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CASE NO.: Appeal (civil)  7690 of 1995

PETITIONER: IQBAL & ORS.

RESPONDENT: HAKUMUDDIN & ORS.

DATE OF JUDGMENT: 22/11/2005

BENCH: B.P.SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T WITH C.A.NO.7691/1995, C.A.NO.7692/1995 & C.A.NO.7693/1995

B.P.SINGH, J.

       I.A.Nos.1 and 2 for deleting the names of some of the appellants are  allowed.         

       In these appeals, a common order of the High Court has been  challenged. The High Court, by its impugned order, upheld the order of the Trial  Court striking out certain paragraphs in the pleadings.  The Trial Court had  struck out portions of the written statement, as also paragraph 5 of the plaint.          The suits in question has been filed by Shri Gulam Abbas and others,  who claim to be Dawoodi Bohras and who accept the Dai-ul-Mutlaq as their  spiritual leader.  They claim to be residents of Udaipur where there is a settlement  of  Dawoodi Bohras, who owe allegiance to their spiritual leader and religious  head.  The suits have been filed in a representative capacity on behalf of Dawoodi  Bohras owing allegiance to their spiritual leader.  The case of the plaintiffs is that  the defendants and others who style themselves as Bohra youth Association and  who have formed a separate organisation named as  Dawoodi Bohra Jammat of  Udaipur, have challenged the spiritual and religious authority of the Dai-ul- Mutlaq,  and have wrongfully interfered with the rights of the plaintiffs and other   Dawoodi Bohras who offer their congregational prayers led by Pesh Imams,  appointed or nominated by or under the authority of  Dai-ul-Mutlaq in  masjids/mosques at Udaipur.  The plaint refers to the various properties of the  community, including four mosques/masjids at Udaipur.  Their grievance is that  the defendants have been interfering with their right to offer namaz led by Pesh- Imams in the four masjids/mosques and have been  wrongfully disturbing the  other prayers being said in the four masjids/mosques.  They have been interfering  with and disturbed other religious gatherings,  functions, and ceremonies being  conducted in the said masjids/mosques with the permission and under the  authority of  Dai-ul-Mutlaq. They have at times resorted to violence which  necessitated the religious functions and ceremonies being held at some private  residences.  In this manner, the defendants have interfered with the beneficial   use of the said masjids/mosques by the members of the  Dawoodi Bohra  community, who owe allegiance to their spiritual leader and religious head,  namely, Dai-ul-Mutlaq.  The defendants have no right to object to the plaintiffs’  aforesaid rights in the masjids/mosques.            The plaintiffs have sought the following reliefs namely, that the  defendants be restrained by permanent order of injunction from preventing the  plaintiffs and other Dawoodi Bohras owing allegiance to their spiritual leader and  religious head, from entering the said masjids/mosques and/or from offering or  participating in the Imamat/Jamaat Namaaz/prayers led by Pesh Imams and/or  attending or participating in any Vaiz, Majils or other religious functions,  gatherings or ceremonies etc.etc.  A relief has also been asked for, that the  defendants may be restrained by an order of injunction from holding their  separate Imamat/Jamaat Namaaz and/or from holding Vaiz Majlis etc. in the  aforesaid four masjids/mosques, as stated above.

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       It would thus be seen that the suit essentially is for permanent  injunction restraining the defendants from interfering with the  rights of the  plaintiffs who offer namaaz etc. and who take part in ceremonies held in the  aforesaid four masjids/mosques.  The allegation against the defendants is that  they have set up their own organisations who have challenged the authority of the   Dai-ul-Mutlaq in these matters, and who have prevented the plaintiffs from  exercising their rights, sometimes with the use of violence.  Under these  circumstances, to vindicate their rights, the plaintiffs have sought appropriate  orders from the Court.         As we have noticed earlier, paragraph 5 of the plaint has been struck  out by the Trial Court, which order has been affirmed by the High Court and no  appeal has been preferred against that order.  We are only concerned with the  striking out of portions of written statement by the Trial Court, which has been  affirmed by the High Court.         In paragraph 1.2 of the written statement filed by the defendants,  certain allegations are made with regard to the priestly class having started  certain practices in the name of religion which amounted to commercialisation of  religion.  In this regard, a reference has been made to "Mishaq", which according  to the plaintiffs, is a religious doctrine or a tenet.  According to the defendants,  even though "Mishaq" has remained a major ritual, bearing no particular  significance in places like India, yet it is implemented requiring declarations to be  made on oath.  The defendants have described the nature of oath subscribed to by  the members of the community.  They have also referred to two other  rituals,  namely "Raza" and "Barrat" and have alleged that these rituals have become  deadly weapons in the hands of the priestly class.  They have offered their views  on  these rituals, which, according to them, is wholly unnecessary as they are  never a part of the religious tenet and in any event they are being misused.  The  aforesaid practices gave rise and  impetus to a reformist movement in the  community against commercialisation of  religion which became a world  movement.  It is contended that the Bohra Youth Association accept the Dai-ul- Mutlaq as the head of the community, but insist on reforms in regard to Razzaq,  Misaq and Barrat etc.  They have also referred to other achievements of the Youth  Association like contesting the  elections etc.           It would be noticed that so far as paragraph 1.2 of the plaint is  concerned, there is hardly any reference to "Mishaq", "Barrat" and "Raza".  In  paragraph 1 of the plaint the plaintiffs have only averred that the Bohra  community as its spiritual leader the Dai-ul-Mutlaq and the plaintiffs  owe  allegiance to him. That the suit has been filed on behalf of those who recognise  him as their spiritual leader and religious head.  In paragraph 2 of the plaint it is  stated that the defendants styled themselves as Bohra Youth association.  They  formed an organisation.  The plaintiffs have challenged the defendants’  right  to  challenge the authority of  the spiritual and religious head, the Dai-ul-Mutlaq and  to interfere with the rights of the plaintiffs and other Dawoodi Bohras to offer  congregational prayers led by Pesh Imams appointed or nominated by the Dai-ul- Mutlaq in Masjids/mosques at Udaipur.         The High Court has considered the question as to whether the  averments in paragraph 1.2 of the written statement are at all necessary having  regard to the averments in the plaint and the nature of the suit.  The High Court  has taken the view that the plaintiffs have claimed the reliefs/injunction on the  basis of allegations that Dai-ul-Mutlaq and persons appointed by him or his Amil,  have the authority to lead the namaaz and conduct the religious rituals in the  masjids/mosques and that right has been denied by the defendants.  Thus, the  object of the suit is to obtain an injunction restraining the defendants from  preventing the plaintiffs and other Dawoodi Bohras who owe allegiance to their  spiritual leader and religious head from entering the four masjids/mosques and  from performing the religious ceremonies etc.  The High Court has also noticed  that there are no allegations in the plaint, nor is any relief claimed, regarding the  manner and the authority under which the Dai-ul-Mutlaq has a right to exercise  the power as regards  "Mishaq", "Barrat" and "Raza", nor is there  any prayer  made for restraining the defendants from interfering in exercise of those rights in  any particular manner.  The High Court, therefore, concluded that in the absence  of any relief sought in respect of "Mishaq", "Barrat" and "Raza" and having regard  to the frame of the suit, the case set up by the defendants regarding "Mishaq"  "Barrat" and "Raza" is not at all  relevant.  The  reading of the plaint and the  reliefs claimed do not show that any relief has been claimed based on  allegations

