RiyazuddIn Ahmed S/O Mohammad Sayeed and ors. Vs. Tayyab Razak Chimthanwala - Court Judgment

Excerpt:
constitution - dismissal - sections 9, 9a and order 7 rule 11 of code of civil procedure, 1908, section 42 of specific relief act and articles 25 (1) and 26 of constitution of india - lower court rejected plaint under order 7 rule 11 holding suit not maintainable under section 9 - appeal against order - facts revealed suit did not involve right of civil nature - suit involved dispute of purely religious nature - suppression of material facts by appellant - application for injunction was not maintainable under section 42 of specific relief act - held, appeal liable to be dismissed. - - 12. the nature of injunction which is sought, would be directly in conflict with the freedom enjoyed by the defendant in view of the provisions of article 25 of the constitution of india which gives every person, freedom to profess, practice and propagate any religion he believes in.s.k. shah, j.1. heard shri khamborkar, shri habibuddin ahmed, learned counsel for appellants and shri manohar, learned counsel for the respondent.2. the original plaintiffs have filed this second appeal against the order passed by the 6th additional district judge, nagpur on 13-12-1999 in regular civil appeal no. 448/1999 dismissing the plaintiff's appeal filed against the order passed by the 6th joint civil judge, jr. division, nagpur on 17-8-1999 rejecting the plaint under order 7, rule 11(d) of civil procedure code inter alia holding that the suit was not maintainable under the provisions of section 9 of c.p.c..3. the brief facts leading to the present appeal are as under :-the plaintiffs filed a suit claiming decree of perpetual injunction against the defendant and his followers restraining them from publicly and socially claiming that they are muslims. the plaintiffs 1 and 2 belong to 'sunni' sect and the plaintiff no. 3 to the 'shia' sect muslim community. they believe in prophet hood of mohammad and the various religious tenets and also the holy quaran. they practice islamic preaching of the religious heads and quaranic tenets. they believe in unity of god. they believe in holy quaran as the word of god reaching to the human being through the prophet mohammad and also believe that every muslim is ordained to kalma, namaz, roza, zakat and haj in the manner prescribed by quaranic tenets.4. the plaintiffs alleged that the defendant claims himself to be 'imam' of kashf of a group of persons who claim to be daudi bohras.5. the plaintiffs filed the aforesaid suit alleging as under :-1. according to the defendant and his followers, it is redundant to offer namaz and to observe roza, to give zakat, to perform haj and other religious practices. the plaintiffs alleged that such activity of the defendant and his followers is derogatory and amounts abrogation of shariat of prophet mohammad. they also further alleged that there is no authenticated religious script which can substantiate the claim of the defendant.2. the plaintiffs alleged that the muslim people who felt aggrieved by the aforesaid belief of the defendant and his followers, had made a reference to the religious scholars and got fatwas in reply saying that such persons have no right to call themselves 'muslims'.3. the plaintiffs further alleged that the defendant caused to publish his interview in the monthly 'islamic voice' for the month of september 1998, reiterating his above views. the plaintiffs further alleged that thereafter the situation became tense and the muslims generally religiously and mentally hurt.4. the plaintiffs further alleged that in the month of december, 1998, the defendant caused to be published again very derogatory statements in the official publication of jamat known as 'isbat-e-kashf' hurting the feelings of the muslim in general. they alleged that some statements were as; 'quaran is a lifeless book', 'hajare aswad is speechless, dumb and blind' and 'that the time of shariat of prophet mohammad has ended'.5. the plaintiffs further alleged that the defendant on oath claimed that he and his follower do not believe in 'zahir namaz' but believe in 'batini namaz'.6. by making these allegations, the plaintiffs claimed that the defendant had no right to claim to be a muslim and, therefore, filed the aforesaid suit.7. the defendant filed an application under section 9(a) read with order 7, rule 11 of civil procedure code contending that the suit as framed is not maintainable; that the suit is not of civil nature and it is purely of religious nature and directly abrogating the defendant's right under articles 25(1) and 26(b) of the constitution of india; that the suit is also barred by the provisions of section 42 of the specific relief act. by way of additional grounds, the defendant also claimed that the plaintiffs had suppressed material fact of dismissal of their writ petition filed in the high court making out the similar allegations wherein this court held that there was no nexus between the defendant and the alleged offending portion of the publication 'isbat-e-kashf' and, therefore, found that there was no scope of grant of any relief in favour of the petitioners who are the plaintiffs.8. in view of this, the learned trial court framed preliminary issues about maintainability of the suit and the court having jurisdiction to entertain the suit. the trial court answered both the issues in negative holding that the suit did not involve any right of civil nature and that it involved a dispute of purely of religious nature. the trial court also held that there was suppression of the material fact by the plaintiffs and, therefore, the plaintiffs have not come with clean hands and his suit is not maintainable. the trial court also held that