P L D 1968 Lahore 315 (PLP)

Mosque known as Masjid Shahid Ganj and others v. Shromani Gurdwara Parbandhak Committee, Amritsar A I R 1938 Lah. 369 distinguished. (b) Civil Procedure Code (V of 1908)

O. VI, r. 17‑Amend ment of pleadings‑Delay in making application or amendment of plaint‑Relevant factor but not sole factor‑Can be met by award ing costs to defendant‑Point for amendment such over which even expert brain might not have been quite sure‑Refusal to allow amendment, held, in circumstances of case, not justified. Sh. Ghias Mohd. and Mian Sher Alam for Appellants. Abdul Hamid for Respondents Nos. 1 to

5. Sardar Ataullah for Respondent No.

6. Dates of hearing : 14th and 15th June 1967. Near Railway Platform No. 1, Lahore there is situate a mosque known as Dai Anga Mosque. According to the plaintiffs, a Committee known as Dai Anga Masjid Committee used to manage and look after the affairs of the mosque. This committee was registered with the Assistant Registrar Joint Stock Companies, Lahore, on the 28th of July, 1959. The plaintiffs, who are five persons, claim that they had been authorised by the aforesaid Committee by means of its resolution, dated the 22nd of February, 1960, to institute a suit out of which this appeal has arisen. Their case was that the d6fendants had illegally and collusively constituted an unlawful Committee by the name of the Managing Committee Dai Anga and have appointed one of them, namely, defendant No. 6 as the Imam of the mosque, which they had no authority to do. It was further averred that the defendants were unlawfully interfering with the management, administration and the supervision of the mosque affairs. The plaint went on to say that the defendants have been asked to dissolve their self created Intizamia Committee, to remove the Imam, and to restrain from interfering with the management of the mosque which was the function of the Dai Anga Masjid Committee. On the refusal of the defendants to accede to the demands of the plaintiffs, it was averred that the suit was being instituted against them. The prayer in the suit was for a declaration that only Dai Anga Masjid Committee Railway Old Office Lahore Registered, had the authority to carry on the administration, management and supervision of the affairs of the mosque and that the defendants have no right to do so. In the plaint an injunction was also claimed that the defendants should be restrained from interfering with the administrative and supervisory affairs of the mosque. A further declaration was claimed that the Intizamia Committee constituted by the defendants was illegal. These averments were denied by the defendants and on the pleadings of the parties the trial Court framed the following issues:‑-- (1) Whether Dai Anga Mosque Committee is competent to manage the affairs of Dai Anga Mosque? (O. P. P.) (2) Whether the defendants have been elected by the Mosque Attending Community to administer the mosque affairs. If so, what is its effect? (3) Whether suit for declaration with consequential relief of perpetual injunction lies when before the institution of the suit the plaintiffs were not in possession of the property of the mosque and were not managing the affairs of the mosque? (O. P. P.) The learned trial Court by means of its judgment, dated the 12th of November, 1962, decided issue No. 1 in favour of the plaintiffs. Issue No. 2 was decided against the defendants and it was held that there was no proof that the defendants had been lawfully elected to administer the mosque affairs. On Issue No. 3, it was held that a suit for declaration of the kind involved in this case with a consequential relief of injunction was competent and it was not necessary to claim a further relief of possession. After giving these findings, the learned trial Court decreed the plaintiffs' suit. It may be pointed out here that Issue No. 3 was struck on the 29th of October 1962, after much of the evidence in the case pad been led. In the said evidence, it had come to light that the management of the mosque and its affairs was with the defendants. Taking benefit of the evidence which had come on the record, the defendants filed an application for striking an additional issue which was framed in the form of Issue No. 3 aforesaid. In reply to the application of the defendants, for striking an additional issue, the plaintiffs took up the position that the frame of the suit was all right. They, however, averred that in case the Court found that the frame of the suit was not proper and that a prayer for possession should also be made, then the plaintiffs should be allowed a permission to amend their plaint accordingly. In view of the finding, recorded by the trial Court on Issue No. 3, that the form and frame of the suit was all right, it did not dispose of the prayer or application of the plaintiffs seeking amendment of the plaint.

2. The defendants filed an appeal which was disposed of by the learned Addl. District Judge, Lahore. He took up Issue No. 3 first and held that a further relief of possession was open to the plaintiffs and as they had failed to claim the same, there fore, the suit was not maintainable under section 42 of the Specific Relief Act. When asked that if that was the situation, the plaintiffs should be given the permission to amend their plaint, the learned District Judge, opined, that as the application for amendment of the plaint had been made very late, therefore, he was not prepared to grant the same. In view of his finding on Issue No. 3 he did not discuss Issues Nos. 1 and 2 and accepting the appeal of the defendants dismissed the plaintiffs' suit. The plaintiffs have come up in second appeal to this Court.

