IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 970 of 2005()
1. KAMAL MALOOR, JOINT SECRETARY,
... Petitioner
2. P.P.ABDUL KHADER, S/O.PAREETH PILLAI,
3. K.K.ALI, S/O.KOCHAHAMMED, KONNUNKUDI
4. P.H.SHAMSUDHEEN, S/O.P.A.MOHAMMED,
5. K.P.ASHRAF, S/O.PAREED HAJI,
6. P.K.HAMEED, PUTHEN KARA VEETTIL,
Vs
1. K.HASSAN BAVA, S/O.KUNHEEN PILLA,
... Respondent
2. P.H.ABDUL AZEEZ RAWTHER,
3. T.M.SAHAD, S/O.MOIDEEN,
4. A.ABDUL KHADER, S/O.AHAMMED,
5. C.M.SAYED MOHAMMED, S/O.MOHAMMED,
6. O.P.KUNJU MUHAMMED, S/O.PAREETH,
7. O.M.HAMZA, S/O.MUSTHAFA, MEMBER,
8. K.A.MOHAMMED, S/O.ABOOBACKER, MEMBER,
9. P.K.KOCHUNNI, S/O.LATE KOCHAMMED,
10. A.LATHEEF, S/O.H.M.MOIDEEN,
11. K.M.NASER, S/O.K.P.MOHAMMED,
12. M.A.RAHEEM, S/O.MOHAMMED KUNNU,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.M.P.MOHAMMED ASLAM
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :11/03/2009
O R D E R
P.R.RAMAN & P.S.GOPINATHAN, JJ.
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C.R.P. No.970 of 2005
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Dated this the 11th March, 2009
O R D E R
Raman, J.
Defendants 4, 5 and 13 to 16 in the suit,
O.S.No.14 of 2004, on the file of the Wakf Tribunal, Ernakulam,
are the revision petitioners. The suit is one for injunction
restraining the defendants from conducting Juma Khutuba in
Karattupalli Juma Masjid by delivering the advice part of the
Khutuba in Arabic. The plaintiffs sought for mandatory
injunction directing the defendants to conduct Khutuba in
Malayalam. The suit was eventually decreed, restraining the
defendants by a prohibitory injunction from conducting Juma
Khutuba by delivering the advice part of the Khutuba in Arabic
after exhortation to virtue. The defendants were also directed to
make arrangements, to conduct Juma Khutuba in the masjid by
delivering the advice part of the Khutuba after the exhortation to
virtue (Vasiat bi Taqwa) in Malayalam which was the practice
C.R.P.No.970/2005
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from the date when Juma was started in the masjid till 4.2.2000.
Aggrieved by the judgment and decree passed, the contesting
defendants has come up in appeal.
2. As per the plaint averments, the plaintiffs are
persons professing and practicing Islamic faith and are members
of Karattupalli Muslim Juma-ath Mahallu. The administration of
the Karattupalli Muslim Juma-ath is governed by the bye-laws, as
per which the administration is vested in a committee of 13
persons. Defendants 1 to 5 are the President, Secretary and
other office bearers, and defendants 6 to 11 are the members of
the committee. The members of the juma-ath are followers of
Shafei Madh hab. Friday congregations in the masjid is
conducted and it is performed in accordance with the Shafei
Madh hab, as per which Friday prayer (juma) consists of
Khutuba and Salaat consisting of two Rat-aat (standing). The
faithful assemble in the masjid for juma prayer and the Imam
delivers a Khutuba addressing them. The Imam will be standing
on the Mimber (pulpit) while delivering the Khutuba. The
essential ingredients of Khutuba are the commencement of the
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Khutuba with ‘Hamd’ (praise of Allah); Salat (invocation of Allah’s
blessings and peace on the prophet); Exhortation to Virtue
(Vasiatbi Taqwa); recitation from Holy Quran; and Due
(Supplications to Allah). Kuthuba is delivered in two speeches.
The Imam will pause and sit for a while in between the two
speeches. In addition to the above essential ingredients, after
exhortation to virtue the Imam uses his own words as advice to
the assemblage and explanation and elucidation of religious
teachings and guidance to the faithful in the matters of religion.
However, the advice is not an essential ingredient of Khutuba,
but it is a complimentary part of explanation and elucidation of
teachings. The speech also includes imparting religious
instructions with reference to the contemporary context. The
advice part of Khutuba after exhortation to virtue is being
conducted by the Imam in Malayalam while standing on the
mimber. This practice was continuously followed in the juma
masjid from the very beginning, as per the Shafei school.
