Madras High Court
Koil Pillai vs Territorial Commandor, Territorial ... on 20 November, 1992
Equivalent citations: (1993)2MLJ117, AIR 1994 MADRAS 27, (1993) 1 MAD LW 635, (1994) 1 CURCC 145, (1993) 2 MAD LJ 117
JUDGMENT Thangamani, J.
1. The appellant is the plaintiff in the trial court. The suit properties originally belonged to the appellant and three others. They endowed the same under the original of Ex.A-1 gift deed dated 27.4.1944 by way of trust to the Salvation Army for the purpose of organising and conducting congregation prayers in the mode and manner then being practised by the Christian community of Sambavarvadakarai. The then members of the Salvation Army also agreed to have the building conveyed to the Salvation Army so that the Christian aradhana as was then practised by the Christian community of Sambavarvadakarai may be conducted and continued in the premises as before. The respondents/defendants representing the Salvation Army are now in possession of the property. The practice of Christian community of Sambavarvadakarai consisted among others the following of baptism by immersion on personal confession of faith and the commemoration of the Lord's death in the breaking of bread on the first day of the week by way of worship in accordance with the practice and rituals adopted world over by Christianity of similar persuasion and sanctioned by the custom among the Christian community at Sambavarvadakarai. The appellant has been following the rituals and practices of baptism and the Lord's supper in the suit property for a long time. Now, the respondents are attempting to dissuade the members of the Christian community from following this practice claiming that this kind of worship is not followed by the Salvation Army. This conduct on the part of the respondents is wholly unwarranted The Salvation Army accepted the gift on a specific condition of making the property available for the use of conducting the Christian aradhana namely aradhana or worship as then being practised in all its forms by the Christian community of Sambavarvadakarai. One Muthiah and Paul Raj instituted O.S. No. 20 of 1978 in a representative capacity in the Court of District Munsif, Shencottah for injunction against the present respondents from interfering with the rituals and practices of the Christian community of Sambavarvadakarai. That suit was dismissed on 27.2.1979 on the preliminary issue (if maintainability. That decision does not operate as res judi-cata in the present suit, which is one for a declaration that the appellant has the right to worship and follow the rituals and practices of the Christian community of Sambavarvadakarai in the suit property.
2. The respondents resisted the suit contending that the plaintiff has no locus standi to institute the suit. The decree in O.S. No. 20 of 1978 operates as res judicata to the present litigation. Under Section 9 of the C.P.C. the Civil Court has no jurisdiction to entertain the suit. Under Ex.A-1 the suit property was gifted to the Salvation Army which is now represented by the respondents for the purpose of conducting the Christian aradhana. It was not dedicated to the Christian community. At the time of the gift, the donors were in the Salvation Army The Christian rituals mentioned in Ex.A-1 refer only to the practice allowed by the Salvation Army. That the endowment was for the purpose of conducting aradhana as was then practised by the Christians is not true. The Salvation Army never accepted baptism and the Lord's supper as essential rituals in Christianity. The Army did not practice the rituals of breaking of bread of distributing the pieces of bread and wine to the members of the congregation as representing the flesh and blood of Jesus Christ. The concept of the worshipers consuming the flesh and blood of the Lord even if it be in a symbolical form was not approved by the Salvation Army. At no time, the rituals referred to in the plaint were conducted in the suit building. The gift was accepted by the Salvation Army only on the distinct understanding that the form of worship to be performed in the prayer hall would be in the Christian form as followed by the Salvation Army.
3. The maintainability of the suit under Sections 9 and 11, C.P.C. was taken up as preliminary issues in the trial Court and negatived, holding that the relief claimed is not of civil nature and the decree in O.S. No. 20 of 1978 operates as res judicata for the trial of the present suit. The appellant plaintiff took up the matter in appeal before the Sub-Court, Tenkasi in A.S. No. 30 of 1981 on its file. The lower appellate court concurred with the finding of the trial court and dismissed the appeal.
