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Mahomed Hanif Sahib and ors. Vs. Anagappa Mudali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.106
AppellantMahomed Hanif Sahib and ors.
RespondentAnagappa Mudali and ors.
Cases ReferredPrivy Council Sadagopa Chariar v. Krishnamoorthy Rao
Excerpt:
specific relief act (i of 1877), section 54, illus. (b) - declaratory decrees, form of--specific determination of rights in dispute--larger relief than in plaint, award of, illegal--injunction, grant of, against a community, when permissible--penal code (act xlf of 1860), section 396, effect of, on declaratory decrees of civil courts. - - the disturbance was made during hours which bad been notified by the district magistrate to the knowledge of accused as those during which divine worship was carried on in the mosque......took a different view.4. the next objection has more force. the subordinate judge has altered the decree granted by the district munsif; and it is urged that the alteration introduced into the declaratory portion goes beyond the plaint prayer, and the findings. the munsif's decree declared that the plaintiffs are entitled 'to celebrate the mariamman festival at the plaint medai without any restriction as to the time for playing music.' the subordinate judge's decree purports to confirm that of the munsif, in so far as the latter declares the plaintiffs' right to celebrate the mariamman festival in question and to carry on the procession with music without any restriction as to time.' appellants' vakil points out that the munsif's decree said nothing about the procession (to and from the.....
Judgment:

1. The appellants in this second appeal, representing1 the Muhammadan residents of Lalgudi, appeal against a decree of the Snbordinate Judge of Trichinopoly granted in favour of the respondents, who sued as representatives of the Hindu residents of the same village. The decree in question declares the rights of the plaintiffs (respondents) in connection with the celebration of the annual Mariamman festival at the 'Mariamman Medai' and gives an injunction forbidding interference by the defendants (appellants).

2. The dispute arises out of the proximity of the Medai to a Muhammadan mosque, and the alleged interference with worship of the latter incidental to the use of music by respondents in connection with their festival.

3. The first objection taken by appellants is that the decree of the Subordinate Judge is illegal, inasmuch as it goes beyond the general nature of the deoree granted in a somewhat similar case by this Court vide Muthialu Chetty v. Bapun Sahib 2 M.L 140. No doubt the decree now under appeal is not more specific; but it is not on that account illegal. It is desirable that the Court by its decree should determine the rights in dispute as definitely as the evidence before it will permit; and we can find nothing either in the judgment in Muthialu Chetty v. Bapun Sahib 2 M.L 140 or in the later judgment in Sundram Chetti v. Queen and Ponnusami Chetti v. Qusen 6 M.L 203 : 2 Weir 77 in which its meaning was discussed and explained, to suggest that the learned Judges who decided those cases took a different view.

4. The next objection has more force. The Subordinate Judge has altered the decree granted by the District Munsif; and it is urged that the alteration introduced into the declaratory portion goes beyond the plaint prayer, and the findings. The Munsif's decree declared that the plaintiffs are entitled 'to celebrate the Mariamman festival at the plaint Medai without any restriction as to the time for playing music.' The Subordinate Judge's decree purports to confirm that of the Munsif, in so far as the latter declares the plaintiffs' right to celebrate the Mariamman festival in question and to carry on the procession with music without any restriction as to time.' Appellants' Vakil points Out that the Munsif's decree said nothing about the procession (to and from the Mairamman Medai), and that the right to take the procession with music past the mosque is distinguishable from the right to play music at the Medai; and argues that the first mentioned right is not included in the plaint prayer, nor covered by the frame of the 3rd issue.

5. It is open to argument whether the plaint prayer was intended to cover the procession incidental to the ceremony (vide paragraph 2 of the plaint); though the concluding words of paragraph 12 (a) are against suet an interpretation. The issue is also somewhat ambiguous. But the finding of the Munsif (vide paragraph 20 of his judgment) is certainly confined to proceedings at the Medai itself; and so is his decree. Plaintiffs' memorandum of objections to this decree preferred to the Subordinate Judge only deals with costs and the refusal of an injunction; it is not pleaded that the decree was inadequate to meet the plaint prayer. Nor is this point dealt with in the Subordinate Judge's judgment. The Subordinate Judge accepts the Munsif's finding on, the 3rd issue and assigns no reason for modifying the terms of the declaration. In fact from the wording of paragraph 5 of the judgment it would seem that the Subordinate Judge was unaware that he was effecting any' modification; and was under a misapprehension as to the exact terms of the Munsif's decree. However this may be, we think the alteration introduced cannot be supported; and the form of the Munsif's decree must be restored.

6. The next objection is that both decrees are illegal in that they may be regarded as authorising an act, which is declared criminal by Section 296, Indian Penal Code. It is, of course, unnecessary to say that a declaratory decree of a Civil Court should not be treated as authorising an act which is per se a criminal offence. Appellants' Vakil argues, relying on Public Prosecutor v. Sunku Seethaiah 6 Ind. Cas. 774 : 7 M.L.T. 430 : 21 M.L.J. 71 : 11 Cri. L.J. 400 : 34 M.L 92 that the word 'voluntarily' in Section 296, Indian Penal Code, simply means knowingly' and that any disturbance of a religious assembly is always a criminal offence, if caused 'voluntarily' in this sense of the word. In spite of one or two passages in the judgment, we take leave to doubt whether the learned Judges intended to lay down so broad a proposition. The facts of the case before them were very simple; the disturbance was made during hours which bad been notified by the District Magistrate to the knowledge of accused as those during which divine worship was carried on in the mosque. Great stress is laid on this, both in setting out the facts at the commencement of the judgment and in applying the previous rulings in Muthialu Chetty v. Bapun Sahib 2 M.L 140 and Sundram Chetti v. Queen and Ponnusami Chetti v. Queen 6 M.K 203 : 2 Weir 77. It is not necessary for us in the present connection to interpret the words of Section 296, Indian Penal Code. In disposing of a charge under that Section which might arise out of this dispute in future, the existence of a declaration such as has been prayed for is doubtless only one of several factors which might have to be considered in deciding the guilt or innocence of the accused. But we are clear that there is no conflict between such a declaration and the section quoted; and no reason why on this score the declaration should be refused.

7. Lastly, the objection is taken that no injunction should have been granted against a community. The injunction is granted against defendants Nos. 2 to 8 'as representatives of the Muhammadan community of Lalgudi.' This is the capacity in which they were sued; and if they can be sued in a representative capacity (which is not denied), it is impossible to see why an injunction should not be granted against them in the same capacity. That an injunction can be granted against a community so vaguely defined as the inhabitants of a village' would appear from illustration (p) to Section 54, Specific Relief Act; and in a similar case to this, decided by the Privy Council Sadagopa Chariar v. Krishnamoorthy Rao 30 M.P 185 : 17 M.L.J. 240 : 2 M.L.T. 204 : 4 A.L.J. 333 : 11 C.W.N. 585 : 5 C.L.J. 566 : 9 Bom. L.R. 663 no such objection appears to have been taken. The injunction may stand.

8. The decree of the lower Appellate Court must be modified by the omission of the words 'and to carry on the procession with music'; and with this modification is confirmed.

9. Appellants and the respondents Nos. 1 to 6 will each bear their own costs in this Court. Appellants will be liable for the costs of the 7th respondent.


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