1998 PLP 859 (CLC)

9. Reverting to the arguments of Mr. Ali Ahmed Fazeel, who has strenuously argued that the plaint is liable to be rejected, being without cause of action, on the ground, inter alia, that the right to offer Namaz is a right, which, in law, can only be claimed or exercised in a mosque/masjid, which is dedicated in the name of Almighty Allah and not as of right in other places like Jamaat Khana, which is not a mosque/masjid but it is a place which exclusively belongs to and is owned .by present Hazir Imam i.e., Aga Khan, the Third. In support, he has referred to the following cases:‑‑‑ (i) Sheikh Hasansab and others v. Mohidinsab and another (AIR 1923 Bombay 42(2). (ii) Muhammad Yusuf and others v. Muhammad Shafi and others (AIR 1934 Allahabad 1013). (iii) Musaheb Khan and others v. PT. Raj Kumar Bakshi and another (AIR 1938 Oudh 238). (iv) Sri Sinha Ramanuja Jeer alias Sri Vanamalia Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others (AIR 1961 SC 1720).

10. In the case of Sheikh Hasansab and others (ibid) the question before a Division Bench of Bombay High Court was whether a building with a Mehrab and Mimber is sufficient to make a mosque dedicated to Public Reference was made to the Baillie's Digest on Mohamedan Law and Amir Ali's Mohamedan Law, Volume I, Fourth Edition, whereafter it was held that mere existence of structure called Mehrab and Mimber are not sufficient to prove that the building in question was a mosque. It was further held that the question whether a particular building is a public mosque or not is a question of fact and for such determination existence of a Mehrab and Mimber may form part of evidence. In the case of Musaheb Khan and others (supra) again the question before a Division Bench of Oudh High Court was whether a mosque, which was situated in a graveyard and was being maintained by minor, under the guardianship of his mother, was a public Waqf, in which the Muslamans could offer their prayers. A representative suit was filed seeking declaration of such nature where one of the defence took by the defendants was that the building described in the plaint as a mosque had never been dedicated or used as a place of worship. Reference was again made to Baillie's and Aamir Ali's Mohamedan Law as well as to the cases Ata‑Ullah v. Azimullah (1890) 12 All. 494, Adam Sheikh v. Isha Sheikh (1897) 1 OWN 76, M. Ahmed Shah Mubarak Shah v. Atta Khan (AIR 1934 Peshawar 57), Muhammad Yusuf v. Muhammad Shafi (AIR 1934 Allahabad 1013) and Kaniz Mehdi Begam v. Mirza Rasul Beg (AIR 1918 Oudh 379). It was held that once a building is proved to be dedicated as a mosque it cannot be undedicated and that the mere construction of a mosque in a private house does not make it a mosque in the sense of a public place of worship. At this stage, I would also like to refer the commentary on the Principles of Mohamedan Law, by D.F. Mulla, edited by Dr. M.A. Mannan. In para. 218 the entitlement of a Muslim is discussed with reference to offering Namaz in a mosque. While referring to several cases including Ata‑Ullah (supra) and P. Majllissae Islamia v. Sheikh Muhammad (63) A. Ker. 49, follg, it was observed that the right to offer prayers in a mosque is a legal right and in case such right is denied then a Muslim is entitled to seek relief in a Court of Law. It would be advantageous if para. 218 is reproduced which is as under:‑‑‑ "

218. Public mosques. ‑‑‑Every Mohamedan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another sect or school. The right to offer prayers in a mosque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law. "

11. It was argued on behalf of the plaintiffs that they have a cause of action to maintain this suit as being Muslims they are entitled to offer Namaz, individually as well as Ba‑Jamaat and to call Azan in Jamaat Khana and since they have been illegally and unauthorisedly restrained by the defendants, as such they have cause of action of maintain this suit. In support, Mr. Muhammad Asar Hussain, has referred to the case of Muhammad Fazil v. Mst. Resham Jan and another (1983 CLC 1165), where the Supreme Court of Azad Jammu and Kashmir while discussing Rule 11(a) of Order VII, C.P.C. held that the existence or absence of cause of action is to be discovered from allegation in the plaint and not from the written statement or any other documents. The rule laid down by this Court in the case of M. Moosa v. Muhammad and others (PLD 1954 Sindh 70) was referred with approval. It was further held by the Supreme Court of Azad Jammu and Kashmir, after referring to another case of this Court L. Collins v. Charles Booth & Co. Ltd. (AIR 1921 Sindh 106) that the Court has to presume that every averment made in the plaint is true. There is no cavil to this proposition of law that while considering an application, as of the instant case, only the plaint is to be looked at and that contents of such plaint is to be treated as correct. Even after such presumption, if there appears that the plaint has failed to disclose any cause of action or is barred by any Law then, the plaint is liable to be rejected. I may observe that for this purpose, the Courts are also competent to look into the documents, filed by the plaintiffs, alongwith their plaint. It is also settled law that the provisions of Order VII, Rule 11 are not exhaustive and that an incompetent suit which is an abuse of process of law is to be buried at an early stage (For further reference please see Burmah Eastern Ltd. v. Burmah Employees' Union (PLD 1967 Dacca 190), Pakistan State Oil v. KESC (PLD 1991 Kar. 190) and Trustees of the Port of Karachi v. Gujranwala Steel Industries and another (1990 CLC 1997 at 2000).

