MUHAMMED Vs. MOIDEEN HAJI

JUDGEMENT

(1.) The plaintiffs who lost the suit concurrently before the courts below are the appellants. The suit is of representative character. The dispute raised in the suit is as to whether religious discourse called 'Khutuba' in a mosque in connection with the juma prayer on Friday can also be in vernacular along with its essential ingredients in Arabic. In other words, whether the gathering can be addressed in local language during the course of the 'Khutuba' itself. There was a contention that this was not a matter for resolution by civil courts and therefore the suit was not maintainable. The Trial Court accepted that contention and held that such a dispute cannot be said to be "one which the Court is entitled to decide". As there was dispute on the issue among the members of the congregation, the Assistant Collector had initiated proceedings, M. C. 21/67, and had issued Ext. A1 order that 'A party' therein shall not interfere with the performance of 'Khutuba' in Malayalam in the mosque, namely Karakunnu Juma ath Mosque. Therefore, that order was challenged in the suit. Consequently, injunction was also prayed for to restrain conduct of 'Khutuba' in Malayalam. On these issues, the Trial Court found that the plaintiffs were not entitled to get such reliefs and that translation of the text of Khutuba is not against the principles of Islamic tenets followed by Shafi'i school of Muslims. The plaintiffs took the matter in appeal. The finding regarding the maintainability of the suit was reversed and the lower appellate court found the suit as framed maintainable. But, on the merit of the issue, after examining the evidence given by the religious pandit examined on behalf of the plaintiffs as PW 3 and also other documentary and oral evidence on record, the lower appellate court found that "plaintiffs have not established a practice of using Arabic Language alone in the performance of Khutuba" and the findings on that aspect rendered by the Trial Court were affirmed. Having thus lost the suit concurrently before the Courts below, the plaintiffs are challenging that concurrent decree in this Second Appeal mainly raising a substantial question of law,

(2.) The respondents have contended, as a preliminary objection, that the suit itself is not maintainable as these religious matters do not create any enforceable right to anyone and therefore, cannot be adjudicated as a dispute of civil nature. So, the suit itself was not maintainable. In the light of the decision of the Supreme Court in Most Rev. P. M. A. Metropolitan and Others etc. v. Moran Mar Marthoma & Anr. ( AIR 1995 SC 2001 ), this being a matter affecting the right to worship will certainly affect the civil right of the parties and is therefore a dispute of civil nature. The right to worship according to one's belief is a right available to any individual and therefore if the manner in which such right is exercised is interfered with by any other person or group, necessarily, it will give rise to a dispute of civil nature which can be adjudicated by a civil court by entertaining a suit. As held by the Supreme Court in the aforesaid case.

(3.) That the Muslims within the local limits of "Karakunnu juma ath mosque" follow 'Shafi'i madhab' is not disputed. Thus, both the plaintiffs and defendants are Sunni Muslims following 'Shafi'i Madhab'.