MOHAMMAD JALIL KHAN Vs. RAM NATH KATUA

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for a declaration that the plaintiffs along with the other Hindus of Bahadurganj are entitled to conduct their processions, both social and religious, on all the streets and thoroughfares, playing music with other religious ceremonies according to their natural rights as well as customs of their community in the usual manner, past the sites occupied by the Juma Mosque and other mosques of the village as freely as they do at any other place, and that the defendants have no right to offer obstruction or to prevent them from doing so at any place therein. The plaintiffs allege that they have been celebrating their festivals from time immemorial and have been conducting processions accompanied with music and other religious observances, that the defendants in 1924 stopped the plaintiffs from playing music in their processions near their mosques and moved the Sub-divisional Magistrate who issued a notice under Section 144, Criminal P.C., that there were some compromises and several orders issued by the Sub-divisional Magistrate restricting the plaintiffs right to take out their processions, that the cause of action accrued when the defendants applied to the District Magistrate for action and on subsequent dates when proceedings under the Criminal Procedure Code were taken. Several written statements were filed, but their purport is the same that the suit for the declaration was not maintainable and the plaintiffs had no cause of action, that the Magistrate's orders were administrative to avoid breach of the peace and the plaintiffs could not question them without impleading the Secretary of State, that the plaintiffs were estopped from going behind the terms of three previous compromises, that the processions are innovations and that the customary religious ceremonies are not what are alleged by the plaintiffs but are those stated in para. 13 of the written statement that no music was in the past played before mosques and that the noisy demonstration of the processionists is a. public nuisance as recognized by law and a declaration of an unlawful act cannot be granted by the Court.

(2.) The learned Subordinate Judge held that the plaintiffs have a right to conduct their civil and religious processions through the public streets of Bahadurganj. past the various mosques, without interfering with the ordinary use of such streets by the public and subject to such-directions as the Magistrate may lawfully give to prevent obstruction or breach of the public peace, and that accordingly he was not called upon to decide whether these festivals were an innovation or otherwise. He further held that as the defendants had offered obstruction it was not necessary for the plaintiffs to implead the Secretary of" State; that the three compromises relied upon by the defendants had really not-been acted upon and some of the defendants themselves had resiled from them. He also found that the last compromise-was entered into during the pendency of criminal proceedings under Section 107, Criminal P. C, and was not of a binding nature and that these compromises were not entered into in a representative character and Schedule 2, para. 18, Civil P.C., was not applicable. Lastly he held that the plaintiff's festivals did not interfere with the civil fights of the defendants and they cannot prevent the former from conducting their processions subject to such directions as the Magistrate may lawfully give. He accordingly gave the plaintiffs a declaration in the following form: The plaintiffs along with other Hindus, the inhabitants of Qasba Bahadurganj do take out their religious and social processions along the thoroughfare and the public street passing the Jama Masjid and other mosques in Qasba Bahadurganj in this way that the public be not in any way disturbed in using the thoroughfare and the public street and also subject to those orders which may be passed by the Magistrate in accordance with the regulation of traffic on the thoroughfares for preventing obstructions and breach of peace.

(3.) The defendants have come up in appeal and on their behalf it has been urged by Mr. O Conor that: (1) the plaintiffs cannot be allowed to conduct their processions with music at the time of prayers so as to disturb the Muslim prayers in the mosque, (2) that they are not entitled to the declaration which has been given; and (3) that they are bound by the previous compromises.