1. The matter has been heard for final disposal at this pre-admission stage on request of the counsel for the parties.
2. Respondent Syed Gh. Ahmed Qadiri claims to be Mutwali of Khanakh cum Ziyarat commonly known as Dargah Rahbab Sahib Ali Kadal, Srinagar. His father and fore-father have contributed in the establishment and running of the Ziyarat. He in consultation with members of the mananging Committee including the two petitioners did manage the affairs of the Dargah from time to time. Respondent would lead congregation in 'Nimaz' as Imam and also perform 'Khatam Khani.' The Dargah possess moveable and immovable property.
3. Petitioners case is that the said Gh. Ahmed Qadiri misappropriated some property of the Dargah and then mananging committee as also the followers and concerned people restrained him to perform Imamat and other functions at the Dargah. This action was reported by press and received publicity. In order to identify the property of the Dargah and the part of the property allegedly misappropriated, revenue agency was approached and the revenue authorities an processing the demarcation of the landed property' of Dargah. The respondent irked and offended by the action(s) has taken criminal proceeding for prosecution and filed a suit before 1st Additional District Judge, Srinagar .(Annexure-A, copy of the plaint). In the suit he is also pleading for his right of Imamat and to manage the affairs of the Dargah and has prayed for following reliefs:
'that a decree for recovery of Rs. Two lacs be passed in favour of the plaintiff and against the defendants severally and jointly till the decretal amount is completely realized.
2. Further a decree of injunction restraining the defendant from publishing in any manner whether spoken or written any defamatory news items/notices publications in any newspaper having circulation in or outside state or otherwise against the plaintiff during the pendency of the suit.
3. Defendants be also restrained not to cause any interference in any manner whatsoever individually or collectively in discharging the affairs of the Ziarat/Imamat and Khanakah (Mosque) as mutwali and sajadnishien.
4. Defendants be also restrained not to incite feelings and sentiments of the devotees by briefing acts of rowdyism and slogan shouting.
5. It is further prayed that the defendants be restrained from publishing the proceedings in the case till the final disposal of the suit. Their influence or at their behalf be restrained from causing interference or in any manner/way encroach upon the personal property consisting of (a) three storeyed residential building with attio (b) Two double storeyed residential buildings (c) a three storeyed residential building'(d) a three storeyed residential building alongwith land underneath appurtenant thereto situated adjacent to the shrine or in any way cause damage to the said property.'
4. With copy of the plaint number of other annexures are also filed to indicate that a civil suit inter se the parties is pending on the file of 1st Additional District & Session Judge, Srinagar regarding, running and managing affairs of the Dargah, and as to part of the property claimed by petitioners belonging to Dargah as against the plaintiffs assertion that same is his personal property. The petitioners allege that the process of identification of the property of the Dargah is on with the Revenue Authorities. The suit filed by respondent is not maintainable and the suit proceeding launched are not bonafide. 'Imamat' is not a heritable right and concerned 'umah' can appoint and change 'Imam' depending on eligibility and qualification of such Imam under Shariah Non-applicant has sold the land including the land of Dargah as his own and petitioners as members of the managing committee objected and strived to remedy the situation by resorting to legal process, thereby, petitioners have not done anything wrong Non-applicant has been removed from 'Imamat' by the locals and Muktadies after seeking religious diktat from religious scholars and in the light of 'Shara injunctions'. Petitioners concern is safety of revered objects and property of the Muslims on spot, petitioner's action to impose himself as Imam' and religious leader, is not tenable under Shariet law. Merely because petitioners have taken action and proceedings to that end, non-applicant should not feel aggrieved and same can-not furnish cause of action for the suit, which he has filed against the petitioners. It is in this context and with the aforementioned pleaded allegations that the petitioners have prayed for quashment of the pending suit proceedings including interim order passed from time to time, in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K.;
