1975 PLP 425 (SCMR)

MUHAMMAD GUL, J.‑This petition is from then judgment or the High;. Court at Karachi dated 15‑10‑1974, affirming those of the trial Court and the first appellate Court, by which the petitioners herein were perpetually restrained from Interfering with the management by the respondents of a, mosque and the shrine of a Muslim divine, to which it was attached. There is a Dargah of a Muslim divine named Hazrat Mehtab Shah Bokhari near K. M. C. Market in Soldier Bazar, Karachi. Attached to the Dargah is a mosque. It appears that a dispute arose between the Sunnis and Shias of the locality over the management of the mosque and the Dargah. The Sunnis claimed that the deceased divine belonged to the Sunni sect and his disciples were all Sunnis and that Dargah and the attached mosque were built by the subscriptions raised by the Sunnis who have regularly held congregational prayers, according to the Sunni tenets since the death of the said divine. The Shias on the other hand, claimed that the deceased divine was a Shia and the mosque and the Dargah have been under the management of the Shias who was held majalis and performed matam. It appears that there being apprehension of breach of the peace, proceedings under section 145, Cr. P. C. were initiated and the management was entrusted to Faqir Shah, petitioner No. 1 by the Additional City Magistrate, Karachi on 8‑7‑1957 on the view that he had been in possession, of the Dargah since 1945. Subsequent to the conclusion of proceedings before the Magistrate under section 145, Cr. P. C. it appears that the Sunnis of the locality formed a committee called Mehtab Shah Peer Bokhari Masjid Committee (respondent No. 1 herein). which was duly registered under the Societies Registration Act, 1860. The committee acting through his Secretary, Ramzan Shah filed a suit for perpetual injunction to restrain the petitioners herein who were cited as defendants from holding majalis and performing matam for calling Aazan in the Dargah premises in accordance with the Shia tenets and interfering with the congregational prayers of the Sunnis in the mosque within the premises of Dargah and are trying to convert it into an imam5ara. The petitioners objected to the frame of the suit and its competency, at the instance of respondent No. 1 herein. On merits, they denied that the deceased divine was a Sunni and that the Dargah: and the attached mosque had been under the management of the Sunnis. On the. pleadings of the parties, the learned trial Judge, framed the following issues :‑ (1) Whether the suit as framed is not maintainable ? (2) Is the suit barred under section 42 of the Specific Relief Act ? (3) Whether the Dargah and the mosque in question belong to the Sunni or the Shia community ? (4) Whether the plaintiffs are entitled to got the permanent injunction as prayed for ? (5) To what relief, if any, is the plaintiff entitled ? On the evidence produced in the case and after inspection of the spot, the learned trial Judge found that Hazrat Mehtab Shah Bokhari, who was buried in the tomb was of Sunni faith and that the shrine and the mosque were constructed by the contributions made by Sunnis. As to the frame of the suit and the objection founded on section 42 of then Specific Relief Act, the learned trial Judge took the view that the respondents were seeking to establish and enforce their certain specified rights in relation to the use and the management of the shrine and the mosque and prevent a breach of certain obligations existing in their favour with regard thereto and therefore, the suit was competent. The above findings were maintained on appeals by the petitioners herein, both by the first appellate Court and the High Court. In support of this petition, Mr. Sharifuddin Pirzada, learned counsel for the petitioners confined his argument to the frame of the suit and its competency by the respondents. He submitted that in effect the suit was for the removal of Faqir Shah and others from the management of the properties which were indisputably wakf and certain related reliefs con templated by section 92 of the Code of Civil Procedure. However, the suit was neither by the Advocate‑General of the Province, nor was it a representative's suit, after obtaining the consent in writing of the Advocate General and therefore, it was not competent. The argument of the learned counsel was that section was intended to be an executive statement of the law applicable to cases relating to the breach, management etc. of the properties which were in the nature of public trusts. The respondents have circumvented the provisions of section 92 of the Code and the suit was therefore, defective in form and for want of competency by the respondents herein. The point urged by learned counsel needs consideration. Accordingly, we grant leave. Security Rs.1,

000. Status quo as between the parties shall however, continue. Leave granted.