JAFFAR HUSAIN KHAN SAHIB Vs. KRISHNAN SERVAI

JUDGEMENT

(1.) The plaintiffs are representative Muhammadans of Lalgudi and neighbouring villages. They sued for a declaration that they are entitled to carry on public worship in the suit- mosque, at hours stated by them, undisturbed by Hindu processions of music, or playing of music in the adjoining Pilliar Kovil, and they sued further for an injunction restraining the defendants who are representative Hindus of these villages, from so disturbing their worship. Both the Lower Courts have dismissed the suit and the plaintiffs appeal.

(2.) Although the plaint prayer is indefinite as to the period of time for which the plaint relief is desired, the plaintiffs learned Advocate stated at the Bar that the plaint case relates to the period of the Mari Amman festival. The plaintiffs claim that the relief they seek for was in effect granted in a former suit filed by the Hindus against the Muhammadans to set aside the G.O. restraining the Hindus from playing music in front of the suit mosque during stated hours of the day at the time of the Mari Amman festival. The decree in that suit was in favour of the Hindus, but the plaintiffs argument is that the point on which they now seek relief must be taken to have been decided against the Hindus in the former suit, either because it was there specifically sought for and refused, or because it ought to have been sought for and was not. They thus claim that on this point there is a matter of constructive res judicata, and that the Lower Courts have on this point committed an error of law.

(3.) The former suit was O.S. No. 226 of 1911 and ended in the High Court in S.A. No. 112 of 1914. The judgment and decree in the former suit are Exhibits IT and H-l. It was finally decided by the High Court that the scope of that suit was confined to music at a medal which was in the public street in close proximity to the mosque, and to the alleged interference with the mosque worship which the playing of music at that medai during the Mari Amman festival occasioned. The High Court decided that the Hindus have the right of celebrating the Mari Amman festival at the medai "without any restriction as to the time of playing music." That would seem to be a decree entirely in favour of the Hindus, but the plaintiffs here claim that it must be taken that the Hindus have no other right of playing music during the Mari Amman festival than that which has been declared by the High Court because if any such further right existed, it was either implicit in the subject-matter of the former suit or ought to have been made the subject-matter of that suit. I am unable to accept that argument. As to the first contention it is not open to the plaintiffs, since they themselves in the former suit contended that that suit was confined to playing at the medai and that even the right to take the procession with music past the mosque was not included there, and on that very ground they persuaded the High Court to modify the decree of the Lower Appellate Court. It is not open to them now to turn round and say that any others matter was included in the former suit. As to the contention that it ought to have been made the subject-matter of the suit I find no substance in this either. The cause of action in the former suit was based on a definite Government Order which infringed the present defendants rights of playing music at the medai in the public street. On that point they succeeded. The Government Order did not touch the general right of playing music in the public street or inside the Pillaiar Kovil which is made the subject-matter of the present case. It was not incumbent on the Hindus in the former suit to seek for a relief which had not been denied to them by the Government Order which formed their cause of action. I, therefore, cannot find that the plaintiffs present claim can be based on any theory that the rights now claimed by the Hindus were denied to them in the former suit. .