court in the case of
“Vadiraj Nagappa Vernekar v. Sharadchandra Prabhakar
Gogate” reported in “(2009)4SCC 410” as well as the ruling of
this Court in the case of “Jhanwarlal Patwa v. Uday Narain
Goswami and Anr.” reported in “(2006) 3 GLT 458”.
27. On the other hand, the learned counsel for respondent No. 2
has submitted that the Wakf Tribunal, by the impugned order
dated 13.06.2016, has rightly allowed the defendants to recall
the PW-2 for the purpose of limited cross-examination as it
would only clarify the evidence on record.
28. The learned counsel for the respondent No. 2 submits that the
purpose of recalling PW-2 is only to clarify the credibility and
genuineness and authenticity of Exhibit-13 which is purported
to be a sale deed executed between Bipin Kachari and Moulvi
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Anowaruddin as no mention about the said sale deed is there
in the pleadings. Neither the mention about said sale deed
was there in the list of documents which is required to be filed
under Order 13 Rule 1 of the of the Code of Civil Procedure,
1908.
29. The learned counsel for respondent No. 2 has also submitted
that apart from Order 18 Rule 17 of the Code of Civil
Procedure, 1908 the Defendant had also filed the said
application under Section 151 of the Code of Civil Procedure,
1908 which contains the inherent power of the Court to make
such order as may be necessary for the ends of justice.
Hence, she submits that the Wakf Tribunal has rightly allowed
the recalling of PW-2 for the purpose of cross examination.
30. I have considered the submissions made by the learned
counsel for both sides and have gone through the materials on
record. I have also gone through the rulings cited by learned
counsel for both sides in support of their respective
submissions.
31. Under Order 1 Rule 10 (2) of the Code of Civil Procedure,
1908, the Court may at any stage of the proceeding direct any
person who ought to have been joined as the party either as
plaintiff or defendant if his presence before the Court may be
necessary in order to enable the Court to effectually and
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completely adjudicate upon and settle all the questions
involved in the suit.
32. In the instant case, there is no dispute that during the
pendency of the suit, a portion of the Schedule-„A‟ land was
mortgaged by the respondent No. 2 to the Punjab National
Bank. Moreover, same was done during the subsistence of a
status quo order dated 06.09.2010 passed in W.T.(Misc.) Case
No. 1/2009. Therefore, apparently there appears to be a
violation of the doctrine of “lis pendens” as enshrined in
Section 52 of the Transfer of Property Act, 1882. There
appears to be the violation of status quo order passed by the
Wakf Tribunal also.
33. If we peruse the impugned order dated 18.04.2016, it appears
that the Wakf Tribunal had rejected the prayer for
impleadment of Punjab National Bank merely on two counts.
Firstly, that in spite of having knowledge of the pendency of
the W.T. Case No. 1/2009, the Punjab National Bank did not
appear in the said case. Secondly, that the plaintiff had
already filed an application before Debt Recovery Tribunal
(DRT) under the SARFAESI Act, 2002 against Punjab National
Bank. One of the principles to decide as to whether a party is
necessary party or not is that in absence of such a party no
effect decree can be passed in the suit. In the instant case,
the relief is sought for by the petitioner in W.T. Case No.
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1/2009 in respect of the Schedule-„A‟ land and admittedly a
portion of the said land has been mortgaged during the
pendency of the aforesaid case, by the respondent No. 2 to
the Punjab National Bank. It also appears that the said bank
has also taken symbolic possession over the said land and has
also initiated e-auction process. Under such circumstances,
this Court is of considered opinion that Punjab National Bank
appears to be proper party in the W.T. Case No. 1/2009. The
reasons cited by the Wakf Tribunal in the impugned order for
rejecting the prayer for impleadment does not appear to be
good reasons as apparently, if the Punjab National Bank
proceed with the auction and alienate a portion of Schedule-„A‟
land, no effective decree may be passed in the W.T. Case No.
1/2009.
34. Accordingly, the impugned order dated 18.04.2016 passed in
W.T. Misc.(J) Case No. 4 of 2015 in connection with W.T. Case
No. 1/2009 is hereby set aside and reversed. The petitioner is
allowed to implead Punjab National Bank as one of the
defendants in W.T. Case No. 1/2009.
35. As regards the impugned order dated 13.06.2016, it appears
that the Wakf Tribunal had allowed the prayer for recalling of
the PW-2 for the purpose of cross-examination on the ground
that the application for recalling the witness for the purpose of
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cross-examination was made immediately after the cross-
examination and the Wakf of Tribunal was of the opinion that
if the plaintiff is not given chance of cross-examination on
limited point it would amount to denial of justice. It has also
been observed in the impugned order that the truth should
always be discovered before the Court and that can be done
by way of cross-examination under the facts and circumstance
of the present case. It also appears that the cross-examination
has been allowed only on a limited point as regards the sale
deed which has been exhibited as the Exhibit -13 by the PW-2.
36. It also appears that while allowing the recalling of the PW-2,
the Wakf Tribunal also directed the expenses to be borne by
the defendant side. Though, there is no dispute that the
powers under Order 18 Rule 17 of the Code of Civil Procedure,
1908 may not be invoked to facilitate a party to fill up the
lacuna in the evidence which has already been recorded,
however, in the instant case, while allowing the application for
recalling of the PW-2, the Wakf Tribunal has cited valid
reasons for doing so. It appears that the Wakf Tribunal has
exercised its discretion in allowing the recalling of PW-2 for
the purpose of limited cross-examination for the ends of
justice.
37. It is well settled that this Court, in exercise of the power of
superintendence under Article 227 of the Constitution of India,
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can interfere when there has been a patent perversity in the
order of the Tribunal or where there has been gross and
manifest failure of justice or basic principles of natural justice
have been flouted. However, this does not appear to be the
case in the instant case. In the instant case, the Tribunal felt it
necessary to exercise its discretion in allowing the application
for recalling of PW-2 to get more clarification about the sale
deed executed by Bipin Kachari and Moulvi Anowaruddin.
38. This Court is of considered opinion that merely because
another view may be taken by this Court than from what has
been taken by the Tribunal, the powers under Article 227 may
not be invoked to set aside the impugned order if it is not
otherwise perverse and it has not caused gross and manifest
failure of justice.
39. In view of the discussions made in the foregoing paragraphs,
the impugned order dated 13.06.2016 is not interfered with
and same is upheld.
40. This Civil Revision Petition is partly allowed and accordingly
disposed of.
41. Send the records which were requisitioned in connection with
this case back to the Wakf Tribunal, Kamrup (Metro),
Guwahati, along with a copy of this judgment.
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JUDGE
Comparing Assistant
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