5. Respondent has filed objections on affidavit with the annexures. His main stand in reply is that the supervisory jurisdiction of this Court under Article 227 cannot be invoked to quash civil suit and the proceedings taken and orders passed by the trial court in such suit. Disputed questions of fact are involved in the suit, which need to be gone into during trial and determined on evidence. In addition to property and possessions of the Ziyarat Gousia Rahbab Sahib. Petitioner has his own property. It is around the Ziyarat Shrief, which he has inherited and has come to his hands from his forefathers, who have found and established the Ziyarat/Dargab and have been instrumental in raising the possession/property of the Ziyarat. He has even sold some property of his to the Ziyarat which has been utilized by latter to rebuilt, renovate and raise rental income of the Ziyarat. Petitioners have no representative character. They are out to cause aspersions and harm petitioners reputation and do whatever they can to deter him from performing the duties as 'Imam' and to restrain him to manage the affairs of and pin him down on settled position regarding accounts of the Ziyarat. The contention that the locals and the 'Muqtadies' objected to his being 'Imam' and removed from Imamat is just manipulating canard and on facts quite unfounded. He is not disqualified under Sharia to lead as 'Imam' in 'Nimaz and perform other religious duties at the Dargah and to look after the interest of Ziyarat. The 'Mandi Bag land', about which hue and cry is raised by the petitioners that this land belongs to Ziyarat is in fact his personal land which he has received as 'Matrukah property' from his parents, which has been subsequently subject to sale. He has a legal right to succeed as 'Sajadnisheen' and lead 'Khtam Khani' besides to perform the duties as Imam at the Ziyarat. Rahbab Sahib Ali Kadal, Srinagar. He has averred that he has right to display the holy relic of Dastgeer Sahibla and other Tabarukkas to the devotees on the auspicious occasions/specified days as Sajdnisheen and custodian of the Ziyarat and its valuables. The status and right of the respondent are constantly challenged by the petitioners, his fair name is being tarnished 'and be is even defamed and lowered in the estimations of the devotees by carrying false stories, canards and verification campaign widely circulated by Srinagar based newspaper . In the circumstances and situation in which he is the only course left to him was to seek redressal under law and therefore, he approached the court of law and filed suit for Damages/ compensation and injunction.
6. The counsel for the parties have advanced arguments in line with and in support of the respective stand, they have taken in the pleadings as above.
7. From record it is seen that the respondent has filed the civil quit in the court of Principal District Judge at Srinagar presently on the file of 1st. Additional District Judge, Srinagar. Plaintiff who in terms of factual pleas taken in the plaint, as referred above, averse to be 'sajadnisheen' and 'Mutwali' of the Ziyarat/Dargah. This status and position he claims has been conferred on him in 1969, after the death of his father, who held the same status and position in the Ziyarat/Dargah. Even the Tambleek Nama' (executed on 11th day of Ramzan 1375) is the documentation of his having come to be 'sajadnisheen' and 'Mutwali' of Ziyarat/Khankah', with duties and functions both temporal and religious, specified. He has been all through leading the 'Khatam Khani' and also acting as Imam at the Dargah. Besides the property and valuables of Ziyarat, in the creation of which his fore-fathers have contributed the personal Property of his family is around this ziyarat/Dargah, which he has full powers to alienate and dispose of. The property also includes a piece of land known as 'Mandi Bagh', more specifically referred in paras 5 and 6 of the plaint. This piece of land is sold by the plaintiff some-where in 1992 alongwith a house. However, the respondents self pro-claimed members of the managing Committee of the Ziyrat created a wide spread impression that this landed property belonged to Ziyarat which the plaintiff has managed to sell without any legal, moral or religious authority. A verification campaign has been launched against him. Defamatory material has been published against him with the object to tarnish his image and lower him in the eyes of public, as also the estimation of devotees, friends and relatives. The officials and police have been approached with mala fide intentions, so much so that even unfound allegations have been leveled against him that he is likely to commit mischief with regard to Dargah and Ziyarat's valuables including Tabrukas' which also include wholly relic of Dastgeer Sahib RA. The whole canard and verification campaign and false-hood is spread and published in print media to' defame him and remove him as 'Sajadnisheen' and 'Mutwali' of Ziyarat Khankah and to bar him from Imamat and restrain him from 'Khatam Khani'. It is on these pleas and allegations that the suit (with annexures A1 to A53 to plaint and this petition) for recovery of damages/compensation and for injunction as noted hereinabove has been filed and is pending before the court. The annexures do show and prima-facie pep-up the allegations reproduced above. In addition there is ad-interim ex-parte injunction order dated 4.2.2000 (Annexure-B), on record. Besides annexures C & C1 to C6 are the representations made by some people of Rahbab Sahib Ali Kadal, Srinagar for providing protection to Ziyarat/Dargah. Annexure D to D9 are the statements allegedly of plaintiffs father to indicate what property belongs to him as his personal property which has come in the hands of the plaintiff Some of the rent deeds Annexure E to E 11, again executed by plaintiffs father are to indicate that the properties referred therein are of Ziyarat/Khankah and not of plaintiff. The annexures F, G, H & I are some other documents annexed to the petition to show what property belongs to Ziyarat /Khailkah and what property belongs to plaintiffs father and on his death to plaintiff. Then again Annexure J & J1, are pressed into service to convey that as per Shariet plaintiff is not fit and worthy enough to be 'Imam' and perform other functions at the Ziyarat/Khankah.