12. Much emphasis has been placed by the learned counsel appearing for the defendants on the application of section 9, C.P.C., who all have vehemently pleaded for rejection of plaint as the question involved in the suit consists of religious rights. Section 9, C.P.C. empowers a Civil Court to entertain suits of civil nature except such suits whose cognizance is either expressly or impliedly barred and subject to the provisions of C.P.C. As held in the case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), a litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necessary implication barred by a statute to the contrary. This view was time and again reiterated by Hon'ble Supreme Court of Pakistan and recently in the case of Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCMR 1908). This provision does not bar filing of any suit but merely confers jurisdiction in Civil Courts to try all suits of civil nature, The term "suit of a civil nature" has been defined under explanation to section 9 which include a suit wherein the right to property or to an office is contested, notwithstanding that such right revolves entirely on the decision of question as to religious rights or ceremonies. In the words of Wajihuddin Ahmed, J. (now Chief Justice of this Court), the statutory rules of Ubi.jus ibi remedium (where there is a right there is a remedy) is supplemented by section 9 and unless jurisdiction of a Court is expressly or impliedly barred, Civil Courts are vested with jurisdiction to entertain and try all suits of civil nature. Section 9, C.P.C. was interpreted by a Division Bench of Lahore High Court in the exhaustive judgment of Abur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113), where a distinction was drawn r between religious property or religious office with the religious rites and ceremonies. In that case plaint filed against Qadianis/Ahmadis by some Muslims, challenging the acts of Ahmadis/Qadianis calling themselves Muslims and calling their prayers as Namaz and calling their place of worship as Masjid, was dismissed at the level of High Court as being barred by the provisions of section 9, C.P.C. read with section 42/54 of the Specific Relief Act. However, the rule laid down in the case of Abdur Rahman Mobashir and 3 others (ibid) is quite different to the facts of the instant case. Here, the plaintiffs are seeking injunction against the defendants from interfering in their rights to offer Namaz, individually and Ba‑Jamaat and to call Azan in Jamaat Khana. The religious rites or ceremonies either of plaintiff or of defendants are not under question in the present suit. It would be pertinent to reproduce relevant paragraphs of the said judgment, which read as follows:‑‑‑ "

66. It is evident from these cases that the principle underlying section 9 in respect of rites and ceremonies is the fundamental principle of there being no compulsion in religious affairs. It has thus been unanimously held that it is not the province or duty of the Court to pronounce on the truth of religious tenets or to regular religious rites or ceremonies. V. Ramalinga Mudaliar v. E. Sundara Sastrigal and others (AIR 1929 Madras 526), Sri Emberumanar Jeer Swamigal v. Board of Commissioners for Hindu Religious Endowments (AIR 1936 Madrass 973), Aiyanachariar v. Sadagopachariar (AIR 1939 Madras 757), Thiruveng Adachariar v. Kcishanasami Thathachariar (AIR 1915 Madras 877), Devchand Totaram v. Ghanashyam (AIR 1935 Bombay 361), Maine Mailor v. Islam Ahmanath (ILR 15 Madras 355) and Sri Tinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer (AIR 1961 SC 1720).

