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Citedby 1 docs
Mohd. Wasi And Anr. vs Bachchan Sahib And Ors. on 30 September, 1954

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Madras High Court
Muthala Kandi Katturi Koya Molla vs Palli Veetil Abu Baker on 16 July, 1912
Equivalent citations: 17 Ind Cas 386
Author: S Aiyar
Bench: S Aiyar, S Aiyar

JUDGMENT Sundara Aiyar, J.

1. The plaintiff in this suit sought a declaration of his right to perform certain ceremonies in the Muchanti Mosque in Calicut and to restrain the defendant from preventing him in any way from performing them. He also asked for damages alleged to have been sustained by him in consequence of an obstruction caused by the defendant. Now, the plaint states in paragraph 3 (4) that the plaintiff was in the habit of offering prayers and reciting the Koran in the mosque for 5 days consecutively from the 20th to the 24th in the month of Shaban and distributing sweetmeats, kapu, etc., that were brought for the said purpose by the persons who went there, The prayer in the plaint is that the defendant should be restrained from preventing, the plaintiff from performing the equal ceremonies such as reciting the Koran, etc. Beading the prayer with paragraph 3 (4) of the plaint, it is probable that the plaintiff wished to obtain an injunction restraining the defendant from interfering with the performance of any part of the ceremonies set out in paragraph 3 (4) including the distribution of sweetmeats, kapu, etc., brought by other persons on the occasion of his offering prayers and reciting the Koran. The defendant denied altogether the plaintiff's right to recite the Koran in the mosque and alleged that that was not one of the rights which the members of the congregation of the mosque had as a part of their right ot worship.

2. Both the lower Courts have found that any Muhammadan worshipper has the right both to offer prayers and to recite the Koran as a part of his right of worship in the mosque. The Courts do not base this finding on any special right which the plaintiff has in consequence of the reputed sanctity of his father or any special right possessed by the plaintiff in connection with the celebration of the anniversary of his father. The finding proceeds on the ground that as the plaintiff as a worshipper had the right to offer prayers and to recite the Koran, he was entitled to do so on the days mentioned in the plaint, namely, from the 24th to 28th of Shaban. There is no reason for not accepting the lower Courts finding as so understood. The lower Courts do not find that the plaintiff was entitled, as of right, to use the mosque either for collecting subscriptions or for distributing sweetmeats. It may be that there is nothing to prevent a worshipper from receiving at the mosque money offered to him there by others. But it is a very different thing to say that the plaintiff can claim to use the mosque as of right for the purpose of collecting subscriptions or distributing sweetmeats. A claim as of right to use the mosque for such purposes appears prima facie to be an extraordinary one. As the plaintiff does not, in his prayer, in terms ask, except by the use of the word et cetra, for any right beyond offering prayers and reciting the Koran and as neither of the Courts below has found that he has the right to use the mosque for collecting subscriptions or distributing sweetmeats, the injunction as framed in the decree of the lower Court must be regarded as vague.

3. It is necessary to make one further observation with reference to the prayer in the plaint and the phraseology of the injunction. The plaintiff asks for an injunction restraining the defendant from interfering with the plaintiff's performance of ceremonies including the offering of prayers and the recital of the Koran. If he meant that he had any special right to celebrate a ceremony in connection with the anniversary of his father, the findings of fact arrived at by the lower Courts do not support any such pretension. It is at least doubtful whether the lower Courts intended to recognize any such special right. It is necessary to modify the terms of the injunction so as to make it clear that the plaintiff's claim can be supported only on the rights possessed by him as an ordinary worshipper to offer prayers and recite the Koran on any day and at any time he chooses. His right must, of course, be subject to similar rights possessed by other members of the community. It is quite clear that the plaintiff's exercise of his right cannot be carried out in such a manner as to cause disturbance to other persons engaged in worship. If the defendant has any rights as the Mulla to enforce the exercise by the plaintiff of his right in such a manner as not to disturb others, the declaration in favour of the plaintiff of his right to offer prayers and to recite the Koran cannot affect the right of management or of discipline.

4. The decree must, therefore, be modified by its being declared that the plaintiff is entitled to offer prayers and to read the Koran in the Muchanti mosque as a worshipper. The injunction must be that the defendant be restrained from preventing the plaintiff's exercise of the above rights as an ordinary worshipper without prejudice to any rights that the defendant may have as Mulla to require the plaintiff to exercise his right without infringing the rights of other persons. In the circumstances, each side will bear their own costs throughout.

Sadasiva Aiyar, J.

5. I was at first inclined to reverse the judgment of the lower Courts and dismiss the suit wholly, because the defendant did not deny the plaintiff's right to recite the prayers in the mosque and because the plaintiff based his right to recite the Koran, not as an ordinary worshipper, but as part of the annual ceremony which he was entitled to perform for 5 or 6 days in connection with his father's death. It appears from the evidence of 4th plaintiff's witness that about 200 persons used to congregate in the mosque on such occasions and that this assembled crowd used to bring offerings and subscriptions and they used to have these offerings distributed among the crowd collected. Surely, the plaintiff cannot be allowed to have the ceremonies in connection with his deceased father's anniversary performed in the mosque? However, as defendant went too far in denying the right of even ordinary worshippers to recite the Koran in the mosque without his permission, it is better that an injunction do issue in the terms now made very clear in the judgment of my learned brother.