the suit being simpliciter for injunction, was not maintainable in view of the provisions of section 42 of the specific relief act. the plaintiffs challenged the aforesaid orders in regular civil appeal no. 448/1999 but the appellate court also confirmed the findings of the trial court and dismissed the appeal. it is against that order, the present second appeal has been filed.9. it is vehemently submitted on behalf of the petitioners that in view of the findings of the apex court in the case of most rev. p.m.a. metropolitan and others v. moran mar marthoma, reported in : air1995sc2001 , the civil courts has jurisdiction under section 9 to decide the religious matters and, therefore, finding of both the courts below was wrong.10. as against this, it is vehemently submitted on behalf of the respondent defendant that the suit is purely of religious nature and does not involve any infringement of right of plaintiffs which is of civil nature and, therefore, the suit is not maintainable. 11. therefore, it is necessary to see whether the suit can be entertained in view of provisions of section 9 of c.p.c. the section 9 of c.p.c. reads as under:-'9. courts to try all civil suits unless barred.---the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. (explanation i) : a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.(explanation ii) : for the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in explanation i or whether or not such office is attached to a particular place.'in view of the provisions of section 9, the civil court has jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. explanation i makes it clear that a suit in which the right to property or to an office is contested is a suit of a civil nature, no matter whether such right depends entirely on the decision of questions as to the religious rites or ceremonies. explanation ii further clarifies that it is immaterial whether or not any fees are attached to the office referred to in explanation i.thus, the plain reading of this provision and the explanation i and ii reading conjointly indicates that a suit in which the right to property or to an office is contested is a suit of a civil nature, no matter whether such right depends purely on the decision of questions of religious rites or ceremonies and no matter whether the office attracts fees or not. it, therefore, basically requires that there should be a suit in which the right to property or to an office is contested is a suit of civil nature. if such a right involves decision of questions as to religious rites or ceremonies then such suit is maintainable even though it entirely depends on the decision of questions as to religious effect but basically the right to property or to an office has to be at the basis for filing such a suit. the present suit does not indicate such civil right having been existing with any of the plaintiffs in holding any office so that the suit has to be entertained although it involves decision as to the religious aspect. from the allegations that are made in the plaint, it is clear that the plaintiffs are having particular religious belief on the basis of holy quaran and the defendant does not have those beliefs and he also does not preach those beliefs but have different beliefs and preaches different beliefs to his followers which, according to the plaintiffs, is not a quaran. therefore, the question which would arise for decision in this suit would be purely of religious nature.12. the nature of injunction which is sought, would be directly in conflict with the freedom enjoyed by the defendant in view of the provisions of article 25 of the constitution of india which gives every person, freedom to profess, practice and propagate any religion he believes in.13. a vehement submission was made on behalf of the appellants that the apex court in judgment cited supra took a view that civil court has jurisdiction to decide even religious matter. however, that submission is not acceptable because the apex court was considering the dispute with regard to the office and in deciding the right to an office, the matter relating to the religion was required to be decided. this could be seen from the very first paragraph of the said judgment pronounced in minority on which reliance is placed mentions as under:'turning away sorrowful is the long and short of this litigation between two rival groups of jacobite christian community of malabar which has been going on for more than hundred years apparently for religious and spiritual supremacy over the church but really for administrative control and temporal powers over vast assets which have accumulated out of 3000 star pagodas created in trust in 1808 for charitable purposes by one moran mar marthoma vi popularly called 'dionysius the great'.the matter, therefore, related to the contrary claims to the administration of the jacobite syrian church which was based on the particular religious belief and, therefore, the religious belief was held to be the subject over which the civil court will have jurisdiction to exercise under section 9 of c.p.c.14. in the instant case, the plaintiffs have not claimed any right of a civil nature to be existing in them so that infringement of which they can challenge by way of the suit.15. as regards other points, the courts below have given findings that the instant application for injunction in the present form is not maintainable under section 42 of the specific relief act, also i find myself in agreement with.16. under these circumstances, i do not find anything illegal in the view taken by both the courts below. consequently, i do not find any substance in this second appeal and the same therefore, deserves to be dismissed and it is accordingly dismissed.