67. Not only this, the law recognises the right of religious denominations to full autonomy except in the case of infringement of justiciable rights of a group or individual. Cases of ex‑communication or exclusion from denomination or caste fall in this category. Sarfuddin Saleh v. State of Bombay (AIR 1962 SC 853), Hassanali v. Mansoorali (PLD 1947 PC 223), Ratansey Virji and another v. Meghji Harji Janqeali and others (AIR 1934 Bombay 431), Devchand Totaram Kirange v. Ghanethyam Sakharam Chaudhari and others (PLD 1935 Bombay 361), Abdul Razzak Haji Mahomed v. Adam Haji Usman Noorani and others (AIR 1935 Bombay 367), Appaya and another v. Padappa (ILR 23 Bombay 122), Naraindas Assannral and others v. Valabdas Vishandas and others (AIR 1929 Sindh 1).

68. From these authorities it will be clear that the Courts wile interpreting section 9, C.P.C. have' drawn a distinction between religious property or religious office on one hand and religious rites and ceremonies on the other. I am, therefore, of the view that the right to perform the Shiar‑i‑Islami including the manner in which prayer (Namaz) can be offered are matters relating to religious rites or ceremonies within the meaning of the explanation to section

9. A suit regarding such matter is competent only if it involves dispute about right to property or office. I, therefore, agree with the argument of the learned counsel for the petitioners that the case of the respondents so far as it pertains; to prayer (Namaz) and Azan is not covered even by section 9 of the Code of Civil Procedure and is incompetent. "

13. Earlier, some 37 years ago, this Court has considered the issue as to what constitute a mosque and a right to offer prayer in such place, by a learned Single Judge of this Court Sajjad Ahmad Jan, J. (as his lordship then was) in the case of Rangal Shah and others v. Mula Jadal (PLD 1960 (W.P.) Karachi 512). This case was not considered by the Lahore High Court in Abdur Rahman Mobashir (supra). In that case a suit was filed by Mula Jadal for declaration that he be declared Mutawali of a mosque, which belongs to Sunni Sect of Muslims and also prayed for permanent injunction to restrain appellants Rangal Shah and others from forceably taking possession of that mosque. After making reference to the cases Ata‑Ullah (supra), Maula Bakhsh v. Amir‑ud‑Din (ILR 1 Lah. 317) and Jiwan Khan v. Habib (ILR 14 Lah. 518) it was held, inter alia, that there is no such thing as a Shia mosque or a Sunni mosque or a mosque of any other sectarian denomination. It. was observed that a Shafai may join in a congregational worship though the majority of worshippers may be Hanafis and likewise Shias may worship in a mosque where the rest of congregation are Sunnis. However, a mark of caution was laid down in the said case, to the extent that in the interest of public order such persons, who are offering Namaz may not have a right for a separate prayers to call "Azan" or to hold a congregation behind Imam of their own. In that case reliance was placed on the case of Amir Hussain Shah v. Hafiz Ghulam Rasul (AIR 1936 Peshawar 65). In such circumstances appeal filed by the appellant‑defendant was dismissed and the decree passed by the First Appellate Court i.e. District Judge was maintained with the following observations: "

4. I am of the view that a public mosque in legal concept and by its very nature is not capable of exclusive physical possession in the sense that one Muslim has no right to exclude another from offering prayers therein. From that angle, all Mussalmans are in possession without any one being in exclusive physical possession. And where neither party is in possession in the physical sense inconsistently with the rights of the other, and the plaintiff's rights are obstructed by the defendant, a suit by the former for a declaration of his rights is maintainable and an injunction against the defendant not to interfere with these rights is the proper consequential relief for the purposes of the proviso to section 42 of the Specific Relief Act."

