' KHALID ALI Z QAZI, J.---C.M.As. 4047 and 4223 of 2007 are applications moved by the defendants Nos. 8 and 9 for the rejection of the plaint under Order VII rule 11, C.P.C.; while C.M.As. 1777 and 1778 of 2007 are applications for injunction moved by the plaintiffs. As there are common questions of law and facts, all the above applications are being disposed of through the instant consolidated order..The brief facts giving rise to the present applications are that the plaintiff is one of the beneficiaries of the Waqf-alal-aulad known as the Haji Sir Abdullah Haroon Waqf No,2 (hereafter referred as to "the Waqf"). The document filed as Annex-A-1 to the plaint reflects that the Waqf was registered some time in 1943.
2. One of the properties in the Waqf is a plot with building thereon, bearing Survey No,3, Sheet No, SB-5, measuring 1790 sq. Yds, in Saddar Bazar Quarters, Karachi (hereinafter referred to as "the suit property") which finds mentioned in serial No, 3 of the schedule of the Waqf properties.
3. Clause 15 of the Waqf Nama has expressly barred the letting out of the ground floor and out houses of the suit property:reserving the same in perpetuity for the use or residence of the lineal male descendents of the Waqifs. As the matter would revolve round the interpretation of the said clause 15 of the Waqfnama, it shall be convenient to reproduce the same which reads as follows:-- "Item No, 3 in the Schedule of Wakf properties is the old residential house of Haji Sir Abdoola Haroon and the ground floor of the main building and certain out houses attached thereto are upto now in the occupation ccupation of two of us viz. The executants Nos. 2 & 3. The ground floor is occasionally occupied by other members of the family of Haji Sir Abdoolah Haroon. (illegible) of the outhouses are like wise used for the benefit of two of us viz. The executants Nos.2 & 3 only and for the benefit of our sons. We hereby expressly declare and direct that the Mutawallis shall not let on rent the said ground floor and outhouses and shall reserve the same in perpetuity for the use and residence of us the executants Nos. 2 & 3 and for the use and residence of our sons and their lineal male descendents in perpetuity. The Mutawallis shall pay all taxes, costs of repairs and Income Tax in respect of the said ground floor and outhouses from the income of the rest of the Wakf properties and shall likewise set apart such sums as they deem fit for alterations thereon and for rebuilding the same."
4. The Defendants Nos.1 and 2 are the acting Mutawwalis (trustees) of Waqf, while the defendants Nos. 3 to 7 are other beneficiaries of the Waqf.
5. The case pitched by the plaintiff is that the defendants Nos. 1 and 2 permitted the original construction of the suit property to deteriorate; but despite this some portion of the original structure, and out houses, still exist on the suit property. According to the plaintiff, he is the lineal male descendant of the Waqifs and has been using the said structure as a store room for his personal belonging as contemplated by clause 15 of the Waqf Nama and for such purpose the plaintiff claims to have deployed personnel to guard the said structure.
7. It seems that the defendants Nos.3 to 7 filed Suit No, 596/1998 in this Court seeking, inter alia, accounts of the Waqf from the Mutawalis. While such suit was pending, on 25-11-1999 the defendants Nos.1 and 2 as Mutawalis entered into an agreement with the defendants Nos.8 and 9, being building contractors, to construct shops, flats, offices, parking etc. On some of the properties of the Waqf, including the suit property. Under the said agreement dated 25-11-1999 the defendants Nos. 8 and 9 were also permitted to rent out shops, flats and offices on the suit property. According to the plaintiff, under the said agreement of 25-11-1999 no provision was made for any residences on the ground floor, which was violative of clause 15 of the Waqf Nama.
8. In the above background, a learned Single Judge of the Court vide order dated 10-10-2000 in Suit No, 596/1998 was pleased to stay the implementation of the agreement dated 25-11-1999. The plaintiff has contended that he i,e, the said plaintiff and the defendant No, 8 in this suit became parties (i,e, Defendants) in Suit No, 596/1998, subsequent to the order dated 10-10-2000. Although the plaintiff has not disclosed this fact but against the order dated 10-10-2000 passed in Suit No, 596/1998, High Court Appeals Nos. 315 and 318 of 2000 and 3 of 2001 were filed before a Division Bench of this Court, which were dismissed vide judgment/order dated 20-11-2002. The judgment of the Division Bench dismissing the High Court Appeals reported as Hussain A. Haroon and others v.
