HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C Rev No. 147 OF 2009 Contempt (c) No. D-1 OF 2010 Ghausia Memorial Trust & Ors Petitioners Alflah Gousia Muslim Trust & Ors. Respondent !M/s Anil Gupta & B. L. Chatha, Advocate. ^Mr. M. A. Bhat, Advocate Hon'ble Mr. JUSTICE J. P. SINGH, JUDGE. Date: 07.04.2010 :J U D G M E N T :
A Suit for permanent prohibitory injunction
restraining the petitioners-defendants from interfering in
the management, administration and other matters of
Ghausia Jamia Masjid Bathendi Morh, Jammu and the
landed property measuring 5 kanals 5 marlas comprised
in Khasra No. 331 min situated at Village Channi Rama,
Jammu was filed by Alflah Gousia Muslim Trust, inter
alia, pleading that the Trust had been constituted by ten
persons namely Abdul Aziz Bhatt, Mushtaq Hussain
Baji, Mohd. Bashir, Abdul Rashid Mir, Sadiq Hussain,
Abdul Majid, Mohd. Aziz, Haji Shoket Ali, Haji Munshi
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and Mohd. Ashraf for, amongst others, better
administration of Ghausia Jamia Masjid Bathendi Morh.
It was indicated in the plaint that one of the
petitioners namely Ghulam Rasool had been
mismanaging and misusing the funds/donations/income
of the said Masjid Sharief in connivance with other
petitioners-defendants for last so many years.
The petitioners contested the respondents’ Suit
denying the allegations of mismanagement of the affairs
of Ghausia Jamia Masjid Bathendi Morh which
according to Ghulam Rasool was being administered
and managed by him as its President. According to the
defendants, the plaintiffs had constituted a self styled
Trust to achieve their nefarious design of usurping the
property of the Masjid Sharief which was stated by the
defendants to have been constructed on the land
donated by Ghulam Rasool’s father. According to the
defendants, Ghulam Rasool was managing the affairs of
the Masjid Sharief smoothly with the help of other office
bearers. It was further indicated by the defendants in
their Written Statement that the plaintiffs had filed the
Suit against the defendants when the latter had not
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obliged them to part with the possession of the land in
possession of the Masjid where they wanted to raise
construction of some Shops.
An ex-parte ad-interim injunction was issued by the
trial Court of learned City Judge, Jammu on February
19, 2009 whereby the petitioners-defendants were
temporarily restrained from causing any sort of
interference in the management, administration and
other matters of Ghausia Jamia Masjid Bathendi Morh
and from interfering with the landed property measuring
5 kanals 5 marlas comprised in Khasra No. 331 min
situated at Village Channi Rama, Jammu under the
possession and use of Ghausia Jamia Masjid Bathendi
Morh, Jammu. The defendants were further restrained
from collecting any donation in the name of Ghausia
Jamia Masjid Bathendi Morh. This ex-parte order, on
contest by the petitioners was made absolute vide trial
Court’s order of May 26, 2009.
Petitioners’ Appeal against the Order before
learned Principal District Judge, Jammu having failed,
they have invoked the Revisional Jurisdiction of the
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Court seeking setting aside of the orders of the trial
Court and the Ist Appellate Court.
I have heard and considered the submissions of
learned counsel for the parties, gone through their
pleadings, copies whereof have been placed on records
and the orders passed by the Courts below.
The trial Court had come to the conclusion that as
the operation of the two Trust Deeds, one relied upon
by the plaintiffs and the other by the petitionersdefendants,
was in different fields and the subject
matter of the Suit was covered by the Trust Deed relied
upon by the plaintiffs, so there was a prima facie case in
favour of the plaintiffs justifying issuance of the
injunction.
Learned District Judge was, however, of the view
that as the land over which the Masjid Sharief stood
constructed was State land and did not belong to any
private person, so in order to benefit maximum people
of the locality, it would be just and proper if the property
in dispute was managed and administered by the
respondents because the petitioners had been
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mismanaging and misusing the funds/donations and
income of the Masjid.
Both the Courts below have dealt with the case
perfunctorily, avoiding prima facie determination of the
real issues between the parties, which were necessarily
required to be examined to find as to whether or not the
respondents-plaintiffs had succeeded in making out a
prima facie case justifying issuance of the impugned
injunctive directions.
The dispute projected by the plaintiffs-respondents
in their Suit did not refer to the affairs of Alflah Gousia
Muslim Trust alone, but pertained to the administration,
management and affairs of Ghausia Jamia Masjid
Bathendi and the land in possession of the Masjid
Sharief. The plaintiffs’ plaint indicates the petitionersdefendants
to have been managing the affairs of the
Masjid Sharief before the constitution of Alflah Gousia
Muslim Trust on February 13, 2009.
The Trust Deed relied upon by the petitionersdefendants
specifically records petitioner-Ghulam
Rasool to have been managing the affairs of the Trust
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known as Ghausia Memorial Trust from the premises
of Ghausia Jamia Masjid Bathendi Morh, Jammu.
Although the Trust Deed relied upon by the
plaintiffs does not hint at the mismanagement of the
Masjid by Ghulam Rasool, yet it impliedly indicates his
ouster therefrom.
