ORDER
1. The petitioner, who is a third party to the suit proceedings in O.S. No. 338 of 1992 on the file of the District Munsif of Pattukottai has filed the above civil revision petition under Art. 227 of the Constitution of India against the ex parte decree passed by the said Court granting permanent injunction restraining any other mosque except the mosque in Adhiramattinam from conducting Jumma prayers, which according to him is patently without jurisdiction. According to the petitioner, the District Munsiff, Pattukottai did not have any jurisdiction to even pass such a decree which has resulted in seriously interfering with the religious rights of the petitioner and several members of the Muslim community living in Adhirama-pattinam Town.
2. In order to appreciate the facts and circumstances leading to the filing of the
above civil revision petition, the petitioner states that it is the practice of every Muslim to offer prayer five times daily and the Muslims used to offer ‘Jumma prayers’ in the mosque in and around the locality, where they live. The respondents 2, 3, 4 and 5 are at present controlling the mosque situate in Adhirama-pattinam and attending to the said mosque for prayers as well. The respondents 2 and 3 instituted O.S. No. 338 of 1992 with a strange prayer seeking for permanent injunction restraining respondents 4 and 5 from in any way converting the Pallivasal situate in Beach street, Adirampattinam or in any other Pallivasal in Adirampattinam as Jumma Pallivasal except the suit Pallivasal. Thus, in effect the respondents 2 and 3 wanted the prayer of permanent injunction from a civil court from using any mosque in the town of Adhirampattinam for Jumma prayers on Fridays. The first respondent viz., the District Munsiff granted ex parte interim injunction on 9-4-1992 in I. A. No. 437 of 1992 in which the order passed reads as under:
“The respondents are hereby restrained with or by yourself or by your agents servants or assigns from in any way converting the Pallivasal situate in Beach Street, Adhiram-pattinam or in any other Pallivasal in Adhirampattinam as Jumma Pallivasal except the suit Pallivasal pending further orders on this petition till 24-6-1992.”
The said application and the suit were posted on 24-6-1992 and on the very same date since the defendants/respondents were absent, the District Munsif proceeded to pass an ex parte decree granting the decree of permanent injunction restraining conversion of any mosque including the mosque situate in Beach Street, Adhirampattinam or any other Pallivasal as Jumma Pallivasal except the suit Pallivasal and decreed the suit as prayed for.
3. The petitioner and other members of the Muslim community were unaware about the order and taking advantage of the ex parte decree respondents 3 to 5 started preventing Jumma prayers to be conducted in any mosque in Adhirampattinam and also resorted to giving police complaint that no other mosque should conduct Jumma prayers
stating that there was decree in their favour by which all mosques in Adhirampattinam town were prohibited from conducting the Jumma prayers on Fridays.
4. According to the petitioner, the District Munsiff was seriously in error and exceeded his jurisdiction in passing the decree in a suit of the nature filed by respondents 2 and 3. According to the petitioner, inasmuch as the order of the first respondent District Munsif is clearly lacking in jurisdiction vitiated by several flagrant errors of law both substantive and procedural, the petitioner has no other effective alternative remedy except to file the above civil revision petition invoking the extraordinary jurisdiction of this Court under Art. 227 of the Constitution of India.
5. The civil revision petition was admitted by Srinivasan, J. on 6-8-1992. Learned Judge has also granted interim stay of the operation of the Decree dated 24-6-1992 in O. S. No. 338 of 1992 on the file of the District Munsif, Pattukottai and all proceedings pursuant thereto pending disposal of the main civil revision petition in C.M.P. No. 10339 of 1992. To vacate the interim stay granted in the above C.M.P. No. 10339 of 1992, and to dismiss the C.R.P. with their costs, the respondents 2 and 3 have filed C.M.P. No. 10671 of 1992. When the matter came up before me for orders, by consent of both parties, the parties were asked to address arguments on the main civil revision petition itself and by consent of both parties, the main civil revision petition itself was taken up for final disposal.