14. Section 9, C.P.C., in relation to a dispute involving right to worship, was also considered by a Full Bench of Indian Supreme Court in the case of Ugam Singh and another v. Kesrimal and others (AIR 1971 SC 2540). In that case a suit was filed by the respondents for declaration that they are entitled to carry on Darshan, Prakshal and Pooja etc. without interference from the defendants. The suit was decreed by the Civil Judge while the First Appellate Court namely, District Judge allowed the appeal and dismissed the suit on the ground that it appears to be barred by section 9, C.P.C. Here, I would like to observe that section 9 of Pakistan C.P.C. is para materia to section 9 of the Indian C.P.C. except Explanation II, which is an additional provision in Indian C.P.C. On an appeal, filed against the judgment of District Judge, the Rajasthan High Court set aside the judgment of District Judge and restored the order of Civil Judge dismissing the suit of the respondents. Order of Rajasthan High Court was upheld by the Indian Supreme Court. It was held that a suit for injunction restraining one party from interfering by one sect with the religious rites of other sects to worship is maintainable under section 9 of the C.P.C. Reliance was placed on the Privy Council in Sir Seth Hukam Chand v. Maharaj Bahadur Singh (AIR 1933 PC 193). It was further held that a right to worship is a civil right, interference with which raises a dispute of a civil nature and that disputes, which are in respect of rituals or ceremonies cannot be adjudicated by the Civil Courts, if such suits are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit is filed. In another case of Indian Supreme Court Sri Sinha Ramanuja Jeer alias Sri Vanamamalia Ratnanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others (AIR 1961 SC 1720) where, after reference to several Indian reported cases it was held, inter alia, that suits raising question of religious rites and ceremonies are not suits of civil nature and are not maintainable in Civil Courts. It was further held that suit for declaration of religious honours and privileges will not lie in a Civil Court. For further reference see District Council of United Basel Mission Church and others v. Salvador Nicholas Mathias and others (1988) 2 Supreme Court Cases 31) where the rule laid down by the Indian Supreme Court in the case Ugamsing v. Kesrimal (ibid) was reiterated. In that case respondents filed a declaratory suit challenging the resolution, through which merger of appellant's church with the church of South India was proposed. That suit as well as first appeal was dismissed while these judgments were reversed by a learned Single Judge of Karnataka High Court against which defendants/appellants filed appeal before Indian Supreme Court, which was allowed and the judgments of Karnataka High Court was set aside and the judgment of First Appellate Court affirming those of the Trial Court were restored. It would be pertinent to quote paragraphs 11 and 12 of the said judgment as the same are very relevant for disposal of this application:‑‑‑ "

11. The first point that has been urged by Mr. Krishnamurthy Iyer, learned counsel appearing 6n behalf of the appellants, is that the dispute between the parties is not one of a civil nature and, as such, the suit was not maintainable. It has been already noticed that all the Courts below including the High Court have concurrently come to the finding that the suit was of a civil nature within the meaning of section 9 of the Code of Civil Procedure and, accordingly, it was maintainable. It is the case of the respondents that if the impugned resolution is implemented or, in other words, U.B.M.C. of South Kanara and Coorg is allowed to merge in C.S.I., the right of worship of the members of U.B.M.C. will be affected. It is now well‑established that the dispute as to right of worship is one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and a suit is maintainable for the vindication or determination of such a right. The question came up for consideration before this Court in Ugamsingh and Mishrimal v. Kesrimal where this Court observed as follows: (SCC p. 837, para. 16). It is clear therefore, that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit is filed.

12. In this instant case also, there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a Court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of the enquiry in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the Court may examine the doctrines, faith, rituals and practices for the purpose of ascertaining whether the same interference with the right of worship of the aggrieved parties. In view of section 9 of the Code of Civil Procedure, the enquiry of the Court should be confined to the disputes of a civil nature. Any dispute which is not of a civil nature should be excluded from consideration."

15. The most crucial question which is involved in this suit and which needs serious consideration is the status of "Jamaat Khana" which is the place wherein plaintiffs want to offer prayers and to call Azan. It is claimed in the plaint that this is the only place where Ismailis are offering their religious rites like Namaz etc., which fact has been denied in the written statement. This is a question of public importance which requires production of evidence from both the parties. My attention was drawn to the terms "Masjid" and "Jamaat Khana" by the counsel for defendants, who contended that Jamaat Khana is not a place of worship but it is a sort of community centre. Undoubtedly, if defendants succeed in establishing such contention than the plaintiffs would be out of Court but as I have observed earlier that a plaint could not be rejected on more assertion made in the written statement. It is to be seen whether Jamaat Khana is a place dedicated to God in order to enable all Muslims to offer prayers therein. Again, this is a matter which requires production of evidence from all sides. It would be advantageous to refer the case Haji Bibi v. H.H. Sir Sultan Mahomed Shah, The Aga khan (1909) BLR Vol. XI page 409) where amongst 128 issues in that suit a question to the ownership of Jamaat Khana and Ismailis graveyard also came up for consideration. Jamaat Khana was defined by Justice Russel of Bombay High Court as a meeting hall or guild‑hall where Ismailis of Bombay used to offer Doowa three times a day on their knees. (Pages 425 and 426). Jamaat Khana was also referred on several occasions in the book "The Isma'ilis their History and Doctrines" by Farhad Daftary (Cambridge University Press, U.K., 1992) in the following manner:‑‑‑ ?

Sadr AI‑Din is credited with building the first Nizari Jamaat‑ Khana, or assembly and prayer hall, in Kotri, Sindh

" (at page 479) ?