The Petitioners-defendants had questioned the
power and authority of the settlers to constitute the
Alflah Gousia Muslim Trust saying that he could not be
ousted from the management of the Masjid without
following proper procedure therefor.
The questions that, therefore, were required to be
determined though prima facie, to find the existence or
otherwise of a prima facie case and other legal
requirements justifying issuance of injunctive directions
were inter alia as follows:-
a) Whether the settlers of Alflah Gousia Muslim
Trust had any right to constitute the Trust for
the management and administration of the
affairs of Ghausia Jamia Masjid Bathendi Morh,
Jammu and were entitled to manage the affairs
of the Masjid Sharief?
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b) Whether petitioner-Ghulam Rasool had infact
been ousted from the management and affairs
of the Masjid, if so, when and how?
c) Whether the plaintiffs were in possession of the
Masjid and its properties and had any right to
seek injunctive directions against the
defendants in respect of the management of
the affairs of Ghausia Jamia Masjid Bathendi?
d) Whether there was any material on records in
proof of the plaintiffs-respondents averments
that the petitionersdefendants had been
mismanaging the affairs and misusing the
funds of Ghausia Jamia Masjid Bathendi Morh?
As the questions aforementioned, amongst others,
arising out of the pleadings of the parties including the
right claimed by the petitioners-defendants to manage
the affairs of Ghausia Jamia Masjid Bathendi have not
been determined by the Courts below to find the
existence or otherwise of a prima facie case and other
legal requirements justifying issuance of injunctive
directions so their orders cannot be justified, in that,
they have acted illegally in issuing the injunction against
the petitioners without first addressing the questions
which they were required under law so to do.
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Perusal of the trial Court’s ex-parte ad-interim
order, which was later made absolute, demonstrates
injudicious exercise of jurisdiction by the learned City
Judge in issuing such injunctive directions at the interim
stage which, in effect and in essence, was the final relief
prayed for by the respondents in their Suit.
Power of the Court to dispense with the Notice
before considering issuance of ex-parte ad-interim
injunction, contemplated by Order 39 Rule 3 of the
Code of Civil Procedure, too has been exercised in a
mechanical fashion and routine manner, without spelling
out the colossal loss that would have been caused to
the plaintiffs in the event of issuance of a short Notice
before considering the respondents’ application seeking
issuance of ad-interim injunction against the
defendants.
Dispensing with the Notice to the opposite party
before issuance considering issuance of injunction is
not an idle formality and the Courts are required to
exercise this power only on the existence of good and
sufficient spelt out reasons in support of its opinion that
the object of granting the injunction would be defeated
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by delay which may occasion in the issuance of Notice
to the opposite party.
The trial Court has not followed the provisions of
Order 39 Rule 3 of the CPC in letter and spirit while
dispensing with the issuance of prior Notice before
issuance of injunctive directions and thus erred in
issuing injunction of such a dimension which has the
effect of ousting the petitioners from the affairs of the
Masjid, which course may be contemplated only in case
of a very strong and exceptional prima facie case in
favour of the plaintiffs warranting issuance of the
directions which, if not issued would have rendered the
Suit infructuous or otherwise caused such irreparable
damage or injury to the plaintiffs which may not be
compensated by costs.
Coming to the order passed by the first Appellate
Court, it is found that the grievance projected by the
petitioners in their Appeal against the order of the trial
Court and stated to have been demonstrated at the time
of its hearing has not at all been addressed to by the
learned District Judge who has decided the Appeal in a
slip shod manner without dwelling on the issues which
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were required to be addressed before ruling on the
correctness or otherwise of the trial Court’s order and
erroneously recording finding without there being any
material in support thereof that the petitioners had been
mismanaging the affairs of and misusing the
income/funds of the Masjid Sharief.
Respondents’ learned counsel’s plea that this
Court should not interfere with the orders of the Courts
below in view of the law laid-down by the Hon’ble
Supreme Court of India in Managing Director (MIG)
Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another
versus Ajit Prasad Tarway, Manager (Purchase and Stores)
Hindustan Aeronautics Ltd. Balanagar, Hyderabad, reported as
AIR 1973 SC, 76, is untenable, in that, both the Courts
below having been found to have exercised their
jurisdiction illegally, the judgment referred to by the
learned counsel would have no application to the facts
of the case.
For all what has been said above, the orders
impugned in the Revision Petition need to be set aside
requiring the trial Court to examine the respondents’
case for deciding their application seeking injunction
afresh.
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This Revision Petition, therefore, succeeds and is,
accordingly, allowed, setting aside order dated
26.05.2009 of learned City Judge, Jammu and order
dated 26.09.2009 of learned Principal District Judge,
Jammu.
The matter is remanded to the trial Court for
consideration afresh of respondents’ application for
issuance of ad-interim injunction in accordance with law.
Parties through their learned counsel are directed
to appear before the trial Court on April 17, 2010.
In view of the orders passed in C.Rev.147/2009,
Contempt (C) No. D-1/2010 does not require further
consideration. It is disposed of, accordingly.
(J. P. Singh)
Judge
JAMMU:
07.04.2010
Pawan Chopra