3. The plaintiffs are persons who are regularly
attending the Friday prayers. According to them, they are
C.R.P.No.970/2005
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entitled to hear and listen to the Khutuba in the language
understood by them. If the advice to the assemblage for the
Friday congregation is delivered in the language, not known to
them, they cannot understand the same and the very object of
Khutuba will be frustrated. According to the plaintiffs, they
have the right to insist that the juma has to be performed in the
manner as it was done and was continued for three decades, and
it cannot be done away by any person or authority or by the
committee elected for the administration of the jama-ath under
the terms of the bye-laws. The bye-laws do not confer any such
power. In 1976, there was a dispute regarding Khutuba to
change the format into Arabic and that was resolved by
intervention of Ernakulam District Muslim Jama-ath Council
through mediation on 25.3.1976. It was agreed by all concerned
that the Khutuba will be delivered in Malayalam while the Imam
is on the mimber and this practice continued. But suddenly on
11.2.2000, the defendants further changed the format of
Khutuba from Malayalam to Arabic without any authority, thus,
depriving of their fundamental right to freedom of religion.
C.R.P.No.970/2005
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Hence, the defendants are liable to be restrained by an injunction
as sought for and prayed for a direction to the plaintiffs to
conduct the Khutuba in Malayalam which was the accepted
practice.
4. The stand taken by the defendants in their
written statement apart from disputing the maintainability of the
suit was that the committee was administering the mahal as per
the bye-laws; that the juma was performed in accordance with
the Shafei Madh hab; that the contention that advice part of the
Khutuba after exhortation to virtue was conducted by the Imam
in Malayalam language while standing on the pulpit was not
correct; that it was admitted that the advice part of the Khutuba
was delivered in Malayalam, but it was done before mounting to
pulpit; and further that the Khutuba starts after mounting to
pulpit and it is in Arabic language. When a dispute arose in the
matter in April, 2001, it was agreed that the advice part of the
Khutuba will be delivered in Malayalam before mounting the
pulpit. The plaintiffs have no legal right, much less, any
fundamental right to insist that the Friday prayer shall be in the
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language of their choice. The agreement dated 25.3.1976 was
cancelled and the same was not enforced.
5. The Tribunal framed as many as six issues for
trial. The evidence consists of Exts.A1 to A4 marked on the side
of the plaintiffs, and Exts.B1 to B2(b) on the side of the
defendants. On the side of plaintiffs, Pws. 1 to 4 were
examined and the defendants examined Dws.1 to 8. The trial
court decreed the suit, against which this revision is preferred.
6. The points that arise for consideration are as to
what was the practice followed in Karattupalli Juma Masjid, from
the time when the masjid was established, with regard to the
language of the advice part of juma Khutuba during the Friday
congregations; whether any change was brought by the
defendants to such practice; whether the plaintiffs have
established their right to seek an injunction as prayed for; and
whether the decree passed by the court below is right in law.
7. The court below found that the suit is
maintainable, over ruling the objections of the defendants. The
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plaintiffs are admittedly the members of the first defendant
juma-ath, and they claiming the observance of a religious right
in their juma-ath in a particular manner. The dispute is as to
whether the religious discourse called Khutuba in a mosque, in
connection with juma prayer on Friday can be done in vernacular
along with its essential ingredient in Arabic arose for
consideration before this Court in Muhammed v. Moideen Haji
(2000 (2) KLT 216), and it was held as follows:-
“The respondents have contended, as a
preliminary objection, that the suit itself is not
maintainable as these religious matters do not
create any enforceable right to anyone and
therefore, cannot be adjudicated as a dispute
of civil nature. This being a matter affecting
the right to worship will certainly affect the civil
right of the parties and is therefore a dispute of
civil nature. The right to worship according to
one’s belief is a right available to any individual
and therefore if the manner in which such right
is exercised is interfered with by any other
person or group, necessarily, it will give rise to
a dispute of civil nature which can be
adjudicated by a civil court by entertaining a
suit. The freedom guaranteed in Art.25 to
practise religion is exercised primarily with
religious worship, ritual and observation and
religious practices are as much part of religion
as religious faith or doctrine.”
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8. We are in complete agreement with the above
observation. The right to worship being available to any
individual, the exercise of which if infringed or attempted to be
infringed, the remedy available to a party is to approach the
court of law, and this freedom of religious practice is guaranteed
by the Constitution under Article 25 of the Constitution of India.
The jurisdiction that is to be exercised by the Tribunal as per the
Wakf Act has since been settled by a Division Bench of this Court
holding that all such disputes will come within the jurisdiction of
the Tribunal, the suit as such is maintainable, as rightly held by
the Walk Tribunal.
9. Ext.A1 is the bye-law of the juma-ath. Clause
5 provides for formation of a committee for the administration of
the mahal. Their rights and duties are specified in the bye-laws.
The juma prayer is on Friday, the essentials of which consists of
the commencement of the Khutuba with’Hamd’ (praise of Allah);
‘Salat’ (invocation of Allah’s blessings and peace on the prophet);
exhortation to virtue (Vasiatbi Taqwa); Recitation from Holy
Quran; and Dua (supplications to Allah). The Imam delivers the
C.R.P.No.970/2005
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Khutuba addressing the assembly. After exhortation to virtue,
the Khateeb uses his own words as advice to the assemblage
and explanation and elucidation of religious teachings and
guidance to the faithful in the matter of religion. But the advice
part is not an essential ingredient of Khutuba and it is
complimentary. There is no dispute that the advice part was
being conducted by the Imam in Malayalam language. But the
dispute is whether this malayalam part of the advice was given
by the Imam from the pulpit or before he enters in the pulpit.
