IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 35978 of 2008(G) -------------------------- OS.405/2008 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): -------------------------- 1. VENGODE MUSLIM JAMA-ATH, REPRESENTED BY ITS SECRETARY, VENGODE, KUDAVOOR P.O. MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM. 2. THE SECRETARY, VENGODE MUSLIM JAMA-ATH, VENGODU, KUDAVOOR P.O., MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.T.H.ABDUL AZEEZ RESPONDENT(S): --------------------------- 1. SHAJAHAN, S/O.LATE ALI AKBAR, RESIDING AT MARUTHARAKKONAM, KADAVOOR P.O., MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM. 2. MUNEERUDEEN, S/O.ABDUL SATHAR, RESIDING AT AMARAVILA PUTHEN VEEDU, MARUTHARAKKONAM, VENGODU, KUDAVOOR P.O. MELTHONNAKKAL VILLAGE, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. MR.S.ABDUL SALAM, MR.M.A.MUNEER, SMT.E.K.SAJNA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON 05/08/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.35978/2008 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.405/2008 FILED BEFORE MUNSIFFS COURT, ATTINGAL. P2: COPY OF THE ORDER IN I.A.1901/08 IN O.S.405/08 PASSED BY THE MUNSIFF COURT, ATTINGAL. P3: COPY OF THE OBJECTION IN I.A.1901/2008. P4: COPY OF THE ORDER DTD. 18/10/2008 IN O.S.NO.405/2008 PASSED BY THE MUNSIFF COURT, ATTINGAL. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE INJUNCTION ORDER PASSED BY THE MUNSIFF COURT, ATTINGAL IN I.A.NO.1901 OF 2008 O.S.NO.405 OF 2008. R2(B): COPY OF THE ORDER IN O.S.NO.405 OF 2008 MUNSIFF COURT,ATTINGAL. R2(C): COPY OF THE MARRIAGE INVITATION CARD OF THE SECOND RESPONDENT, MUNEERUDDIN. R2(D): COPY OF THE PETITION SOUGHT FOR GRANTING CERTIFICATE MADE BY THE SECOND RESPONDENT TO THE JAMAATH. R2(E): COPY OF THE POSTAL RECEIPT IN FAVOUR OF THE SECOND RESPONDENT. R2(F): COPY OF THE COVERING PAGE OF THE REGISTERED LETTER TO THE JAMAATH WRIT PETITIONER. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.35978 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th August, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records relating to Exts.P1 to P4 and quash Exts.P2 and P4 orders by exercising supervisory jurisdiction of this Hon'ble Court under Article 227 of the Constitution of India. 2. To stay the operation and implementation of Exts.P2 and P4 orders as they were passed without jurisdiction. 3. To issue such other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioners are the defendants in O.S.No.405 of 2008 on the file of the Munsiff Court, Attingal. Suit is for declaration and injunction and the respondents are the plaintiffs. The plaintiffs who are members of the first respondent Jama-ath were expelled from the Jama-ath for a period of five years allegedly for the reason that the body of their father was buried honouring his pious wish in the property set apart beside a mosque put up by him in his property and not in the graveyard of the Jama-ath. Pursuant to issuing a showcause notice imputing violation of religious precedents affecting W.P.C.No.35978/08 - 2 - the unity of the Jama-ath to which the plaintiffs offered their explanation, the Jama-ath expelled them from its membership for a period of five years. Such expulsion interdicted them from offering namaz in the mosque apart from excluding them from various activities of the Jama-ath, and its members from having any association with them, which amounted to their ostracization and excommunication apart from the incompensatable distress and defamation damnifying their reputation for ever, was the case presented by the petitioners in the suit for claiming a declaration that the decision of the first defendant Jama-ath to expel them from its membership is illegal and not enforceable, and also their entitlement to participate in all religious and social activities of the Jama-ath. A decree of permanent prohibitory injunction was also sought for to restrain the defendants from enforcing the expulsion order and from preventing them from participating and performing the social and religious activities including worship in the mosque and enjoying other facilities as members of the first respondent Jama-ath. The plaintiffs moved an application for interim injunction for identical relief as claimed in the decree for permanent prohibitory injunction and the learned Munsiff passed an ex parte order of injunction as canvassed W.P.C.No.35978/08 - 3 - for. P1 is the copy of the plaint and P2 is the copy of the ex parte order of interim injunction. The defendants, on appearance, filed objections to the interim application for injunction in which among other contentions maintainability of the suit and the application for interim injunction was also challenged contending that the first respondent Jama-ath is a 'Wakf' and in respect of any dispute relating to the wakf, the Tribunal constituted under the Wakf Act alone, but not the civil court has the jurisdiction, as interdicted under Section 85 of the Wakf Act, 1995. Another challenge was also raised that since the first respondent Jama-ath is an unregistered association, a suit against it otherwise than in a representative capacity complying with the requirements under Order 1 Rule 8 C.P.C. will not lie. In the objections challenging the application for interim injunction, the defendants also disputed the factual basis of the suit claim and also entitlement of the plaintiffs for the reliefs therein including the discretionary of relief sought for in the interlocutory application contending that the Jama-ath is fully competent and empowered to expel them for antireligious activities repugnant to religious tenets and custom. 