6. I have heard Mr. Mohan Parasaran on behalf of the revision petitioner and Mr. S. M. Abdul Wahab on behalf of the contesting respondents 2 and 3, who are the plaintiffs before the District Munsif, Pattukottai. Mr. S.M. Abdul Wahab raised the question of maintainability of this revision petition under Art. 227 of the Constitution of India. According to him the extraordinary remedy of moving this Court under Art. 227 of the Constitution of India should not be resorted to if other remedy is available, even though presuming that remedy involved inconvenience and delay. Mr. Mohan Parasaran learned counsel appearing for the revision petitioner in reply to the said arguments submits that this court has ample jurisdiction to entertain the present revision under Art. 227 of the Constitution of India. This is because the order under challenge in the revision could not at all have been granted or passed by the civil court which concerns the religious rights of parties and affecting the valuable religious rights of parties without the affected parties or the mosque having been not made parties before this Court. He further submits that the relief sought for by the plaintiffs viz., respondents 2 and 3 herein in the trial Court could not at all be granted in the first instance, because firstly the civil Court cannot grant such relief inasmuch as the reliefs prayed for were clearly outside the purview of S. 9 of the Code of Civil Procedure, secondly the reliefs are directly in conflict with the valuable fundamental rights of various Muslims residing in Adhirampattinam town who are compelled to go to a particular mosque for Jumma prayer when they are not parties which directly infrings Arts. 25 and 26 of the Constitution of India; thirdly the Civil Court cannot decide religous rights and fourthly an ex parte collusive decree cannot determine the rights of persons, who are not parties to the suit more particularly when the suit has not been filed impleading necessary parties or in a representative character. In view of these grave irregularities and abuse of process of Court, the jurisdiction of this Court could be very well invoked under Art. 227 of the Constitution of India, which cannot be curtailed at all.
7. I have carefully considered the above submission of Mr. Mohan Parsaran and I am of the view that Mr. Mohan Parsaran is very right in his submission and in my opinion, the above civil revision petition filed under Art. 227 of the Constitution of India can very well be invoked by the present petitioner, who is a third party to the civil suit on the file of the District Munsif, Pattukottai. That apart, the decree now passed by the District Munsif, Pattukottai is an ex parte decree which cannot determine the rights of persons who are not parties to the suit, more particularly
when the suit has not been filed impleading necessary parties or in a representative character. The plaintiff has not obtained prior permission under O. I, R. 8 of the Civil P.C. before filing the suit. In view of all these grave irregularities, I am of the view that the petitioner can approach this Court and this Court in turn has ample jurisdiction to entertain the present revision under Art. 227 of the Constitution of India. In fact, the office has raised the question of maintainability of the present civil revision petition and the question of maintainability has been properly explained and thereafter the matter was numbered by this Court and posted before the Hon’ble Mr. Justice Srinivasan, who in turn admitted the civil revision petition and granted interim stay on 6-8-1992. I am also of the view that a revision under Art. 227 of the Constitution of India being an extraordinary power could be invoked by any person aggrieved by any decision or action of any Court which is subject to the Superintendence of this court. The petitioner in this revision is gravely aggrieved by the order of the District Munsif’s Court Pattukottai which cannot be granted by any civil Court, which on the face of it, is a flagrant error in the exercise of jurisdiction resulting in serious prejudice to the religious rights of Muslim living in Adhirampattinam to compulsorily do the Friday Jumma prayer in one particular mosque. This in my view interferes with the religious rights. I am of the view that the determination of religious rights cannot be done by a civil Court and it has been done in a suit not filed in the representative capacity nor in a suit where all the affected parties were before this . In my view, the District Munsif Court, Pattukottai lacked jurisdiction to entertain the matter. The petitioner who was not a party can maintain the revision since the petitioner is aggrieved and consequently the revision under Art. 227 of the Constitution of India is maintainable even against final determination in a suit and more particularly in a case like this, where the suit has been decided ex parte on the very first hearing decreeing the suit when interested parties were not before the Court and when the jurisdiction of the Court was obviously not there, when arbitrary dismissal of a suit
