J.N. Hore, J.@mdashThis appeal is directed against judgment and decree passed by the learned Additional District Judge, 1st Court at Howrah
in,Title appeal No. 5 of 1981 affirming those of the learned Munsif, 4th Court at Howrah in Title Suit No. 183 of 1979.
2. The plaintiff-respondent instituted the said Title Suit against the defendant-appellant for declaration and permanent and mandatory injunction.
Plaintiff''s case is that he is the Mutwali of the Wakf Estate under which the defendant is a monthly tenant in respect of the disputed premises
comprising eight rooms from 1960. The tenancy was for residential purpose only. The rate of rent was originally Rs. 10/- per month, which was
subsequently enhanced to Rs. 30/- per month by a solenama decree which also empowered the defendant to sublet. The rent was further
enhanced to Rs. 50/-. The defendant tried to convert the suit premises into a factory from April 1979, without taking written consent of the
plaintiff. The plaintiff opposed the illegal act of the defendant and filed objection to the Howrah Municipality against the trade licence and filed the
suit for declaration that the defendant had no right to convert the tenancy for residential purpose into a tenancy for manufacturing purpose without
written consent of the plaintiff and permanent injunction restraining the defendant from doing such conversion, from making any addition or
alteration or construction in any way and mandatory injunction directing the defendant to remove such illegal construction.
3. The defendant contested the suit by filing a written statement in which it was pleaded inter alia that the tenancy was both for the residential as
well as factory purposes for which the rate of rent was enhanced from Rs. 30/- to Rs. 501-. The plaintiff gave consent to supply of 440 volt
current for factory purpose and signed in the Form of application to the Calcutta Electric Supply Corporation. It was further contended that in the
absence of notice u/s. 70 of the West Bengal Wakf Act the suit was not maintainable.
4. Upon the consideration of the materials on record, the learned Munsiff has held that the tenancy was for residential purpose only. Regarding
notice u/s. 70 of the Wakf Act, the learned Munsiff has held that under sub- section (4) of section 70 the decree passed in the suit shall be
declared void only if the Commissioner within one month of his knowledge of such suit applies to the Court in this behalf. According to the learned
Munsiff the suit has been filed for the interest of Wakf Estate for injunction against an illegal act and the Commissioner was not expected to allow
the defendant to do such illegal act. At any rate, the plaintiff has taken a risk by not, giving a notice, to Wakf Commissioner and in such
circumstances non-service of notice -was not fatal to this suit. The learned Munsiff has, therefore, passed a decree in favour of the plaintiff as
asked for.
5. The findings of the learned Munsiff were upheld by the Lower Appellant Court, and the appeal was dismissed. Being aggrieved, the defendant
has preferred this second appeal.
6. The only point that has been urged by Mr. Mukherjee, learned Advocate for the appellant, is that notice u/s 70(1) of the Wakf Act is mandatory
and in the absence of such notice the impugned decree is liable to be set aside. Section 70(1) provides that the Commissioner shall be notified of
the suit in respect of any Wakf property. In the case of the The Commissioner of Wakfs Vs. Sm. Ayesa Bibi and Others, it has been held that a
notice u/s 70 is mandatory unless the Commissioner is a party defendant in the suit. The effect of non-service of any decree or order passed in the
suit or proceeding shall be declared void if the Commissioner within one month of his coining, to know of such suit or proceeding applies to the
Court, in this behalf. It is clear, therefore, that the decree is not void ad initio but voidable at the instance of the Commissioner if he files an
application within one month from the date of his knowledge of the suit. Notice u/s 70(1) was not sent to the Commissioner either in the suitor in
the first appeal Notice of the second appeal was however, issued to the Commissioner and the Commissioner has not challenged the decree
passed by the trial Court and affirmed by the lower appellant, Court within one month of service of notice. The Commissioner has, on the other
hand, supported the decree passed by the trial Court in favour of the plaintiff. In these circumstance, the decree as passed by the trial court and
affirmed by the first Appellate Court should be allowed to stand. In Muzafar Ahmed Vs. Indra Kumar Das and Others, the decree was allowed to
stand under similar circumstances. In that case, the Commissioner was sent a notice but was not made a party. The suit was dismissed. In the
appeal that followed, the Commissioner was not made a party and no notice of appeal was served on him. The appeal was allowed. In the second
appeal, a ground was taken that the appeal below was incompetent as there was no notice to the Commissioner. Notice of the second appeal was,
however, issued to the, Commissioner the decree was held to be not void but voidable and as the Commissioner had not applied within a month,
the decree was allowed to stand. In the instant case the Commissioner had also supported the decree passed in favour of the plaintiff. In The
Commissioner of Wakfs Vs. Sm. Ayesa Bibi and Others, the Supreme Court has held that notice u/s 70(1) to the Commissioner of Wakf can be
by way of a letter from the Court giving him notice, or, if he is made a party, by a Summons to attend the court. While dealing with the case of
Muzafar Ahmed (Supra) at page 291 the Supreme Court does not seem to approve the view that the words ''suit or proceeding'' u/s 70(4) did not
include an appeal and opines that it requires careful consideration.
There is thus no merit in the appeal which is dismissed. The judgment and decree of the Court below are affirmed.