Earlier there was a dispute between the parties in this context
and the same was settled as per the agreement, which is
marked as Ext.A4.
11. Ext.A4, dated 25.3.1976, is an agreement
settling the dispute between the two factions. As per clause (1)
of the above decision, it is agreed that during the time of Juma,
the advice in Malayalam will be delivered from the mimber and
thereafter Khutuba will be delivered in Arabic before Namaskar.
Therefore, it is evident that since this settlement in 1976, the
practice that is followed is advice in malayalam from the mimber
C.R.P.No.970/2005
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first and thereafter Khutuba will be delivered in Arabic.
Therefore, the stand taken by the defendants that the
Malayalam part of the advice was given not from the mimber, at
any rate, from Ext.A4 cannot be accepted as true or correct.
12. Then, the question that would arise for
consideration is as to whether the present committee could
change the said practice or not. In this connection, clause (5) of
the bye-law is heavily relied on. Ext.A1 is the copy of the bye-
law produced in the case, and that is a bye-law of the year 1977.
It does not contain any clause relating to the amendment or
changes to be effected in the practice that is followed in
Karattupalli Juma Masjid. Even though it is stated that
subsequently there is some change made in the bye-law
enabling the committee to make such changes in the bye-law, in
the absence of any such amended bye-law produced in the case,
there is no scope for considering the said contention.
13. The court below has referred the evidence of
PW.1, the 3rd plaintiff, PW.2, the former Khateeb of the mosque
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for the period 1970 to 1975, PW.3, a person residing in the
mahal area, PW.4, another resident of the mahal area, and PW.5,
the former Khateeb working in the Mosque from 1977 to 1976,
who have all given evidence regarding Ext.A4, which goes to
support the case of the plaintiffs. The practice that has been
followed after Ext.A4 decision arrived at on 25.3.1976 has been
cancelled by the contesting defendants in the mahal committee
meeting, which has also given rise to the present dispute. The
court below has considered the evidence of Pws.2 and 5 who are
independent witnesses and former Imam’s of the mosque. Their
evidence was accepted as they are respectable persons, who
cannot be called as interesting witnesses. According to them,
the practice to Khutuba in Karattupalli Juma Masjid during their
period was that the advice part was given in Malayalam while
standing on the pulpit. PW.1, an aged person, who is a member
of the mahala from 1969 onwards, deposed that the mosque
was constructed in the year 1965 and juma was started in the
year 1969. DW.4, the 13th defendant, in the cross examination
has deposed that till 11.2.2000, the advice part of Khutuba was
C.R.P.No.970/2005
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in Malayalam while the Imam was on the mimber. DW.6, the 6th
defendant, also gave evidence to the effect that the practice
followed was as claimed by the plaintiffs till the decision was
taken in the meeting held on 8.1.2000. According to him, in the
general body meeting on 8.1.2000, Abdullah Salih read an
application demanding change over of the format as followed in
Central Mahal, and requested to implement the demand. But the
decision was deferred and the format was changed to Arabic only
from 11.2.2000. The above decision was taken by the mahal
committee. But there is nothing produced to show that there
was any general body meeting convened and the same had
taken any decision before bringing the change that is being
effected. Therefore, as the matter stands, the decision to make
any changes from Ext.A4 is not validly taken, and, therefore, the
plaintiffs are entitled for the decree as sought for and granted by
the court below.
14. Whether or not the general body has the power
to effect any change in the practice followed, is not a matter
arising for consideration at present, since nothing is produced
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empowering the general body to effect such changes as per bye-
law. Though the court below has answered these questions in
the negative, we do not approve of the said answers for the
simple reason that such a question will arise for consideration
only if general body takes a decision and any change is effected
thereafter, and if any dispute arise with regard thereto. The
court cannot decide something in anticipation of a future dispute.
It is purely academic as far as the present proceedings are
concerned. Therefore, that finding is vacated. The advice part
of the Khutuba in Malayalam is more for the benefit of the
members, to improve their knowledge of the Religion. The
observation contained in Muhammed v. Moideen Haji (2000
(2) KLT 216), rendered by Mr.Justice Abdul Gafoor, as he then
was, is elucidating and illustrative on the various aspects of
Friday congregations, including the question whether the advice
part of the Khutuba by the Imam in Vernacular is sanctioned by
the Personal Law. It is desirable that in matters like this, the
members will act prudently in the larger interest of the
community and to avert raking up issues that are amicably
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settled, unless any such changes are considered essential in the
religious performance of the prayer during Friday congregation.
In the result, we confirm the decree passed by the
court below and dismiss the revision. There will be no order as
to costs.
P.R.RAMAN, JUDGE
P.S.GOPINATHAN, JUDGE.
nj.