for default is amenable to review under Art. 227 of the Constitution of India, which has wide powers to supervise all Courts by the High Court in the State of Tamil Nadu which not only can interfere with the interim orders, but also final orders. Hence the petitioner’s petition is maintainable under Art. 227 of the Constitution of India because any person who is likely to be affected or has been affected by the order is entitled to make an application under Art. 227 of the Constitution of India Hence, I reject the contention of Mr. S.M. Abdul Wahab and hold that the petition filed by the revision petitioner under Art. 227 of the Constitution of India is maintainable because any person who is likely to be affected or has been affected by the order is entitled to make an application under Art. 227 of the Constitution of India. Mr. Mohan Parasaran submits that the ex parte decree passed by the District Munsif, Pattukottai granting permanent injunction restraining any other mosque except the mosque in Adhirampattinam from conducting Jumma prayers is patently without jurisdiction and that the decree passed by the District Munsif Court is vitiated by fraud played on the Court by the respondents, which the Court ought to have easily inferred from the conduct of the parties. He further submits that the Judgment and decree suffer from several errors of law both substantive and procedural which could not have been passed by a civil Court in the first instance even though the parties viz., the defendants remained ex parte. The District Munsif, Pattukottai has also erred in immediately passing an ex parte decree on the very same date when the suit was posted for trial after an order of interim injunction on 9-4-1992. The very fact that the respondents 4 and 5 were absent both at the time of filing the suit and subsequently show that they were colluding with respondents 2 and 3 in order to prejudice the valuable rights of other members of the Muslim community including the petitioner in Adhirampattinam. Mr. Mohan Parasaran submits that the petitioner has already been put to serious prejudice and hardship in view of the ex parte decree in the nature as stated above and that he has made out a prima facie case to ultimately succeed in
the revision petition. In concluding his argument Mr. Mohan Parasaran submits that Art. 26 of the Constitution of India has ganted fundamental right to every religious denominations or section thereof, to establish/ maintain institutions for religious and charitable purposes and the relief sought for by the respondents 2 and 3 virtually interfere with the fundamental rights of the petitioner and similarly situate members of the Muslim community in the town of Adhirampattinam and as a consequence of the order, the petitioner and the other members of the Muslim community cannot go and pray in any other mosque in Adhirampattinam except the suit mosque, thereby compelling the petitioner and other against their wishes to go only to a particular mosque controlled by respondents 2 and 3 and the relief ought not to have been granted by the civil Court, when necessary parties were not before the Court nor was the suit filed in a representative character representing all the members of the Muslim community in Adhirampattinam. I am very much impressed with the above argument of the learned counsel for the revision petitioner for the reasons mentioned in his argument. Art. 25 of the Constitution of India gurantees that every person in India shall have the freedom of conscience and shall have the right to profess, practice and propagate religion, subject to restrictions imposed by the State on the following grounds viz.
(i) public order, morality and health;
(ii) other provisions of the Constitution;
(iii) regulation of non-religious activity associated with religious practice;
(iv) social welfare and reform;
(v) throwing open of Hindu religious institutions of a public character to all classes of Hindus.
Since the freedom belongs to every person, the freedom of one cannot encroach upon a similar freedom belonging to other persons. Subject to the restrictions which Art. 25 of the Constitution of India imposes, every person has a fundamental right under the Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. Art. 26 of the Constitution of India guarantees certain rights to every religious denomination, subject to ‘public order’, morality and health, and the rights are capable of being enforced by or on behalf of a denomination. While Art. 25 extends to all persons, Art. 26 is confined to religious denominations. Hence, there is no anomaly in the fact that the rights under both Arts. 25 and 26 are subject to public order, morality and health. Art. 25 is also subject to other provisions of Part III. This clause guarantees to each religious denomination the right to manage its domestic affairs in matters which are concerned with religion and the State cannot interfere in these affairs unless the denomination so exercises its right as to interfere with public order, morality or health.
