Bombay High Court
Ibrahim Pir Bhai Shaikh And Ors vs Babu Miya Ismail Sheikh And Ors on 18 November, 2019
Author: N. J. Jamadar
Bench: N. J. Jamadar
WP-7105-15.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7105 OF 2015
1. Ibrahim Pir Bhai Shaikh
Age : 68 years
2. Mohammed Nasir Shaikh
Age : 45 yeras
3. Mohammed Rahamatullah Shaikh
Age : 61 years
4. Abbas Mahamood Shaikh
Age : 65 years
5. Shaikh Hassan Ali
Age : 48 years
6. Abdul Razak Shaikh
Age : 58 years
7. P. Ibrahim Hussain Kunny
Age : 55 years
8. Shaikh Rajabaly Mohammed Ali
Age : 39 years
9. Sharmuddin Qureshi
Age : 51 years
10. Haji Nizam Muodin Shaikh ...Petitioners
Aged : 37 years (Ori.Defendant
11. Ayub Miyan Shaikh Nos.1, 3 to 6,
Age : 41 years 12 to 15 & 17,
12. Shaikh Mehboob Alisaab 18, 20 & 21)
Age : 43 years
13. Chanda Hussain Sab Choudhari
Age : 45 years
All residents of Shimla Nagar,
Napeansea Road, Bombay - 400036
Versus
1. Babu Miya Ismail Sheikh
Age : 61 years
2. Salim M. H. Sakherwala
Age : 59 years
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3. Mohammed Farooq Abdulla Vora
Age : 51 years
4. Ismail A. Memon
Age : 41 years
5. Abdul G. Sophiya
Age : 81 years
6. M. Y. V. M. Sheikh
Age : 38 years
7. M. Chunawalla
Age : 39 years
8. A. W. Goplani
Age : 75 years
9. Haji Mehboob F. Sheikh ...Respondents
Age : 48 years (Ori. Plaintiffs
All Trustees of Anjuman Talim-O- No.1, 3 to 7, 9
Tableegh, a Trust registered under the to 11)
Bombay Public Trusts Act, having their
Registered offce at D.X./6, Shimla
Nagar, Napeansea Road,
Mumbai - 400 036
10. Shaikh Razak (Ori. Deft.No.8)
Age : 38 years
11. C. M. Shaikh (Ori.Deft.No.10)
Age : 58 years
12. Hussain Shaikh Abbas
Age : 38 years
Respondent nos.10 to 12 above residing
at Shimla Nagar, Napeansea Road,
...Respondents
Mumbai - 400 036.
Mr. Ish Jain, a/w Rajan Yadav, Kiran Jain, i/b Kiran Jain &
Co., for the Petitioners.
Ms. Sindhu Sreedharan, i/b Satyam Sreedharan, for the
Respondents
CORAM: N. J. JAMADAR, J.
RESERVED ON: 27th SEPTEMBER, 2019.
PRONOUNCED ON: 18th NOVEMBER, 2019.
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JUDGMENT:-
1. Rule. Rule made returnable forthwith and, with the consent of the Counsels for the parties, heard fnally.
2. This petition under Article 227 of the Constitution of India takes exception to an order dated 30th March, 2015, passed by the learned Judge, City Civil Court, Bombay, in Suit No.6775 of 2000, whereby the preliminary issue, about the jurisdiction of the Court to entertain the suit, was decided in the affrmative.
3. This petition arises in the backdrop of the disputes between the two religious denominations in the matter of the affairs of a Mosque. For the sake of convenience the parties to this petition are hereinafter referred to in the capacity in which they are arrayed before the City Civil court in Suit No.6775 of 2000. Though the litigation has a chequered history, the facts necessary for the determination of the present petition can be summarised as under:
(a) The plaintiffs claimed to be the trustees of Anjuman Talim-O-Tableegh, a public trust registered under the provisions of the Maharashtra Public Trust Act, 1950 (hereinafter referred to as 'the Act'). The affairs of the mosque are administered by the trust. The plaintiffs have appointed a Pesh-Imam (the person who leads the prayers) and Bangi (the person who calls 3/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC the faithfuls for prayers). The plaintiffs also manage the day to day affairs of the said mosque.
