1. ' C.M.A. No,4459 of 1990 is an application praying for stay of operation of the order and decree dated 11th February, 1990 and also for an order restraining the Plaintiffs/opponents from alienating, selling, mortgaging, transferring, interfering, renting, collecting rents or otherwise dispoing of the suit property and so on.
2. ' Applicant Abdul Hameed has filed an application under section 12(2), C.P.C. Praying that the order and decree in suit No,1090 of 1988 be set aside. Suit No,1090 of 1988 was filed by Mehmood and three others beneficiaries of a Muslim Waqf-alal-Aulad against its Mutawalli Abdul Hameed and his brother Abdur Rasheed and sister Mst. Hameeda. It was alleged that Abdul Hameed had mis- managed this property, details of which are given in paras 8 to 10 of the plaint. It was further alleged that Abdul Hameed had not been rendering accounts to the plaintiffs or defendants and was not paying maintenance, expenses for adjudication, medical charges and other charges which they were entitled under the Waqf-Deed, except certain nominal payment to Plaintiff No,3 for some time. It was further alleged that Abdul Hameed had granted leases of Waqf property for a term exceeding three years and was, therefore, liable to be removed from the office of Mutawalli.
3. He was also liable to render accounts. Abdul Hameed as well as Defendants Nos. 2 and 3 did not contest the suit. Mr. Ashiq Ali Abdullah, Advocate, who appeared on behalf of Defendant No,2 did not file any written statement. He gave no objections to the prayers made in the suit. Under the circumstances the Court passed a preliminary decree for accounts. Mr. Bashir Ahmed Memon, Official Assignee was appointed as Commissioner to take the accounts. The Commissioner submitted his report showing that Abdul Hameed Mutawalli was liable to account for a sum of Rs,98,74,500 which he was failed to render. No objections were filed to this report. Hence the Court removed Abdul Hameed from Mutawalliship and appointed Plaintiff No,1, Mehmood as Mutawalli.
4. ' Mr. A. De-Cruz, learned counsel, who appeared for the applicant has contended that this Court had no jurisdiction to entertain the suit as under the Musalman Waqf Validating Act Mutawalli was not bound to give accounts. Additionally he contended that there was no provision in the Deed creating this Waqf about the accounts and therefore, the presumption was that the Mutawalli was not to give any accounts.
5. I do not find myself in agreement with the contentions of the applicant's counsel. A Mutawalli of Waqf-alal-Aulad is bound to give accounts and can also be removed by Court, if it is proved that he is guilty of misfeasance or mis-conduct. Reference in this connection may be made to section 213 of Mulla's Mohammadan Law, 16th Edition, which reads as under:-- "213. Removal of Mutawalli.--A Mutawalli may be removed by the Court on proof of misfeasance or breach of trust, or it is found that he is otherwise unfit to hold the office, though the founder may have expressly directed that he should not he removed in any case. The founder has no power, after delivery of possession, to remove a Mutawalli in any case, unless he has expressly reserved such a power in the deed of wakf."
6. ' The Muslim Law as explained by Baillie in his book at p.608 and Macnaghten at p.79, section 5 goes to the extent of providing that even a founder of a Trust, who is himself a Mutawalli, may be removed by the Court on the ground of misconduct. In section 216 of Mulla's Mohammadan Law it is provided that "no suit against a Mutawalli or his L.Rs, for the purpose of following in his or their hands such property or the proceeds thereof or for the accounts of such proceeds, is barred by any length of time".
7. ' Since the applicant had himself chosen not to appear and contest the proceedings, therefore, now he cannot come and claim to set aside that decree until and unless he is able to show a good cause. I, therefore, am of the clear view that the applicant has no prima facie case and therefore, dismiss C.M.A. No,4459 of 1990.