8. Mr. S.M. Abdul Wahab, learned counsel who appeared for the contesting respondents next contended that as per the tenets of Shafi Imams the Jumma worship must be conducted in a town or village in the mosque, that the Fathiwas from various renowned religious schools were produced before the District MunsiPs Court, Pattukottai in support of the aforesaid contention and that the order of the District Munsif, Pattukottai is only to protect the religious rights of all Shafi Muslims residents in Adhirampattinam. He further submits that from time immemorial for more than four hundred years the religious practice in Adhirampattinam is to conduct the Jumma prayer only in the Jumnia Mosque situate at West Street and that the attempt of the petitioner and his men to conduct the Jumma prayer in Beach Street Mosque is an inroad upon the time honoured customary right sanctioned by Shafi Imams. He further submits that the civil Court was moved to adjudicate the customary right whcih has acquired a status of the civil right. According to Mr. Abdul Wahab the contention of the petitioner that the civil
Court has no jurisdiction to issue the order of injunction is untenable. According to Mr. Abdul Wahab the suit has been filed by the plaintiffs as residents of Adhirampattinam and not as persons in the management of the Jumma mosque, that during 1990 a committee of Construction was constituted by all the Jammaths of Adirampattinam giving representation to all the Jamaths controlling the 14 mosques in Adhirampattinam, that the President of Beach Street mosque and the Secretary of the said mosque were also members in the construction committee of the Jumma Mosque and that the petitioner after becoming a member of the Construction Committee of the Jumma Mosque, on account of some personal animosity between himself and the president of the construction committee has started creating troubles and disunity among the residents of Adhirampattinam. He emphatically denied that there is any collusion between the plaintiffs and the defendants in the suit, that the interim order was granted on 9-4-1992 and that the suit was posted after the notice was served on the defendants and that too after a period of more than two months and the suit was decreed ex parte, as the defendants were not present after service. He also denied the other allegations as false and mischievous the allegation that the plaintiffs and other members of the Muslim community were unaware about the order. Supporting the Judgment of the District Munsif Court, Pattukottai, Mr. Abdul Wahab submits that the District Munsif has not exceeded his jurisdiction, on the other hand he has granted a decree by way of enforcing their constitutional rights, that the District Munsif’s Court is not lakcing in jurisdiction and that the Judgment of the District Munsif is not vitiated by several flagrant errors of law and procedure, as alleged by the revision petitioner. In answering the contention of Mr. Mohan Parasaran with reference to S. 9 of the Civil P.C., Mr. Abdul Wahab submits that no Muslim has inherent right to conduct Jumma prayers, that as per Shariad and tenets of Shaffi Imam Jumma prayers can be conducted in one mosque only in a village, town or city, that all the mosques in a village, town or city are not
automatically eligible to conduct Jumma prayers, that the Muslims belonging to Shaffi sect has no religious right that he can perform Jumma prayer in any mosque he likes and that it is controlled and limited as aforesaid. According to Mr. Abdul Wahab, the questions involving religious matters have got to be decided by Kazi and that they are not now empowered to adjudicate upon religious issues and since the civil Courts have taken over the place of Kazis for which the parties are entitled to move the civil Courts also for enforcing their religious rights, assuming but not admitting that the rights sought to be enforced in the present suit is only a religious right and not a fundamental or customary right enshrined in the Constitution. It is also the customs and practice for more than four hundred years the residents of Adhirampattinam had been offering their prayers in the Jumma mosque on every Friday. Since an attempt was made to convert the Beach Street Mosque as Jumma Mosque, the plaintiffs have impleaded the President and a member of the Beach Street mosque Managing Committee as parties viz., the defendants in the suit. In concluding his arguments Mr. Abdul (sic) No prejudice or hardship has been caused to the petitioner or to individual members of Muslim community in Adirampattinam. The petitioners have not made out a prima facie case in this revision and the grievance of the petitioner is only imaginary and hence both the main revision petition as well as the stay petition have to be dismissed with their costs.
