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Sayad Hashim Saheb Valad Sayad Ahmed Saheb Vs. Huseinsha Valad Karimsha Fakir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom429
AppellantSayad Hashim Saheb Valad Sayad Ahmed Saheb
RespondentHuseinsha Valad Karimsha Fakir
Excerpt:
civil procedure code (act xiv of 1882), section 11 - jurisdiction of civil courts--suit for an office to which no fixed fees are attached--regulation ii of 1827, section 21--its application to suits between mahomedans--caste question. - - had it been the intention of the legislature that such a suit should not lie, the same would have been clearly provided for. 56 of 1873 on 4th october, 1876,-see the judgment (exhibit 31)--in which it was found that the plaintiff had a better right than any one else to perform the duties of kazi, and it was stated that he was already khatib. 159 the principle, which should govern such suits as the present suit purports to be, is clearly laid down, and we follow that decision, which we think, is in accordance with law and in consonance also with the..........decided was that the suits in them were not for an office, but for a mere dignity, and that the civil courts ought not. to be involved in the determination of trivial questions of dignity and privilege, even though connected with an office--narayan vithe parab v. krishnaji sadashiv i.l.r. 10 bom. 238. they nowhere lay down the rule that a suit for an office will not lie, because the office is a religious one to which no fixed fees are attached. had it been the intention of the legislature that such a suit should not lie, the same would have been clearly provided for. such suits have been and are constantly brought. this very plaintiff has before brought a somewhat similar suit to the present which was decided in his favour by the high court in special appeal no. 56 of 1873 on 4th.....
Judgment:

Parsons, J.

1. The plaintiff in this case, alleging that he is the vatandar kazi and the khatib of Gadag, and that the defendant obstructs him in the exercise of the latter office, sues for a declaration of his sole right to hold the office of khatib and for an injunction to restrain the defendant from obstructing him in the enjoyment of that office. The lower Courts have dismissed the suit: the Court of first instance--on the ground that the suit was barred by Section 21 of Regulation II of 1827, the point at issue being a caste question; the appellate Court--on the ground that the suit would not lie, as it was one regarding the right to perform a merely religious duty to which no fees are attached as of right. We accept the finding that no fixed fees are attached to the office as one of fact (indeed the correctness of the finding is not disputed on behalf of the plaintiff); still we think that both the Courts are wrong in the view they have taken of their want of jurisdiction. No case has been cited to us in which it has been decided that Section 21 of Regulation II of 1827 applies to suits between Mahomedans, and we cannot hold that a dispute as to the right to an office, such as the office of khatib is said to be, is a caste question within the meaning of the term as used in that section. We must take it, then, that this suit is not barred by Regulation II of 1827, and it is not alleged that it is barred by any other enactment now in force. The Civil Procedure Code provides in its eleventh section that 'the Courts shall have jurisdiction to try all suits of a civil nature * * *' and it explains that 'a suit in which the right to an office is contested--is a suit of a civil nature, notwithstanding that such right may depend entirely On the decision of questions as to religious rites or ceremonies.' The present suit is one in which the right to an H office is contested; and the mere fact that there are no fixed fees attached to the office does not under the Code make the suit inadmissible. The cases cited by the District Judge do not apply. The principle on which they were decided was that the suits in them were not for an office, but for a mere dignity, and that the Civil Courts ought not. to be involved in the determination of trivial questions of dignity and privilege, even though connected with an office--Narayan Vithe Parab v. Krishnaji Sadashiv I.L.R. 10 Bom. 238. They nowhere lay down the rule that a suit for an office will not lie, because the office is a religious one to which no fixed fees are attached. Had it been the intention of the Legislature that such a suit should not lie, the same would have been clearly provided for. Such suits have been and are constantly brought. This very plaintiff has before brought a somewhat similar suit to the present which was decided in his favour by the High Court in Special Appeal No. 56 of 1873 on 4th October, 1876,--see the judgment (Exhibit 31)--in which it was found that the plaintiff had a better right than any one else to perform the duties of kazi, and it was stated that he was already khatib. In Mamat Ram Bayan v. Bapu Ram Atai Bura Bhakat I.L.R. Cal. 159 the principle, which should govern such suits as the present suit purports to be, is clearly laid down, and we follow that decision, which we think, is in accordance with law and in consonance also with the decisions of this Court. We are of opinion that the present suit will lie, and we, therefore, reverse the decrees of the lower Courts, and order that the suit be heard on the merits. Costs to abide the result.


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