The record is taken up for passing necessary order. Perused the petition under Order 39 Rule 1/2 and section 151 of the 1908 Code of Civil procedure and the supporting affidavit, the plaint, submitted documents, and the materials available on record.
2. On such perusal, it appears to the court that this is a suit for declaration that the plaintiff be a Mutawalli for the waqf estate mentioned in the schedule to the plaint. the substance of the petition encapsulates that the plaintiff was a Mutawalli for the waqf estate mentioned in the schedule to the plaint. But his appointment as a Mutawalli has been terminated by an order of the Assistant Waqf Administrator (in charge) of the Bangladesh Waqf Administration. In substitution, the Bangladesh Waqf Administration has formed a new committee and directed the plaintiff to hand over the charge to the new committee. The petitioner now invokes the court’s intervention against the defendant No. 02-03 so that they could not oust him the land he holds in the capacity of a Mutawalli.
03. Now, the point for determination before the court resonates with whether the plaintiff may get the relief prayed for. The so-called trinity of principles on which rests the foundation of any order of injunction are the cornerstones of a party’s pleading in a proceeding for an injunction. No doubt, the prima facie case means the plaintiff must show the existence of a legal right in him to continue in possession. It is a substantial question raised bona fide, which needs investigation and a decision on merits. In addition, a finding on 'prima facie case' would be a finding of fact.
04. Firstly, on careful perusal of the averments of pleadings, respective petition as well as submitted documents, it conspicuously appears that upon being appointed as a Mutawalli for the Waqf estate, the plaintiff took care of the estate and also took steps for instituting a lawsuit in the Court of Joint District Judge regarding the estate. But the materials on record show that his appointment as a Mutawalli has been terminated by an order of the Assistant Waqf Administrator (in charge) of the Bangladesh Waqf Administration. In substitution, the Bangladesh Waqf Administration has already formed and approved a new committee for the next two years and directed the plaintiff to hand over the charge to the new committee. This new committee approval order also states that the validity of the committee led by the plaintiff has expired. However, the suit is brought into being to challenge the termination of the plaintiff’s tenure and the approval of the new committee on this behalf.
05. The provision of section 32 of the Waqfs Ordinance, 1962 envisages that the Administrator may, on his own motion or on an application of any beneficiary, remove a mutawalli under certain circumstances. Subsection 02 also provides remedial mechanisms for an aggrieved person. The plaintiff is found not to elect any of the options provided therein. Instead, he turned up before this court and invokes the court’s discretionary jurisdiction under the provisions of section 42 of the 1887 Specific Relief Act. Of course, the court thinks that this lawsuit shows some material facts which obviously carry him to the trial with his suit. So, he has demonstrated a ‘good and arguable case’ in his favour. It is thus needless to hold that concerning the present case, a fair question is raised for determination; and accordingly, it is decided that a prima facie case is established within the ambit of the instant context.
06. About the plaintiff’s dominion over the Waqf estate, he only asserts that he has been running the same over 40 years, and now facing dispossession therefrom. So far as the subject matter of this suit is concerned, it is trite to say that the plaintiff held that estate as a Mutawalli, where a committee was also a body to oversee the overall betterment of the estate. Now, as it stands, the committee is dissolved by a proper and empowered authority, and the suit challenging the order of that authority is brought into being by only the plaintiff-president of that committee, which is already dissolved. Hence, it is now not ascertainable how and in what manner, he may suffer loss by dint of being ousted from the suit estate with the materials available on the record. So, it is contextually opined that the plaintiff’s retention claims in the specified suit estate cannot be decided upon the materials available on the record right now without taking further pieces of evidence.
07. Balance of convenience meaning to comparative mischief or inconvenience is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. Apart from a prima facie case and a balance of convenience, the pleadings must establish also a case of irreparable injury to occur to the plaintiff if no injunction were granted.
08. The issue is, in fact, to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Having taken aforesaid narratives, it is much safe to hold that speaking out the irreparable injury alleged to have occurred to the plaintiff if no injunction were granted, or deciding upon the question of the balance of convenience and inconvenience to the parties fall short in any details to be determined due to the findings made hereinbefore.
09. Of irreparable injury', such injury cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before the injunction was refused. In the instant context, it diaphanously appears that the plaintiff’s threatened damages are not ascertainable as such. On the other hand, if he succeeds in this lawsuit, the court thinks that monetary compensation can be an adequate remedy to the plaintiff even in case he may face injury,
More importantly, section 102 of the Waqfs Ordinance, 1962 provides provisions that “except as otherwise expressly provided in this Ordinance, no decision or order of the Administrator shall be questioned in any suit or other proceeding in any Court. It is further well-conversant that the phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. Keeping all of these things in the appreciation of the appearing facts and aspects, the court is of view that the plaintiff’s prayer for temporary injunction is not worth-being allowed.
Hence, it is ordered that the application for temporary injunction dated 21.11.21 be disallowed ex parte. The next date is 31.01.2022 for the return of summons and ADs.