9. In my opinion, the suit is not properly framed. Proper and necessary parties have not been impleaded. The plaintiffs have also not filed an application under Order I, Rule 8 of the Civil P.C. to sue or defend for and on behalf of all the persons. The provisions of Order I, Rule 8 of the Civil P.C. are designed to save time and expense and to ensure a convenient trial of questions in which a large body of persons are interested while avoiding at the same time mulitiplicity of suits and consequent harassment to parties. The basis of the rule is that persons other than those on the record are not parties to the suit in the full sense of the term. Although they may be bound by the decision passed in so far as it
affects the common interests of the entire body of persons interested in the suit, they cannot be personally bound by the decree unless they are actually impleaded as parties to the suit. The principle underlying the rule is that the suit should be constituted into a representative suit to prevent the defendant from being vexed and molested by other similar suits by other persons of the body. But in the instant case, the plaintiffs have filed the suit only against the defendants 1 and 2 viz., respondents 4 and 5, who remained ex parte not only before the lower court but also before this Court. They were impleaded only n their individual capacity. The prayer is also very wide and the injunction sought for was granted by the District Munsif, Pattukottai restraining not only the defendants in the suit from converting the Pallivasal situate in Beach Street, Adhirampattnam or any other Pallivasal in Adhirampattinam as Jumma Paliivasal except the suit Paliivasal. In my view such a wide prayer cannot be granted in the absence of all the necessary and proper parties and if at all the decree will be binding only on the defendants, who remained ex parte before the lower court. In any sense, the decree will not bind the present petitioner or any other person in Adhirampattinam or on any members of any other Paliivasal in Adhirampattinam. The decree will only be binding on the defendants. When once the permission of the Court under Order I, Rule 8 is not obtained that is fatal to the case and the decree will not be binding on the other persons representing the other Paliivasal in Adhirampattinam.
10. Mr. Mohan Parsaran, in support of his contention has cited a decision reported in Md. Wasi v. Bachchan Sahib , whereunder the Special Bench of the Allahabad High Court held as under:
It is now settled that at page All 73:
(1) a mosque is dedicated for the purpose that any Muslim belonging to any sect, can go and say prayers therein;
(2) it cannot be reserved for Muslims of any particular denomination or sect;
(3) No one can claim to have the form of congregational prayer usually said in a mosque altered to suit him;
(4) even though the congregational prayers are said in a mosque in particular form any Muslim belonging to any other sect can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything mala fide to disturb the others;
(5) the object of the dedication can neither be altered nor the beneficiaries limited or changed; and
(6) a Muslim will have a cause of action if he is deprived of his right to say prayers in a mosque or is prevented from doing so.
In a suit brought in a representative capacity by certain Sunnis claiming to be in possession of a Mosque, against the Shias of the locality, a permanent injunction was prayed to be issued to the effect that the Shia Muslims of that locality should not decorate Tabut or Gahwara in the said mosque and take out their procession from the said mosque nor should they do Matam therein.
Held that the suit must fail on the ground that though the plaintiffs were objecting to certain functions and ceremonies held in the mosque at the instance of the defendants, they themselves had been performing other ceremonies which might be equally objectionable to others, and from the evidence it was clear that the mosque had been used for taziadari etc., from its very inception; and that Gahwara ceremonies had been performed therein for the last forty years or more and that Shias as also some Sunnis had been taking part in it.”
It is also useful to extract paragraph 32 of the above decision, which occurs at page 73 of the above Judgment:
From all the authorities cited above, it would appear that it is now well settled that
(1) a Mosque is dedicated for the purpose that any Muslim belonging to any sect can go and say prayers therein;
(2) it cannot be reserved for Muslims of any particular denomination or sect;
(3) no one can claim to have the form of congregational prayer usually said in a mosque altered to suit him;
(4) even though the congregational prayers are said in a mosque in a particular form any Muslim belonging to any other sect can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything mala fide to disturb the others;
(5) the object of the dedication can neither be altered nor the beneficiaries limited or changed; and
(6) a Muslim will have a cause of action if he is deprived of his right to say prayers in a wherein mosque or is prevented from doing so.”