(b) The plaintiffs averred that the defendants reside in the vicinity of the mosque situated at D.X./6, Shimla Nagar, Napeansea Road, Mumbai and visit the mosque for offering the prayers. The defendants are trying to obstruct the plaintiffs in the management of the affairs of the mosque. The defendants made an attempt to bring another Pesh-Imam, to lead the prayers. The defendants are bent upon interfering with the orderly and peaceful management of the affairs of the mosque by insisting on adopting of practices, which have the propensity to foment breach of peace, like using the loudspeakers for Azan and prayers, hoisting fag, following the traditions of Tazia during Moharam etc. The defendants have also sought to put hindrances in the management of the mosque by making complaints to various authorities, though the defendants have no role in the management of the affairs of the mosque. Hence, the plaintiffs have instituted the suit seeking perpetual injunction against the defendants, inter alia, from entering into the mosque, save and except for prayers; fve times a day, bringing their own Pesh-Imam to lead the prayers, using the loudspeakers, hoisting fag etc. 4/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC
(c) In the said suit, the plaintiffs had taken out a Notice of Motion seeking interim relief. The defendants questioned the jurisdiction of the City Civil Court as Section 80 of the Act, 1950, bars the jurisdiction of the Civil Court to decide or deal with any question which is by or under the said Act to be decided or dealt with by any offcer or authority under the said Act. It was the case of the defendants that under disguise of enforcement of civil rights, the plaintiffs were, in fact, seeking reliefs which were within the exclusive sphere of jurisdiction of the authorities under the Act, 1950.
(d) By an order dated 13th February, 2001, the learned First Additional Principal Judge, City Civil Court, Bombay, answered the preliminary issue to the effect that the City Civil Court will not have jurisdiction to determine the question;
whether the suit property is a trust property or not. However, the offcer appointed under the Act, 1950 was directed to decide the application of the plaintiffs for declaration that the suit property was the trust property.
(e) The change report fled by plaintiff nos.2 and 8 vide Change Report No.ACC-IV/5597/1998 to record House No. D.X./6, Shimla Nagar as the property of the trust Anjuman Talim-O-Tableegh came to be allowed by the Assistant Charity 5/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC Commissioner by judgment and order dated 12 th April, 2005, and the Schedule 1 of the Trust was directed to be maintained accordingly. In the meanwhile, defendant no.3 herein Mr. Mohammed Nasir Shaikh had fled an application under Section 19 of the Act, 1950 to register the trust under the name and style of 'Madarsa and Masjid House Committee, Mumbai'. The said application came to be dismissed by the Assistant Charity Commissioner on 23rd July, 2002.
(f) Both the orders were challenged in appeal by the defendants before the Joint Charity Commissioner. Appeal No.52 of 2002, against the order dated 23rd July, 2002 dismissing the application of defendant no.3 to register the trust, was allowed and the matter was remanded back to the learned Assistant Charity Commissioner with a discretion to re- hear the application. Appeal No.39 of 2005, against the order dated 12th April, 2005, registering the property D.X./6, Shimla Nagar as the property of the Trust, Anjuman Talim-O-Tableegh also came to be allowed and the said application was also remanded back to the Assistant Charity Commissioner for a fresh enquiry.
(g) While the proceedings were thus posited before the Assistant Charity Commissioner for fresh enquiry, issues were 6/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC settled in the suit, on 27th July, 2006. Issue no.4 about the jurisdiction of the Court to grant the reliefs claimed in the suit was directed to be heard as the preliminary issue. By order dated 15th February, 2008, the learned Judge, City Civil Court, was persuaded to answer the said issue in the affrmative. The said order was challenged by the defendants in Writ Petition No.2708 of 2008 and this Court, by order dated 20 th March, 2009, remanded back the matter to the City Civil Court for a fresh consideration on the preliminary issue.
(h) In the meanwhile, by the judgment and order dated 6th April, 2010, the learned Assistant Charity Commissioner rejected the Change Report No.5597 of 1998 fled by the plaintiffs to record the property situated at D.X./6 Shimla Nagar as the property of the Trust, P.T.R. No.E-16745 (Mumbai). By an order of even date, the learned Assistant Charity Commissioner decided the application of defendant no.3 Mohammed Nasir Shaikh and ordered that the Trust, namely, Madarsa and Masjid House Committee be registered, however, without any immovable property as the defendant no.3 failed to prove the rights in the immovable property bearing No.D.X./6, Shimla Nagar.
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(i) By the impugned order, consequent to the remand by this Court, the learned Judge returned the fnding that the City Civil Court had the jurisdiction to entertain and try the suit as the reliefs claimed by the plaintiffs are in the nature of the reliefs, which the trust having domain over the property could seek to protect the rights of the trust in the suit property. It was further observed that none of the provisions under the Act, 1950, can provide the said reliefs claimed by the plaintiffs. The plaintiffs were thus lawfully seeking the relief of injunction from the Civil Court. Consequently, the bar under Section 80 of the Act did not operate.
4. Being aggrieved by and dissatisfed with the aforesaid fnding that the Civil Court has jurisdiction to entertain, try and decide the suit, the defendants have invoked the writ jurisdiction of this Court.
5. I have heard Mr. Jain, the learned Counsel for the petitioners - defendants and Ms. Sreedharan, the learned Counsel for the respondents - plaintiffs, at some length. Perused the material on record including the orders passed by this Court, City Civil Court and Authorities under the Act, 1950.