3. Learned counsel for the plaintiffs‑appellants has argued that in this case the subject‑matter of the suit is the right to manage a mosque and its affairs and the question of claiming possession of the mosque did not arise. According to him, a mosque is always a public wakf, the ownership of which vests in the Almighty and the persons who are apparently in its possession are concerned merely with its management, administration, supervi sion and control. They do not claim any adverse or hostile title in the property and consequently when the dispute is merely with the right to manage a mosque, possession is not a further relief within the meaning of section 42 of the Specific Relief Act. He also argues that the defendants in this case were also not in possession in the strict sense of this word and nor were they capable of delivering possession. In this way, he argues that when a defendant is not capable of delivering possession, or when none of the parties or, as a matter of fact, the defendants themselves are not in possession, the question of claiming a further relief of possession does not arise. I find a considerable force in the argument of the learned counsel for the plaintiffs appellants. In Rangal Shah and others v. Mula Jadal (P L D 1960 Kar. 512). It was held that mosque is not capable of human ownership and posses sion. This was a case in which the plaintiffs claimed right of Mutawaliship with consequential relief of permanent injunction restraining the defendants from interfering with their right. It was held by the learned Judge who decided this case that such a suit was competent and it was not necessary to sue for possession and that the injunction was a further relief which had properly been claimed by the plaintiffs. In K. R. Swaminatha Iyer and another v A. Rainier and others (A I R 1925 Mad. 421) the plaintiff claimed declara tion and restoration of office with a consequential relief of injunction restraining the defendants from interfering with his office. It was held that such a suit was competent. Similar observations are available in Munshi Abdul Rahim Khan and others v. Fakir Muhammad Shah and another (A I R 1946 Nag. 401). In Sunder Singh Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee Sunder Singh Mallah Singh, Rajput High School Indoura and others (A I R 1938 P C 73). It was held that where a defendant himself is not in possession or is not capable of delivering posses sion, then no relief for possession can be claimed against him. That was a case of trustee, where he claimed the right to administer a certain institution, of which neither he nor the defen dant was in possession. It was held that a suit for mere declara tion was maintainable. , In Pratap Narain Das and another v. Sri Krishna Chandra and others (A I R 1948 Pat. 28) it was held that interference by the defendant with the possession of the plaintiff was not necessarily dispossession. Applying all these principles to the facts and the circumstances of the present case, it will be evident that the dispute in this case is merely with regard to the right of management and not with regard to the possession of the mosque in stricto sensu. From that point of view, the mosque in dispute is not in possession of anybody and the maximum that is being done is that both sides are asserting their rights to manage it. In the Hujras or other appurtenants attached to the mosque, the occupants, if any, are not shown to have exerted any hostile title. They recognize the status of the property as a mosque and obviously relief of declaration with regard to the right of a particular party to manage the same will be enough to control the occupants.

4. Learned counsel for the defendants submitted that the proposition that a mosque was not capable of human possession was not correct. In this behalf he referred to the famous Full Bench Authority of this Court reported in Mosque known as Masjid Shahid Ganj and others v. Shromani Gurdwara Parbandhak Committee, Amritsar (A I R 1938 Lah. 369). That was a case where Sikhs had laid claim to the Shahid Ganj Mosque and had said that it was not a mosque in its inception but was a Gurdawara and that even if it was a mosque they averred that the Sikhs had been using it as Gurdawara and had set up a hostile title with regard to the very nature of the mosque. This Court held that adverse possession could be claimed over a mosque .by Sikhs. As will be evident from the facts mentioned above, the present case has no resemblance with the said case. Here nobody is laying adverse claim to the mosque and nor the nature of the property is in dispute. Again, nobody claims or wants to claim possession of the mosque in exercise of any right of ownership, Both the parties claim the right to administer the affairs of the mosque. In these circumstances, possession was not a further relief within the meaning of section 42 of the Specific Relief Act, as applied to the facts of this case. Here the relief of the injunction is quite enough for the purposes of the plaintiffs.

6. Assuming without conceding however, that the possession was a further relief, I think it was eminently a fit case in which amendment should have been allowed. The learned District Judge disallowed amendment on the sole ground that prayer for this purpose was made very late. This is not quite true. The defendants in the initial stages did not claim any issue on this point and it was only on the 29th of October, 1962, when issue for this purpose was struck. When, therefore, the controversy for claiming an issue started, the plaintiffs applied for amendment as well. Their application in this context cannot be described as very late. Moreover, delay no doubt is a relevant factor but not the sole factor. It could have been met by granting costs to the defendants. Again the point was such over which even expert brains may not have been quite certain. In these circumstances, refusal to allow amendment was not justified. I would, therefore, direct that as abundante cautela the plaintiffs should amend their plaint. The learned lower Appellate Court should get this order complied with after the parties appear before him.

7. The upshot of the above discussion is that this appeal is accepted, the judgment and decree of the learned Additional District Judge are set aside and the case is remanded to the lower Appellate Court for decision on the other points involved in the case. As the dispute is about a wakf property, there will be no order as to costs. The parties to appear before the learned District Judge, Lahore, on 12-7‑1967. S.Q. Appeal accepted.