4. The substantial questions of law raised in this second appeal are as under:
1. Whether the suit as framed is not maintainable under Section 9, C.P.C.?
2. Whether the present action is barred by res judicata by reason of Ex.B-2 judgment?
5. The reliefs claimed by the appellant in this action are declaration that he has the right to worship adopting the rituals and practices of the Christian community of Sambavarvadakarai in the suit property in the mariner followed by him all along and the consequential injunction. The practice or ritual for which he seeks sanction is that of baptism by immersion on personal confession of faith and the commenoration of Lord's death in the breaking of bread. The courts below had taken the view that the subject matter of dispute relates only to religious ceremonies without a claim of any office or any emoluments and hence it is not a suit of civil nature as contemplated under Section 9, C.P.C. Mrs. Uma Ramanathan, learned Counsel for the appellant argued that the property was dedicated under Ex.A-1 gift deed only for the purpose of conducting the Christian aradhana in the mode then prevalent and the Salvation Army accepted the gift on the specific understanding of making the property available for the said purpose. The rituals and practices of baptism and Lord's supper have been observed in the suit property for a long time. The suit was instituted only on account of the attempt on the part of the respondents to prevent the performance of the said rituals and practices. The suit is not one to regulate the religious rites and ceremonies but to establish the time honoured customary rights of worship as recognised in ExA-1. The right of an individual to offer worship in a particular form as in the past is a recognised civil right and the appellant is entitled to the protection of the court in the exercising of his right. It is also her grievance that the courts below have failed to discuss the various clauses mentioned in Ex.A-1 gift deed. But as it has been pointed out by Mr. S. Mani Kumar, learned Counsel for the respondents, in deciding the preliminary issues the court is concerned only with the reliefs claimed in the plaint.
6. So, let us now examine whether the right to worship adopting the rituals and practices of the Christian community of Sambavarvadakarai in the suit property is a civil right or not. In support of her contention, learned Counsel for the appellant relied on the decision in Ugam Singh & Mishrimal v. Kesrimal , wherein the respondents instituted the suit for a declaration that they had been carrying on and they were entitled to the worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to the tenets observed by the Digambri Sect of the Jain religion. They further alleged that the temple was constructed and the idol consecrated according to their sect. The appellants denied that Digambri Sect had any right of worship over the idol or had ever exercised such a right and contended that the idol and the temple is in all respects a temple of the Jain Swetambri Sect. The Supreme Court held that from the pleadings and the controversy between the parties, it was clear that the issue was not one which was confined to merely rites and rituals but one which affected the rights of worship. If the Digambaries have a right to worship at the temple, the attempt of the Swetambaries to claim that idol as theirs is to preclude them from exercising their right to worship with respect to which a civil suit is maintainable under Section 9 of the C.P.C. Evidently this citation cannot help the appellant since the right to worship itself was in dispute in that case whereas in the present case, the area of controversy relates to the ritual of breaking of bread on the first day of the week in the commemoration of Lord's death.
7. In Kuber Mohapatra v. Nilakanteswar Deb A.I.R. 1974 On. 21, the right to worship and offer bhog to the deity taken out in a procession and other ancillary reliefs were held to be of civil nature and a civil suit for their enforcement was maintainable. The decision recognised the right to take part in public worship either in the temple or of a deity while it is being taken out. On the other hand, the respondents herein do not dispute the right of the appellant to offer worship. What they resist is only the insistence on the part of the appellant that the rituals conducted during worship must be in the particular form they prescribe.
8. In Syed Fanand Ali v. Nasir Beg , the plaintiffs who appear to be members of the Shia sect instituted a suit for perpetual injunction to restrain other Muslims who do not belong to their sect from interfering with their right in offering Namaz by reciting the word 'Aameen' loudly during the prayer in a mosque in Mathura. The question whether anybody has such right was raised as early as 1882 nearly 100 years ago before a Bench of five Judges of the Allahabad High Court. Following that Full Bench case, Held that the defendants were fully justified by law in entering the mosque, joining the congregation and saying the word 'Aameen' and the relief claimed is a right of civil nature. This decision was cited by learned Counsel for the appellant in support of her claim that form of worship is a civil right within the purview of Section 9, C.P.C. But a careful reading of the decision would indicate that it is only an authority for the position that Mussalman is entitled to enter a mosque which is dedicated to God and is also entitled to join in the prayers and utter the word 'Aameen' loudly but not with the aim or mala fide intention to disturb the peace of the congregation. Besides the single Judge of the Allahabad High Court who rendered the decision has not given any reason for holding that the utterance of the word 'Aameen' is not a ritual or form of prayer but a civil right.