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made with regard to  "Mishaq", "Barrat" or "Raza".  The reference to "Mishaq",  "Barrat" and "Raza" is not relevant for making out the case set up by the  defendants.  In these circumstances, it is found that the averments made in  paragraph 1.2 of the written statement are not relevant, and it is merely an  attempt to enlarge the  scope of the suit filed by the plaintiffs.  It is, therefore,   concluded that the averments in paragraph 1.2 of the written statement are  unnecessary, and shall embarrass  and delay the fair trial of the suit if permitted  to stand as they are.         We find ourselves in complete agreement with the view expressed by  the learned Judge.  It must be noticed  that so far as the  Dai-ul-Mutlaq  is  concerned, there  is not even a party in the suits.  Therefore, the question as to  whether "Mishaq", "Barrat" and "Raza" are rituals which are wholly unnecessary,  or in regard to which the  Dai-ul-Mutlaq  has been acting in an arbitrary manner  by abusing his authority as spiritual head, is not at all relevant.  In the connected  suit, if such questions are raised which are found to be relevant, they will be gone  into, since that suit has been filed by the   Dai-ul-Mutlaq himself.  So far as the  instant suit is concerned, to us it  appears that the pleadings contained in  paragraph 1.2 of the written statement to the extent that they have been struck  out by the High Court, are wholly unnecessary and is bound to delay the disposal  of the suit, if parties are permitted to lead evidence on such  unnecessary issues.   We do not find that the aforesaid pleading has any connection with the averments  in the plaint or with the reliefs claimed in the suit.  Similarly a portion of  paragraph 5 of the written statement has been struck out because it contains  unnecessary averments regarding exploitation in the garb of "Mishaq".    Only a  portion of paragraph 5 of the written statement has been struck out, though  paragraph 5 of the plaint has been struck out in its entirety.  However, we do not  wish to make any directions in this regard.  In paragraph 27 of the written  statement certain irrelevant averments have been made with regard to defendants  not being permitted to enter into any of the community’s masjids/mosques etc.  outside Udaipur and   other places.  The High Court, in our view, has rightly  struck out  the portion of paragraph 27 of the written statement, as the same will  only unnecessary delay the disposal of the suit if evidence is  to be brought  on  record which is wholly unnecessary.  Similarly, paragraph 33 of the written  statement has been deleted by the High Court. Paragraph 33 contains averments  with regard to "Mishaqs" and "Barrats". We are of the view that the averments are  wholly unnecessary, having regard to the frame of the suit and the nature of the  reliefs prayed for.

       Counsel for the appellant relied upon three decisions reported in  Anderson Kirkwood Tennent Vs. Walter Michel reported in AIR 1925 Calcutta 860,  All India Reporter Ltd. Vs. D.D.Datar reported in AIR 1951 Nagpur 412 and Anant  Balkrishna Naik Vs. Govind Datta Gaunderkar reported in  AIR 1976 Goa 74.  We  have carefully perused these judgments and we are of the view that the law laid  down in those cases is not applicable to the present case.  However, having regard  to the findings recorded by the Trial Court as well as the High Court as also the  finding recorded by us, portions of the written statement which have been struck  out are  wholly unnecessary and  therefore, have been rightly struck out.  The  High Court has rightly not gone into the question as to whether the averments in  the written statement are scandalous, frivolous or vexatious.  It is not necessary  for us also to express any opinion on this aspect of the matter.   

       In the result, we find no merit in these appeals and the same are  accordingly dismissed.  No order as to costs.