IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRP.No. 970 of 2005() --------------------- W.OS.14/2004 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): DEFENDANTS 4.5. AND ADDL.DEFENDANTS 13 TO 16. -------------------------- 1. KAMAL MALOOR, JOINT SECRETARY, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA VILLAGE, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT. 2. P.P.ABDUL KHADER, S/O.PAREETH PILLAI, TREASURER, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. K.K.ALI, S/O.KOCHAHAMMED, KONNUNKUDI HOUSE, KORATTUPALLI, ONNAM MILE, PERUMBAVOOR. 4. P.H.SHAMSUDHEEN, S/O.P.A.MOHAMMED, PUTHENPEEDIKAYIL HOUSE, PERUMBAVOOR. 5. K.P.ASHRAF, S/O.PAREED HAJI, KARUKUNNAM HOUSE, PERUMBAVOOR P.O. 6. P.K.HAMEED, PUTHEN KARA VEETTIL, PERUMBAVOOR P.O. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): PLAINTIFFS & DEFENDANTS 1 TO 3 & 6 TO 11. -------------------- 1. K.HASSAN BAVA, S/O.KUNHEEN PILLA, KONNANKUDI VEEDU, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. C.R.P.NO.970 of 2005 : 2 : 2. P.H.ABDUL AZEEZ RAWTHER, S/O.HAMEED RAWTHER, PUTHENPARAMBIL VEEDU, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. T.M.SAHAD, S/O.MOIDEEN, VALLAKKUDI VEEDU, FIRST MILE, PEREUMBAVOOR VILLAGE KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 4. A.ABDUL KHADER, S/O.AHAMMED, PRESIDENT, KARATTUPALLI MAHALLUR COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 5. C.M.SAYED MOHAMMED, S/O.MOHAMMED, PRESIDENT, KARATTUPALLI MAHALLUCOMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 6. O.P.KUNJU MUHAMMED, S/O.PAREETH, SECRETARY, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMABVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 7. O.M.HAMZA, S/O.MUSTHAFA, MEMBER, EXECUTIVE COMMITTEE, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 8. K.A.MOHAMMED, S/O.ABOOBACKER, MEMBER, EXECUTIVE COMMITTEE, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. * 9. P.K.KOCHUNNI, S/O.LATE KOCHAMMED, MEMBER, EXECUTIVE COMMITTEE, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMABVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 10. A.LATHEEF, S/O.H.M.MOIDEEN, FAROOK MANZIL, MEMBER, EXECUTIVE COMMITTEE, KARATTPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 11. K.M.NASER, S/O.K.P.MOHAMMED, KONNANKUDI HOUSE,MEMBER, EXECUTIVE COMMITTEE, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. C.R.P.No.970 of 2005 : 3 : * 12. M.A.RAHEEM, S/O.MOHAMMED KUNNU, PUTHENPEEDIKA HOUSE, MEMBER, EXECUTIVE COMMITTEE, KARATTUPALLI MAHALLU COMMITTEE, KARATTUPALLIKKARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. (RESPONDENTS 9 & 12 ARE REMOVED AS PER ORDER DATED 21.11.08 IN I.A.NO.2423 OF 2008) ADV. SRI.M.P.MOHAMMED ASLAM FOR R1 & R3 SRI.P.M.MOHAMMED SHIRAZ FOR R5 TO R8, 10,11 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON 11/03/2009 PASSED THE FOLLOWING: P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- C.R.P. No.970 of 2005 ------------------------------- 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 2 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 C.R.P.No.970/2005 3 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 4 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 5 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 C.R.P.No.970/2005 6 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 C.R.P.No.970/2005 7 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.” C.R.P.No.970/2005 8 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 9 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 10 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 C.R.P.No.970/2005 11 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 12 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 C.R.P.No.970/2005 13 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 C.R.P.No.970/2005 14 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.