Laila Sarfraz 2003 CLC 771. Further aggrieved, CPLA 1165-K/2002 was filed before the Honourable Supreme Court but the same was withdrawn in view of what has been explained below. ,
9. In the meanwhile the defendant No,8 filed an undertaking dated 16-3-2006 in Suit No, 596/1998 wherein a schedule of certain terms and conditions was provided. This was followed by an application under Order XXIII rule 1 of the C.P.C. Being C.M.A. No, 1765/2006, facilitating the withdrawal of Suit No, 596/1998 in view of the undertaking dated 16-3-2006. Interestingly, C.M.A.
1765/2006 was signed by all except the plaintiff in this suit (who was the Defendant No,6 in Suit No,596/1998). Vide order dated 17-3-2006 passed in Suit No, 596/1998 the suit was allowed to be withdrawn in terms of the undertaking dated 16-3-2006 passed in Suit No, 596/1998. The order dated 17-3-2006 passed in Suit No, 596/1998 has been filed as Annex-F to the plaint, which does not reflect the attendance of the plaintiff in this suit or his counsel.
10. The plaintiff has alleged that after the withdrawal of the Suit No,596/ 4998 on 17-3-2006 the interim order passed therein whereby the defendant Nos. 8 and 9 in this suit were stopped from carrying out construction on the property in violation of the clause 15 of the Waqf Nama, stood vacated.
11. The plaintiff through the instant suit has alleged that the cause of action arose to him on 16-3- 2006 when the defendant No, 8 gave the unlawful undertaking in Suit No, 596/1998 and hereafter when the defendants Nos. 8 and 9 proceeded with the unlawful construction on the property in terms of the illegal agreement of 25-11-1999. Through the instant suit the plaintiff has sought, inter alia, the cancellation of the agreement dated 25-11-1999 and the undertaking dated 16-3-2006.
12. The defendants Nos. 8 and 9 have filed a comprehensive written statement wherein they have attacked the maintainability of suit on grounds that once the Suit No, 596/1998 was withdrawn the present suit stands barred under section 12(2) of the C.P.C. Read with the principles of res judicata.
Additionally, it is contended that the suit is barred under sections 42, 54 and 56 of the Specific Relief Act, 1877. It is further contended by the defendants Nos. 7 and 8 that since the agreement dated 25-11-1999 is neither void nor voidable the provisions of section 39 of the Specific Relief Act, 1877 are not available to the plaintiff. The suit is also claimed by the defendants Nos. 7 and 8 to be barred by limitation in view of Articles 91 and 100 of the schedule to the Limitation Act. Allegations are levelled by the said defendants that the plaintiff has not come to the Court with clean hands as it has suppressed relevant facts and material, hence he is not entitled to any equitable or discretionary relief. It is further pointed out by the defendants Nos. 8 and 9 that by efflux of time the suit property has lost its residential status. It is further stated that the executant No, 1 of the Waqf i,e, Lady Nusrat Khanam has herself taken the steps to amend the object of, the Waqf. The process of conversions of the property and amalgamation of the properties have been going on since 1961 without any objection by the plaintiff. Reference is invited to certain letters and plans passed by the lessor and the Building Control Authority to substantiate the point that the original residential status of the properties was altered by consent or waiver of all concerned. It is vehemently denied that there was any personal or private benefit accruable which may have arisen in view of the undertaking dated 16-3-2006. Very significantly, it is contended that the lease of the suit property (along with some other properties) expired and it was the defendants Nos. 8 and 9 who paid Rs, 5 million to the then KDA/KMC to seek restoration of the lease of the property. Apart from this it is contended by the defendants that huge investment has been made by the said defendants on the suit property and before the prayer of the plaintiff for cancellation or injunction could be even entertained, -lie should be made to deposit Rs, 35 million expended by the defendants Nos. 8 and 9 in terms of section 41 of the Specific Relief Act, 1877 read with Order XXXIX rule 10 C.P.C.
13. Messrs Rasheed A. Rizvi and Haider Imam Rizvi, Advocates appearing for the defendant No,8, in support of their application under Order VII rule 11 (C. M. A. 4047/2007) forwarded the arguments which have been laid down in detail in the written statement of the defendants Nos.8 and 9 and which have been underscored above. Mr. Afsar Ali Abid, the learned counsel for the defendant No,9, in support of C.M.A. No,4223/2007, being also an applicant under Order VII rule 11, C.P.C, has forwarded a set of submissions similar to Messrs Rasheed A. Rizvi and Haider Imam Rizvi, Advocates for the defendant No,8.
14. Mr. Rizvi has in particular relied upon the following contentions and case law:--
(a) Muhammad Salim Ullah & others v. ADJ PLD 2005 SC 511 and S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (Moin) 2002 SCMR 338 for the point that where the documents attached to the written statement are admitted by the plaintiff, such documents can- be entertained by Court in deciding the application under Order VII rule 11 C.P.C;
(b) reference in particular is made to Article 91 of the Limitation Act, 1908 for the point that the suit challenging the agreement dated 25-11-1999 is hopelessly time-barred as the same has not been filed within three years as required by law. Reliance is placed on Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624, Shamshad Ali Shah v. Syed Hassan Shah PLD 1964 SC 143, Abdul Karim v. M.
Akram 1995 CLC 130 and Habibullah v. Aziz Bibi 1998 CLC 2125;
(c) it was further contended that in this case the plaintiff has sought a declaration with regards to a contract, whereas under Section 42 of the Specific Relief Act a declaration can only be sought in relation to the legal status or character. As such it is contended that suit is barred under section 42 of the Specific Relief Act. For such purpose reliance is placed on M. Naser v. Chairman Pakistan Eastern Railways PLD 1965 SC 83, Alavi Sons Ltd v. Government of East Pakistan PLD 1968 Karachi 222, Karsaz Construction Co. v. Pakistan 1999 CLC 1719, Burmah Eastern Ltd. v. Burmah Eastern Employees Union PLD 1967 Dacca 190 and PIAC v. Muhammad .Izharul Ahsan PLD 1979 Karachi 640; (d). It is further submitted that a contract can only be cancelled if either it is void within the meaning of section 2(g) of the Contract Act or voidable under section 19 of the Contract Act.
Furthermore, a contract is only voidable at the option of the parties whose consent may have been obtained through coercion, fraud or misrepresentation. Therefore, a heavy burden lies upon the plaintiff to establish the latter. It is also submitted that since admittedly the plaintiff was not a party to the agreement dated 25-11-1999 he cannot proceed to show as to whether the consent was obtained through coercion, fraud or misrepresentation. Hence the plaintiff is disentitled to invoke section 39 of the Specific Relief Act whereby the agreement dated 25-11-1999 could be cancelled; the majority of the Mutawalis and beneficiaries, except the plaintiff, have conceded to the agreement dated 25-11-1999 and undertaking dated 16-3-2006;
(e) on the point that the suit is bared under section 12(2) of the C.P.C. Read with Order XXIII rule 1 of the C.P.C, reliance is placed on Shaukat Ali v. Liaquat Ali 2005 CLC 1042, Saleem Rashid v. Pak-Libya Holding Company 2004 CLD 1088 and Amina Bibi v. Nasrullah 2000 SCMR 296;
(f) on the point that the plaintiff has failed to establishe the three ingredients required for the grant of a temporary injunction, reliance is placed on Sharif Haroon v. Province of Sindh PLD 2003 Karachi 222, Muhammad Abid v. Nasir Ahmed 2000 SCMR 780, Zeenat Begum v. Jan Mir Khan 1986 CLC 2923 and Marghoob Siddiqui v. Hamid Ahmed Khan 1974 SCMR 519.
15. Replying to the many objections of the defendants, Mr. Adnan Chaudhry, the learned counsel for the plaintiff has submitted as follows:-
(a) if a Waqf has once been created it cannot be revoked or invalidated by any subsequent act of the Waqif. It is further contended that once a property is dedicated, the right of the Waqif is extinguished. Any inaction on the part of the beneficiaries with regard to the alleged amalgamation of the Waqf property cannot be construed as an estoppel or waiver of their rights.
Agreement dated 25-11-1999 and the undertaking dated 16-3-2006 are against the mandate of the Waqfnama/deed. In this regard reliance is placed on Faizanul Haq v. Irfan ul Haq 1986 MLD 2750 and Hussain A. Haroon and others v. Laila Sarfraz 2003 CLC 771;
(b) replying to the objection of the defendants on the touchstone of section 42 of the Specific Relief Act, as revealed by the defendants Mr. Chaudhry has contended that the said section 42 is not exhaustive. In this regard reliance is placed on Arif Majeed Malik v. Board of Governors, Karachi Grammar School 2004 CLC 1029;
(c) responding to the objection that since the plaintiff was not party to the agreement dated 25-11- 1999 the provision of section 39 of Specific Relief Act cannot be invoked by him, it is contended by Mr. Chaudhry that an instrument can be declared to be invalid without having to cancel the same.