9. All these annexures placed with the file by the petitioners/ defendants to the suit, amply show that there is a contest between the parties. Whereas the plaintiff has pleaded one set of facts and circumstances to serve as cause of action and form bedrock of the main case and relief claimed in the suit, whereas the defendants (petitioners before the High Court) have put up totally different case on facts and circumstances, supported apart from oral evidence by the documents to non-suit the plaintiff. The cause of action for the suit as placed before the court alongwith other pleas within para-meter of the code, do furnish a ground for the trial court to take cognizance of the suit. If the defendants have a case that there is no cause of action for the suit or that there is no merit in the suit they have their own remedies under the Code and the procedure therefor is also provided by the Code.
10. In such circumstances, can it be that the defendants petitioners can bypass the normal procedure and not avail remedies statutorily available to them, only to approach the High Court with this petition under Article 227 of the Constitution.
11. In objections filed it is stated that the defendant-petitioners before this Court have on summons appeared before the court and have even filed the written statement. Obviously the matter has to go to trial where factual matrix of the case for the reliefs sought in the suit is to be adjudicated in inquiry on evidence. The parties have full opportunities to meet each others case and place their respective stands before court to lead evidence. The suit is to be tried in accordance with the provisions of CPC. The code takes care of the interest of the parties so far as procedural fairness opportunities to meet each other case, lead evidence, and to place their respective contention before the court, are concerned. The trial court while dealing with the case under the Code, is acting within the para-meters of law. Against the orders passed by the trial court, the code provides remedies including appeal, revision, review etc. Even against ex-parte order passed by the trial court (Annexure-B) petitioners have more than one remedy available under the Code.
In Mohd. Yunis Khan v. Mohd. Mustaqum, AIR 1984 SC 38, it is observed:
'The supervisory jurisdiction conferred on the High Courts under Article 227 of the constitution is limited 'to seeing that an inferior Court or Tribunal functions within the limits of its authority, ' and not to correct an error apparent on the face of the record, much less an error of law, In this case there was in our opinion, no error of law much less an error apparent, on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction or did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227 the High Court does not act as an Appellate Court or Tribunal....'
In Miss Maneck Gustedji Burjarji v. Sarafaz Ali Nawab Ali Mirza, AIR 1997 (1) SCC 227 it is observed:
'It must be realized that the jurisdiction under Article 227 of the Constitution is an extraordinary Jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked...'
In A Venkatasubbiah Naidu v. S. Chellappan, AIR 2000 SC 3032, in the context of alternative remedy against an Order 39 Rule I CPC , the Apex court on the question of moving a petition under Article 227 of the Constitution observed:-
'Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle cart be put against the exercise of the Constitutional powers of the High court it is as well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned Single Judge need not have entertained the revision petition at all and the party affected by the interim exparte order should have been directed to resort to one of the other remedies... '
12. It is true that the exercise of constitutional powers by the High Court under Article 227 is well recognized principle. The High Court has exercised the powers and interfered to set-aside the orders of the trial courts, in circumstances, fully justifying such a course in cases where there has been error of jurisdiction or flagrant violation of laws, findings based on no evidence or where the findings are perverse, but it is equally judicially recognized principle that before approaching the High Court under the supervisory Jurisdiction, the court would direct the party to avail of the remedies available to him as pre-recourse to the constitutional remedies. Under Article 227 the Jurisdiction of the High Court is supervisory and not appellate. It does not enable the High Court to examine the correctness of a decision or decided what is proper view to be taken or order to be made. (See Mohan Amba Prasad Agnihotri's v. Bhaskar Balwan Aher, 2000 (3) SCC 190). Vaidivelu v. Sundaram 2000 (8) SCC 355 and Shama Prashant Raje v. Ganapatrao, 2000 (7) SCC 522.
In the aforesaid view of the matter, in my opinion in the facts and circumstances of the case, the suit and also suit proceedings and the ad-interim order passed by the trial court cannot be interfered with and much less quashed. There is no merit in this petition moved under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K; State. Dismissed.