9. The next case cited is that in Muniandi Kone v. Sri Ramanatha Sethupathi Hereditary Trustee of Arulmighu Mangalanathaswami Temple (1982)2 M.L.J. 20. Here the exercise of the customary right to take a deity in procession on a particular occasion during an annual festival was disputed on the ground that there had been some breaks in some years and the right was not unconditional and absolute. Held that the suits relating to rites and rituals in a temple are not of a civil nature. However, the right to worship is a civil right which can be agitated in a civil Court.
10. In Narhari Shastri v. Shri Badrinath Temple Committee , it was held that the temple of Shri Badrinath being admittedly a public place of worship of the Hindus, the right of entrance into the temple for purpose of 'darshan' or worship is a civil right which flows from the nature of the institution itself and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved. This deals with the right of a devotee to enter into a temple and offer worship and it has no bearing in the present controversy.
11. The decision in Chandu Sajan Patel v. Nyahalchand Panamchand , has laid down that every citizen or a community or section of a community has an inherent right to conduct a non-religious procession through a public road and has, therefore, also the right to file a declaratory suit without proof of special damages. The inherent right to conduct a non-religious procession is the controversy in this decision and this has also no relevance to the present dispute, which relates to the performance of rituals. So except perhaps the decision rendered in Syed Farzand Ali v. Nasir Beg , the appellant is unable to show a single authority to hold that performance of a mere ritual is a civil right within the meaning of Section 9, C.P.C.
12. On the other hand learned Counsel for the respondents argued that civil courts have no jurisdiction to decide questions of ritual in temple except in so far as decision of such questions is incidental to decision of civil rights. In Appadurai Ayyangar v. Annangarachariar A.I.R. 1939 Mad. 102, Wadsworth, J. has held that courts in India have no ecclesiastical jurisdiction and they cannot decide questions of ritual in a temple except in so far as the decision to such questions is a necessary incident to the decision of civil rights. A right to worship in a particular temple is a civil fight and a right to perform a religious office to which obligations and emoluments are attached is also a civil right. To prescribe forms of prayer, right to religious precedence and questions of that nature do not fall within the purview of the civil courts. In the present case, the ritual claimed is neither incidental to a question of civil right nor it relates to a religious office to which obligations or emoluments are attached.
13. In Srinivasachari, In re., Thatha Desika Thathachariar 83 L.W. 407, the plaintiff instituted the suit to set aside an order passed by the Commissioner of H.R.& C.E. under Section 62 of H.R. & C.E. Act alleging that according to the tradition when Sri Vedanta Desikar was alive, he used to worship Lord Varadarajaswami at Kancheepuram Temple on his birthday, that it was the established custom and usage to take the idol of Sri Vedantha Desikar round the various shrines of Alwars and Acharyas. The defendants resisted the suit denying the custom and usage alleged by the plaintiff. Held:
Two aspects underlie the scheme of Section 9, C.P.C. The first is, that a suit asserting right to an office is a suit of a civil nature, and the second is that it does not cease to be one of civil nature, even if the said right depends entirely upon a decision of a question as to the religions rites or ceremonies. There is a further implication that questions as to religious rites or ceremonies cannot independently of such a right to an office form the subject matter of a civil suit. If the present suit were to be construed as one , for mere declaration of the plaintiffs right to recite-Desikar's Tamil compositions at the time of Mangalasasanam, it would be clearly not maintainable. In Subbaraya Mudaliar v. Vedantachariar, I.L.R. 28 Mad. 23, it has been pointed out that a right to recite sacred texts in a temple is a matter of ritual or ceremony in a religious matter with which a civil court has nothing to do. But where the right to worship itself is denied, a suit to establish such an ordinary right would be a suit of a civil nature. ..In this suit the plaintiff does not seek to establish any right to an office. All that he seeks to establish is that on a particular occasion the worship should be conducted in a particular form. This is purely a ritual and a suit to establish such a ritual is not competent under Section 9 of the C.P.C.
14. The case law on the point has been reviewed by the Supreme Court in Shri Sinna Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, 1962 S.C.J. 17. His Lordship Subba Rao, J. as he then was, held that the suit for declaration of religious honours and privileges simpliciter will not lie in a civil court, but a suit to establish one's right to an office in a temple and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in the civil court. Regarding the law pertaining to the maintainability of suits in civil courts in respect of honours in temples, the Apex Court has to say these words:
Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain. It can entertain every suit of a civil nature excepting suits of which its organizance is either expressly or impliedly barred. As a corollary to this, it follows that a court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an officers contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit Of a civil nature; and (ii) it does not cease to be one even if the aid right depends entirety upon a decision of a question as to the religious rites or ceremonies. It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject matter of a civil Court.
15. In Mayalagu Ambalam v. K.R.P.R. Karuppiah Ambalam (1991)2 M.L.J. 21, Srinivasan, J., has held:
A claim that a person is entitled to worship and to receive thiruneeru and theertham first in preference to others in certain temples during certain festivals is not a civil right within the scope of Section 9 of the Civil Procedure Code. Unless such honours are attached as an emolument to a religious office, a claim therefor will not be cognizable by a civil Court.
16. Thus the law of the land having been settled by the Apex Court in this country, there is no doubt that the right claimed by the appellant herein is note civil right and he cannot enforce it in a civil court The word "ritual" means pertaining or relating to, or connected with rites. The word "rile" is a formal procedure or act in a religious or other solemn observance. In the present action right to worship is not the subject matter of the dispute. Instead adopting the practice of baptism. by immersion on personal confession of faith and the commemoration of Lord's death is the point in controversy. It is evidently a mere ritual. The suit pertaining to ritual is not one within the cognizance of the civil courts. The civil court has no jurisdiction to prescribe the modes of worship, prayers and religious precedence where no question of civil right really arises. The well established legal position is that suits relating to rites or rituals in a place of worship are not of civil nature. However, the right to worship is a civil right which can be agitated in a civil court. The courts will not endeavour to lay down a ritual which is to be followed in the worship. The suit to ask a right regarding the conduct of a ritual is not maintainable. So Section 9 of the Code of Civil Procedure is a bar to the maintainability of the present action which is one for observance of certain ritual simpliciter.
17. We find from Exs.B-1. and B-2 that one Muthaiah and Paul Raj for themselves and on behalf of the Christian Community of Sambavar Vadakarai, Shencottah instituted O.S. No. 20 of 1978 against the present respondents for the very same relief of permanent injunction asked for in the present action relating to the same subject matter of dispute. In the present suit there is an additional prayer for a decree of declaration that the plaintiff has the right to worship adopting the rituals and practices of the Christian Community of Sambavar Vadakarai in the suit property in the manner followed by him all along besides the relief of consequential permanent injunction. In the earlier suit plaintiffs sought a decree of permanent injunction only restraining the respondents from interfering with the practices and rituals of the Christian Community of Sambavar Vadakarai in the manner followed by them all along and particularly the practice of rituals of baptism by immersion on personal confession of faith and the commemoration of the Lord's death in the breaking of bread. A close scrutiny of the averments in both the plaints would reveal that practically the averments in both the plaints are identical. The earlier suit was dismissed on the ground that the suit was not of a civil nature. It is therefore evident that the present suit is not maintainable under Section 11, C.P.C. also. And the courts below have rightly dismissed the suit on the preliminary points.
18. In the result, the appeal is dismissed with costs.