For such purpose reliance is placed on Hamida Begum v. Murad Begum PLD 1975 SC 624, Shamshad Ali Shah v. Syed Hussain Shah PLD 1964 SC 143 and Mst. Halimah Bibi v. Muhammad Bashir 1989 CLC 1588;
(d) rebutting the arguments on the touchstone of the Limitation Act, it is contended that according to section 10 of the Limitation Act, the said statute does not apply to Waqf properties. Hence the suit is not barred by the Limitation Act. Reliance is placed Abdul Hameed v. Mahmood 1993 SCMR 1334.
16. I have heard in detail the arguments of parties, perused the record and law on the point.
17. Admittedly, the plaintiff was not a party or a signatory to the undertaking dated 16-3-2006. He also did not sign or gave consent to C.M.A. No,1765/2006 in Suit No, 596/1998 (under Order XXIII, rule 1 of the C.P.C.) which culminated into passing of the order dated 17-3-2006 whereby the said Suit 596/1998 was withdrawn. The record also shows that the order of 17-3-2006 passed in Suit 596/1998 does not record the presence of the plaintiff or his counsel. Therefore, it can be safely said that any compromise or agreement arising out of the C.M.A. No,1765/2006 in Suit 596/1998 culminating into any order of the Court or decree is only binding vis-a-vis the parties who consented to the undertaking dated 16-3-2006 or C.M.A. 1765/20d6. The argument that the provisions of section 12(2) of the C.P.C. Bars a fresh suit and the plaintiff could at best have filed an application under section 12(2) challenging the order dated 17-3-2006 whereby Suit No, 596/1998 was withdrawn, is again misconceived. It is settled proposition of law that a decree passed in a case is only binding on the parties of the lis and furthermore, consent decrees or consent orders only bind those parties or A persons who gave consent to the order or decree (on this point I have been able to lay may hands on Sarwar Khan v. Mir Ali 1980 CLC 110, Abdur Razzaq v. Abdul Aziz 1991 MLD 889, Sher Muhammad v. Barkat Bibi 1993 MLD 692, Muhammad Yar v. Sawan Main 1993 SCMR 251, Ahmed Khan v. Irshad Begum 2007 MLD 331 and Muhammad Kalim Khan v. Muhammad Farouk Khan PLD 1987 Kar 38). The plaintiff not having given his consent to the undertaking dated B 16-3- 2006 or C.M.A. No, 1785/2006 in (suit 596 of 1998), the present suit is not barred under section 12(2) of the C.P.C. Logically, the principle of res judicata, as mooted by the defendants, was applicable to C the consenting parties to the undertaking and withdrawal application in the earlier suit. And for similar reasons the suit is not found barred under the principle of res judicata.
18. The next objection of the defendants is that since the plaintiff was not a party to the agreement dated 25-11-1999, he cannot proceed to show that the consent for the purposes of the said agreement was obtained through fraud, coercion or misrepresentation; hence the provision of section 39 of the Specific Relief Act is not applicable. The argument is devoid of any merit. As correctly pointed by Mr. Adnan Chaudhry, Advocate, an agreement can be declared to be void without the need of having to cancel the sameE In coming to such a conclusion I am fortified by the judgments relied upon by Mr. Chaudhry, in particular Mst. Halimah Bibi v. Muhammad Bashir 1989 CLC 1588.
19. The objections that the present suit is barred under sections 42, 54 and 56 of the Specific Relief Act, 1877 have also no substance. Much water has flown under the bridge. In H.A. Rahim v. Province of Sindh 2003 CLC 649 a learned Single Judge of this Court while repelling a similar argument was pleased to hold that section 42 is not exhaustive; and even if a declaration cannot be given, a Court is still empowered to grant injunction. This judgment of the learned Single Judge in H.A.
Rahim has been cited with approval by a Division Bench of this Court in Arif Majeed Malik v. Board of Governors, Karachi Grammar School 2004 CLC 1029. Hence the argument of the defendants in this regard is also rejected.
20. The last objection in pursuance of the applications under Order VII rule 11 is that the suit is barred under Articles 91 and 100 to the schedule of the Limitation Act. Again I am not impressed with this argument at this stage for the simple reason that prima facie section 10 of the Limitation Act has excluded the application of latter statute in respect of Waqf properties. The judgment reported as Abdul Hameed v. Mahmood 1993 SCMR 1334 confirms this point. And even otherwise it is not known as to the exact time when the plaintiff found out about the agreement dated 25-11- 1999. Indeed, there is same merit in the contention of the defendants that the construction work all was along underway and there was every likelihood of the plaintiff all along knowing about the agreement dated 25-11-1999 and did nothing about it till the filing of the present suit. However, nothing can be decided on presumptions and this issue will require evidence. Also the above observations with regard to the application of the Limitation Act, in the peculiar facts and circumstances of the present suit, are tentative and the issue .Of limitation is left open to be decided after the recording of evidence.
21. In light of the above discussion no case is made out for the rejection of the plaint under Order VII rule 11. Hence C.M.As. Nos.4047 and 4223 of 2007 are hereby dismissed with no order as to costs.
22. This brings me to the injunction applications of the plaintiffs. The judgment of the Division Bench of this Court reported as Hussain A. Haroon and others v. Laila Sarfraz 2003 CLC 771 upheld in High Court appeal the interlocutory order of injunction dated 10-10-2000 passed in Suit No, 596/1998.
The defendants appear to be correct in stating that once the said Suit 596/1998 was withdrawn on 17-3-2006, all the interlocutory orders flowing from the said suit including the appellate order reported as 2003 CLC 771 would seize to hold the field. However, the principle of law decided in the latter reported judgment can be looked into for the purposes of deciding a case. In other words, the judgment passed in 2003 CLC 771 may not be applicable here as a 'judgment in personam but the law declared therein, will be available for any subsequent judicial determination (see in this regard Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145, Atta Muhammad v. Member BOR 2003 CLC 149, Ikram Bibi v. N.B.P. 2005 SCMR 100 and Tara Chand v. KWSB 2005 SCMR 499).
23. In 2003 CLC 771 (cited supra) it was held that once a Waqf was created, the right of the Waqif was extinguished and the ownership of the property which was the subject-matter of the Waqf was transferred to God. It was also discussed in that case that the Mutawwalis were only managers and could not deal with the property as owners or act in a manner which was violative of the Waqf Nama/Waqf deed. In other words, it was observed that the Mutawwalis could not act in violation of purpose and mandate prescribed by the Waqf. It was further pointed out that neither the Mutawwalis nor the beneficiaries could waive any condition attached to the Waqf for the simple reason that a person could only waive his rights by way of estoppel or otherwise if he possessed those rights. In this property the Mutawwalis or the beneficiaries could not change the conditions and requirements of the Waqf. It was further observed that any majority decision, beneficial to them would be no excuse to violate the mandate of the Waqf. Hence any amalgamation of the properties or correspondence exchanged by the beneficiaries in this regard would be of no consequence. The only exception provided in the precedented judgment under discussion is the doctrine of Cypres, which means "as nearly as possible". While relying upon the judgment reported as Salibai v. Bai Safiabeen ILR Vol. 36 Bom 111 and the Halsbury's Laws of India, Butterworths, New Delhi at paras 290-280, 290-281 and 290-282 it was held that if the original purpose of a trust could not be fulfilled, the Court could permit the utilization of the trust property for a purpose as nearly as possible to the original purpose under the doctrine of Cypres. I have further been able to lay my hands on Balkrishna Vishvanath v. Vinayak Narayan AIR 1932 Bombay 191 wherein it has been held, in the context of a will, that the doctrine of Cypres, can employ where due to the lapse of time and changed circumstances it is impossible to beneficially employ the property left by the founder donor as per his original directions. In Commissioner Lucknow v. Deputy Commissioner of Partabgarh AIR 1937 PC 240 it was observed that in the event of impracticability the trustees could not abandon the claim, nor could they employ the doctrine of Cypres without recourse to the Court of law. In S.B. Ajaib Singh v. Smt. Harnam Kaur AIR 1954 Punjab 150 it was held that the doctrine of Cypres has been evolved as an auxiliary to the main purpose of the trust and the said doctrine ipso facto is no excuse to defeat the original purpose of the trust. There are indeed, clear judgments from the Indian jurisdiction which hold that the doctrine of Cypres is applicable to Muslim Waqfs [see Salebai v. Safiabi ILR (1905) 36 Born 111 cited in Hussain A. Haroon and others v. Laila Sarfaraz 2003 CLC 771; Kusum Bibee v. Golam Hossain (1905) 10 CWN 449 and Nawab Syed M. Hashim Ali v.
Iffat Ara Hamidi AIR 1942 Cal 180.
24. The doctrine of Cypres is applicable where although the original object to the charitable trust cannot be achieved, an objection as nearly as possible similar to the original objective can be achieved. But where neither the original purpose not a purpose similar thereto may be achieved, the doctrine of Cypres will not be able to save trust. In Re Hillier (1954)2 All ER 59 it was held that the erection of a voluntary hospital delayed by war was impracticable after the National Health Services Act, 1946 precluded the erection of any new voluntary hospital. Other illustrations where the doctrine of Cypres was not able to save the "impossible" trust are:--
(a) Re White's Trusts (1886) 33 ChD 449 and Biscoe v. Jackson (1887) 35 ChD 460 where the trusts were found to be impossible ab initio since suitable land could not be found to built institutions intended by the donors;
(b) Re Burton's Charity (1938) 3 All ER 90 and Murray v. Thomas (1937) 4 All ER 545 where the money donated was found to be insufficient for the achievement of the purposes proposed;
(c) the precedent cited in sub-para. (a) of Re White's Trusts is also An authority for the proposition that the trust could fail where although there is sufficient donated money to establish a proposed institution, no funds are available for its maintenance;
(d) Re Dominion Students' Hall Trust (1947) Ch 183 where the trust failed since the consequence of observing the terms of the trust could lead to defeating the charity's main object;
(e) Re Woodhams (1981) 1 All ER 202 where acceptance of the trust by the trustees, named in the trust, was an essential part of the beneficial intention. Upon refusal of the purposed 'trustee' to act as a trustee or to accept the trust on the terms originally proposed, resulted in the failure of the trust.
25. In the present case the admitted position is that the suit property has already been demolished except an out house on the ground floor which is in a dilapidated state. Vide order dated 10-10- 2000 passed in Suit 596/1998 the Agreement dated 25-11-1999 was stayed. Such order was upheld in High Court Appeal (see 2003 CLC 771). However, Suit 596 of 1998 was withdrawn on 17-3-2006, whereafter the construction around the out-house was demolished. At the time when the order dated 10-10-2000 (in Suit 596/1998) was passed, perhaps the out-house did not stand on its own.
But now the position is different. The Court has ample power to notice a change in the surrounding circumstances (see Asghar v. Creators 2001 SCMR 279). Prima facie it appears to me that in view of that the remaining construction having been demolished, that out house cannot survive on its own.
Also Suit No, 596 of 1998 was withdrawn on 17-3-2006, vacating all the interim orders operating therein. The plaintiff waiting all along for nearly a year, whereafter the present suit was filed on 3-3- 2007. No plausible explanation has been given by the plaintiff to explain this inordinate delay during which the defendants Nos.8 and 9 have taken steps towards the implementation of the agreement dated 25-11-1999 by carrying out the act of demolition and construction in question. In Abdul Ghafoor Memon v. Muhammad PLD 1975 Kar. 464 a learned. Single Judge of this Court refused to grant injunction when the objector to the construction had filed the suit 6 months after the commencement of the construction.
26. Again it is not denied by the plaintiff that the defendants Nos.8 and 9 contributed by paying 5 million to seek restoration of the lease in respect of the suit property which had expired. The said defendants 8 and 9 appear to have also substantially expended on the trust property. Thus prima facie, the property not capable of being employed for the original purpose of the Waqf as contemplated in clause 15 of the Waqf Nama, the injunction applications being hit by laches and the equities not being in favour of the plaintiff for the grant of the injunction in view of the contribution made by the third parties. i,e, defendants Nos.8 and 9 to seek restoration of the lease of the trust property, this is not a fit case where the injunction can be granted. Accordingly, C.M.As.
Nos.1777 of 2007 and 1778 of 2007 are hereby dismissed and the interim order is recalled, with no order as to costs.
27. The defendants Nos. 1,4 and 5 are granted 4 week's time to file their respective written statements. The time shall run after the conclusion of the summer vacations of this Court.
28. Before parting it may be stated that the doctrine of Cypres cannot be employed without the permission of the Court, as observed above. Equally, various issues discussed above, inter alia, including and not limited to the aspect with regards the failure of the Trust/Waqf are left open. The parties are of course at liberty to move the proper forum for the latter purposes. Decision, if any, will have to be taken, if called upon, keeping in view the equities tilting in favour of any of the parties, including the defendants Nos. 8 & 9. All observations as above are tentative in nature.