6. The learned Counsel for the petitioners submitted that the trial court committed a manifest error in recording a fnding 8/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC that it has jurisdiction to try the suit, despite there being an express bar under Section 80 of the Act, 1950. Amplifying the submission, the learned Counsel for the petitioners would urge that if the averments in the plaint are construed in their natural and true sense, then, it becomes evident that the plaintiffs are, in fact, seeking enforcement of their rights to manage the affairs of the trust. The question, as to whether the plaintiffs are the trustees of the trust Anjuman Talim-O-Tableegh is contentious and the said issue can only be determined by the authorities under the Act, 1950. Moreover, the Assistant Charity Commissioner has recorded a categorical fnding in the order dated 6th April, 2010, that the property bearing house No.D.X./6, Shimla Nagar, is not the property of the trust Anjuman Talim-O-Tableegh. The said fnding has yet not been varied or set aside in the appeal preferred by the plaintiffs before the Charity Commissioner. This fnding, according to the learned Counsel for the petitioners, dismantles the very substratum of the plaintiffs case, as the question as to whether any property is the property of the trust squarely falls within the province of the jurisdiction of the authorities under the Act; in view of Section 19 of the Act, 1950. The learned Counsel for the petitioners endevoured to place reliance upon the averments in the plaint indicating the alleged threat to the management of 9/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC the affairs of the trust at the hands of the defendants, in support of the aforesaid submission.
7. In opposition to this, the learned Counsel for the respondents - plaintiffs submitted that the instant suit has not been instituted seeking declaration of title over the suit property. It is indisputable that the plaintiffs are the trustees of the trust Anjuman Talim-O-Tableegh P.T.R. No.E-16745 (Mumbai). The defendants have no semblance of interest in the management of the affairs of the trust. Yet, the defendants are putting hindrances in the management of the affairs of the mosque by the plaintiffs by resorting to various strategies. The plaintiffs are, thus, constrained to approach the Civil Court seeking injunctive relief against the defendants from interfering with the management of the affairs of the mosque, which vests in the plaintiffs. Thus, the bar under Section 80 of the Act, does not came into play.
8. It is trite law that while determining the question of jurisdiction the plaint is required to be read as a whole. In the instant case, the case of the plaintiffs, plain and simple, is that the defendants are trying to interfere in the day to day management of the affairs of the mosque. The defendants be, thus, restrained from entering into the mosque save and except 10/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC for the prayers; fve times a day. Other injunctive reliefs are also sought. The defendants being the members of the Muslim community, indubitably, cannot be restrained from entering into the mosque. However, if the management of the said mosque vests with the plaintiffs, the defendants have an obligation not to cause obstruction in the management of the affairs of the mosque. The learned Judge was of the view that the plaintiffs are seeking injunctive reliefs for enforcement of their civil rights. Whether this approach is justifablee
9. Evidently, the tussle between the plaintiffs and defendants is for control over the management of the affairs of the mosque. Indisputably, the mosque stands on the suit property. Undoubtedly, the plaintiffs application to register the suit property, D.X./6, Shimla Nagar, as the property of the trust has been rejected. Yet, it is imperative to note that the endeavour of the defendants to get a trust registered under the name and style of 'Madarsa and Masjid House Committee', with the very same property as the property of the trust has not been countenanced by the Assistant Charity Commissioner. By order dated 6th April, 2010, though the Assistant Charity Commissioner ordered that the public trust be registered under the name and style of 'Madarsa and Masjid House Committee' but with a rider that it would be a trust without any immovable 11/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 ::: WP-7105-15.DOC property. The defendants also do not have, ex facie, any right, title and interest in the land over which the mosque is situated. The situation, which thus obtains is that, the plaintiffs claim to be in continuous management of the affairs of the trust Anjuman Talim-O-Tableegh P.T.R. No.E-16745 (Mumbai) in the capacity of its trustees. Whereas, at the instance of defendant no.3 a new trust 'Madarsa and Masjid House Committee' is registered.
10. If the averments in the plaint and the reliefs claimed by the plaintiffs are considered, in the aforesaid backdrop, then it becomes evident that the injunctive reliefs claimed by the plaintiffs squarely fall within the jurisdiction of the Civil Court. The learned Judge, City Civil court was within his rights in returning a fnding that the City Civil Court had jurisdiction to entertain the suit. The essential dispute between the parties, therefore, is not amenable to the exclusive jurisdiction of the authorities under Act, 1950.
11. The conspectus of the aforesaid consideration is that the impugned order does not suffer from any perversity, infrmity or irregularity which warrants interference by this Court in exercise of the writ jurisdiction. Resultantly the petition deserves to be dismissed.
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12. The petition stands dismissed. No costs.
Rule discharged.
13. It is hereby made clear that the observations hereinabove shall not be construed as an expression of opinion on the merits of the suit and the trial court shall not be infuenced by any of the observations while deciding the suit.
[N. J. JAMADAR, J.] 13/13 ::: Uploaded on - 19/11/2019 ::: Downloaded on - 19/11/2019 22:56:50 :::