3. In the light of the challenges raised by the defendants W.P.C.No.35978/08 - 4 - questioning the maintainability of the suit before the civil court in the objections filed by them to the interim application for injunction of the plaintiffs and as requested by their counsel at the time when that application was taken up for hearing, the learned Munsiff proceeded to consider that challenge preliminarily and, hearing the counsel on both sides on that question, passed P4 order holding that the civil court has jurisdiction to entertain the suit and it is maintainable. Propriety and correctness of P4 order and also P2 order of ex parte interim injunction granted in favour of the plaintiffs is challenged by the defendants in the Writ Petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 4. I heard the learned counsel on both sides. Having regard to the submissions made and the contextual background in which P4 order has been passed in view of the objections of the defendants to application for interim injunction of the plaintiffs, wherein P2 order was earlier passed ex parte, challenging the maintainability of the suit among other contentions to resist the discretionary relief of injunction, I find it is not appropriate or proper nor is it permissible to examine the correctness of the finding made by the learned Munsiff W.P.C.No.35978/08 - 5 - on the maintainability of the suit in P4 order since that order passed under the circumstances involved is patently erroneous and unsustainable under law. Maintainability of a suit, whatever be the challenge raised thereof, cannot be gone into and a finding entered into in an enquiry under an interlocutory application for injunction. It may be proper for the court to express an opinion prima facie while disposing an interlocutory application for injunction doubting the jurisdiction of the court to entertain the suit and its maintainability. However, a challenge on maintainability of the suit, which is admitted and taken on file, has to be raised by any person canvassing such challenge only in compliance of the procedural requirements and, normally, it has to be done by filing a written statement in the suit, raising that dispute and, if so advised, seeking for determination of that challenge as a preliminary issue after casting all the issues in the suit as contemplated under Order 14 of the C.P.C. Of course, where jurisdiction of the court is ousted by a statute and the determination of that question does not call for mixed questions of fact and law arising in the suit the party raising such a challenge can do so by filing a proper application setting forth the grounds thereof and the court can dispose of that petition providing W.P.C.No.35978/08 - 6 - an opportunity to the opposite party to file his counter or objections to that petition. True, from the averments in the plaint, if it is apparent that the court has no jurisdiction either pecuniary or territorial, to entertain the dispute canvassed, it can always order return of the plaint, at any time, under of the provisions of Order 7 Rule 10 of the Code of Civil Procedure and there is no necessity nor need for framing any preliminary issue under Order 14 Rule 2 for that purpose. However, where issue as to jurisdiction involve an enquiry into facts, it cannot be tried as a preliminary issue and necessarily it has to be tried with the other issues in the suit. In such cases, the normal rule complying the requirements under Order 14 C.P.C. has to be followed, and if any issue of jurisdiction is raised, the court may consider it as a preliminary issue as contemplated under sub-rule (2) of Rule 2 of Order 14 C.P.C. Any enquiry under sub-rule (2) of Rule 2 of Order 14 C.P.C. has to proceed only if the court is prima facie satisfied or of opinion that the case or any part thereof may be disposed of on an issue of law only like the jurisdiction of the court or bar of the suit by any law for the time being in force. However, a determination of that question, after the court forms a tentative opinion as indicated above, can be proceeded only after W.P.C.No.35978/08 - 7 - settling the issues in the suit in which among other issues maintainability is raised, so that it can be considered as a preliminary issue before considering the other issues involved in the suit. To consider the challenge of maintainability of the suit, whatever be the objections raised by the defendants in the counter to an application for interim injunction, whether it be an ouster of jurisdiction of the court or the bar under any law for the time being in force interdicting the entertainability of the suit, is not only improper and irregular but erroneous and unsustainable. The finding entered by the court below in P4 order with respect to the maintainability of the suit on the basis of the enquiry in the interlocutory application for injunction moved by the plaintiffs which still remain to be disposed of, is erroneous and cannot be sustained. So much so, P4 order is liable to be set aside, and I do so. 5. The ex parte injunction granted by the court below under P2 order which is challenged in the Writ Petition by the petitioners cannot be appreciated. The court below has to dispose of the interlocutory application with reference to the objections raised by the defendants after hearing the counsel on both sides in accordance with law. I make it clear that in determining the merit of the injunction W.P.C.No.35978/08 - 8 - application as to whether the plaintiffs have a prima facie case for that discretionary relief, the court is free to form a tentative opinion on the entertainability of the suit claim, but there cannot be any conclusive finding on the question of jurisdiction or maintainability of the suit in such enquiry. 6. In case the defendants have serious contentions as regards the maintainability of the suit and also the jurisdiction of the civil court to entertain the disputes presented in the suit, it is open to them to file a written statement before the court below setting forth those challenges among other contentions resisting the suit claim, if so advised, and invite the court to cast the issues based on the pleadings and decide the question of jurisdiction as a preliminary issue before proceeding with the determination of other issues as contemplated under sub-rule (2) of Rule 2 of Order 14 C.P.C. I make it clear it is for the court to form an opinion whether the suit can be disposed of on an issue of law only, if any such issue is cast on the basis of the contentions raised in the written statement of the defendants, and, if so satisfied, in accordance with the above rule, it may proceed accordingly. Operation of P2 order, ex parte order of interim injunction, passed by the court below has been kept in W.P.C.No.35978/08 - 9 - abeyance by virtue of the interim stay order granted by this court in the Writ Petition. Having regard to the continuance of the stay as such, it is ordered that the operation of the stay shall continue for a further period of one month from the date of this judgment subject to the final orders to be passed in the application for interim injunction moved by the plaintiffs by the learned Munsiff. The court below is directed to dispose the interim injunction application as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. 7. P4 order is set aside directing the court below to pass appropriate orders on the question of jurisdiction if properly raised by the defendants taking note of the observations made above and in accordance with law. Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE