ABDUL WAHEED KHAN Vs. RAM BUX

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C., against a decree paused by the learned Civil Judge of Jaunpur on the basis of an award in the following circumstances : It appears that, during the Muharram in the year 1935, a dispute arose between some Hindu residents of the town of Kheta Sarai and the Muslim population about the route by which the tazia procession had to pass. One Ram Bux owned three houses which lay on that route. All those houses had balconies projecting on the lane underneath. The procession had to pass through that lane, but it appears that the balcony of one of the houses owned by Ram Bux caused an obstruction and the Muslim residents insisted upon that obstruction being removed for the purpose of giving a free passage to the tazias. An apprehension of a breach of the peace arose inconsequence of this dispute and a Police Officer was called to settle it. Ho eventually decided to remove a small portion of the balcony of Ram Bux's house in order to enable the Muslim residents to take the tazias through the lane. Ram Bux thereupon filed a suit in the Court of the Munsif, Shahganj, in which he claimed a declaration of his right to maintain the balcony of his house in its original form and also for damages and an injunction. These reliefs were claimed against the Secretary of State for India, the Police Officer, who had removed a portion of the balcony, as stated above and four Mahomedans at whose instance the Police Officer was alleged to have acted. There was one more defendant in the suit described as "the Muslim residents of the town of Kheta Sarai" through the four Muslim defendants already referred to.

(2.) Having instituted the suit in this form Ram Bux proceeded to make an application under Order 1, Rule 8, asking the Court's permission to implead all the Muslim residents of Kheta Sarai as defendants in the suit through the four Muslim defendants as their representatives. It was clearly stated in this application that he wanted a decree to be passed against all the Muslim residents of Kheta Sarai who were consequently very necessary parties to the suit. The suit was resisted on various grounds with which we are not concerned here. The fact remains that it was almost wholly decreed by the first Court. Being aggrieved by that decree, two out of the four Mahomedans, who had been impleaded in the suit not only in their personal capacity but also as the representatives of the Muslim community of Kheta Sarai in general filed an appeal. They are the two applicants in this Court, namely Abdul Waheed Khan alias Munnu Khan and Qazi Nazirul Hasan. The plaintiff and all the other defendants in the suit, including defendant 7, the Muslim residents of Kheta Sarai, were impleaded as respondents in the appeal. During the pendency of the appeal on 4 November 1936, the counsel of the parties made a statement before the Court which amounted to an application for a reference to arbitration. The last portion of that statement raises an important question for consideration in this case and runs as follows: Let all the parties, on whose behalf no vakalatnama has been filed in any one of the two appeals be exempted from the appeals.

(3.) It may be mentioned here that, in answer to the suit filed by Ram Bux, which has been referred to above, a Muslim zamindar of Kheta Sarai, named Ashfaq Ahmad, brought a suit against Ram Bux and other members of his family in which it was claimed that the balconies of the three houses, owned by Ram Bux, constituted an encroachment upon the plaintiff's land, and were liable to be removed along with certain other constructions made by Ram Bux. That suit was for the most part, dismissed, by the first Court, and Ashfaq Ahmad had appealed from that decree.