Mr. Mohan Parasaran next cited the following decision reported in Amir Hussain Shah it v. Hafiz Ghulam Rasul, AIR 1936 Peshawar is held as under at page 65 :
“Every Mohomedan has right to say his prayers in any mosque and behind the regular imam provided he does not disturb or interrupt other worshippers. A particular sect is not however entitled to have a separate call of prayer made or to hold a separate congregation behind an imam of their own, as it would lead to insurmountable difficulties and continual friction
The declaration that certain persons are entitled to say their prayers in a particular mosque cannot however be refused merely on account of the fact that to grant such a declaration would lead to a breach of peace. A person is not to be prevented from exercising a legal right merely because other persons object to his doing so.”
11. The decision reported in Kunhalavi Musaliar v. Abdulla, was cited by Mr. Abdul Wahab. The above case was filed by the Muslims for a declaration that the Musalmans of Alanellur are entitled to conduct Jumma prayers in the mosque scheduled to the plaint and to restrain the defendants from interfering with the
plaintiffs in the exercise of the above right. In the instant case, permission under Order I, Rule 8 of C.P.C. was not obtained by the present petitioner/plaintiff and the suit was only against two indviduals. That apart the present suit has been filed only for a bare injunction restraining the defendants from offering Jumma prayer in any other Pallivasal except the suit Pallivasal. The prayer for the declaration was not asked for in the present suit. That apart, proper and necessary parties were also not added as defendants in the suit. Hence, the decision cited by Mr. Abdul Wahab reported in Kunhalavi Musaliar’s case is not applicable to the facts and circumstances of the present case.
12. I have carefully considered and analysed the various contentions raised by both the learned counsel. The fundamental right guaranteed under the Constitution of India pertaining to a religion cannot be waived by any person as laid down by the Honourable Supreme Court of India because the fundamental rights cannot at all be waived. My attention was also invited to Kalyubi Vol. I A1 Fathawa A1 Kubra Vol. I which clearly support the case of the petitioner that there could be more than one mosque in a particular town or village, if the distance between the two mosques is far away and particuarly when it is difficult to reach the mosque due to distance or where there is imminent danger from the enemies and opponents or when there is no accommodation possible. Even in the opinion given by the Principal, Madhrasha Manfaul Anwar Arabic College, Lalpet, it is expressly statee that due to lack of space or due to distance or due to clashes or disturbances, it has always been possible to have more than one Jummas in a particular town. In the present case, in my view all the conditions for conducting more than one Jummas in Adhirampattinam are fully satisfied. Thus I hold that the suit filed by the plaintiffs/respondents 2 and 3 herein though maintainable only against the defendants 1 and 2 therein and the order which was obtained shall be binding if at all only against the defendants before that Court. Above all, there is no infringement of any fundamental right of the respondents 2 and 3 viz., the
plaintiffs and the present petitioner has not obtained any order restricting or interfering with the fundamental right of the respondents 2 and 3/plaintiffs to offer their prayers in any mosque, whereas the prayer granted by the trial Court virtually affects (he fundamental rights of the petitioner in the present revision and other member of the Muslim community in Adhirampattinam under Arts. 25 and 26 of the Constitution of India.
13. Therefore for all the foregoing reasons, the petitioner succeeds in this revision petition. I make it clear that the injunction granted by the lower Court can only be enforced against the defendants 1 and 2 viz., the respondents 4 and 5 (A. S. M. noor Mohammed Maraicair and R. M. Gani), and not against any other persons or members of any other Pallivasal in Adhirampattinam. It is open to all other persons, who are not parties to the proceedings in O.S. No. 338 of 1992 to offer their Jumma Prayer in any other Pallivasal in Adhiramapattinam. With these directions, the above civil revision petition is allowed. There will be no order as to costs.
14. Petition allowed.