But the rescuants were summoned before the Jamaat‑Khana in Bombay and, since they persisted in their refusal to pay the dues, they were outcast by the whole Koha Jama at assembled there for the occasion . . . . . . . " (at page 514) "

The Barbhai dissidents; with their tacit Sunni leanings, now seceded from the Khoja Community and established themselves in a separate Jamaat Khana in Bombay, but in Mahim they used the upper floor of the existing Jamaat‑Khana while the Khoja followers of the Aga Khan held the lower floor. It was at the Jamaat‑Khana of Mahim that, in 1267/1850, four members of the Barbhai party, were murdered by the Khojas loyal to the Aga Khan

" (at page 515) '

As a result, the Barbhai party was again outcast in 1862 by the unanimous vote of all the Khojas assembled in the Jamaat‑Khana of Bombay .... .? (at page 515) ?

After the earliest challenges to his status, Aga Khan III's leadership was accepted unquestionably by his followers. He remained in direct contact with many Nizaris in different lands and guided the community frequently in the form of Firmans (Farmans), or written directives read in the local Jamaat‑Khanas

" (at page 526) "

At the Jamaat level, the communal affairs are under the jurisdiction of a Mukhi and a Kamadia, who until 1987 were selected for each Jamaat Khana by the relevant Provincial Councils

" (at page 528) "

After Khurasan, the largest number of Persian Nizaris are to be found in the country's central province, especially in Tehran where a Jamaat Khana has been established, and in some nine villages around Mahallat

" (at page 543) At page 562 of the abovementioned book author Farhad Daftry has defined Jamaat Khana as an assembly house or congregation place used by the Nizari Ismailis for their religious and communal activities. Thus, the burden would be on the plaintiffs to show that Jamaat Khana is being used in the shape of mosques/Masjids where they are legally entitled to offer Namaz and that the defendants are not entitled to restrain them from offering Namaz. Pakistan is an Islamic state and for a Muslim Namaz is its important and one of the basic Rukn. If a building or place is proved to be a mosque (Masjid), dedicated to Allah, then every Muslim has a right to offer Namaz therein. However, calling of Azan and other religious rites would always be a subject of public order as held by this Court in the case of Rangal Shah and others (ibid).

16. A detailed discussion on the nature and construction of mosque may be found in Book IV of the Hedaya by Charles Hamilton, (Premier Book Shop, Lahore, Edition 1975 at page 239). It is stated inter alia, that if a person builds a mosque, his right of property in it is not extinguished unless it is separated from the rest of his property or unless a general right is granted to people to come and worship in it. It is further mentioned that the moment a single person or the people in general start saying their prayers in such building the right on property of owner stands extinguished according to Hanafi Fiqh. Emphasis was placed on dedication of such property to God for making it a mosque. Several instances were cited including case of a mosque connected with dwelling place and the question whether a mosque can be reverted to its previous owner. In reference to question instances, it would be at trial to see whether the present Jamaat Khana falls within the concept of a mosque dedicated to God. At present there is no evidence and mere on verbal assertion or on the strength of affidavit(s) such question of public importance cannot be decided at this interlocutory stage. There are several issues involved in this suit, which may also include the nature of worship' being practised by Ismailis. From the reported cases of Haji Bibi and others as well as from the commentaries quoted above, it prima facie appears that Ismailis generally offer Doowa in their Jamaat Khana. It is not clear even from the plaintiffs' pleadings whether the defendants or their other co‑followers also follow the same faith and belief as of plaintiffs. In order to grant reliefs as prayed in the instant suit, which includes offering of prayers, which in our religion stand at a higher footing, this Court is required to look into the question of public order as held by this Court in the case of Rangal Shah (ibid). It is also to be seen whether these Jamaat Khanas are dedicated to God or it is a private property in order to treat these Jamaat Khanas at par with mosques. All these questions are matter of evidence. In my tentative view, all these issues are of civil nature and that a suit to try such issues is not barred by section 9 of C.P.C. 16‑A. The above discussions lead to conclude that prima facie plaintiffs' case does not appear to be barred by any specific provision of law and,' therefore, application, filed by defendants under Order VII, Rule 11, C.P.C. (C.M.A. 4006 of 1986) is hereby dismissed with the direction that the suit be fixed for regular hearing within three (3) months. A.A./A‑171/K???????????? ??????????????????????????????????? ??????????? Application dismissed.