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Latif HoseIn Vs. Mohamed Abdul Hafiz and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal524
AppellantLatif Hosein
RespondentMohamed Abdul Hafiz and ors.
Excerpt:
jurisdiction of civil court - right of suit--suit for declaration of right to carry religious emblems in a procession and for damages. - .....there is, we are told, no independent evidence of any sunni of any position which shows that the sunni community would be in any way offended by a procession of this kind. that being so it is perfectly clear that a procession of the description contemplated by the plaintiff is inoffensive to the sunni community, and is one which the plaintiff is entitled to inaugurate in accordance with law. it is very commendable, we may here notice, that, instead of doing as many others might have done under similar circumstances, that is taking the law into his own hands, the plaintiff resorted to a court of justice which would be able to determine a matter of this kind free from the heat of any religious feeling. it is not necessary for us to say more on this subject.6. it is complained that the.....
Judgment:

Trevelyan and Beverley, JJ.

1. Although this appeal at first sight appeared somewhat formidable, and we were led to expect that very serious questions, having an important effect upon the religious rights of the Mahomedan community, had to be considered in it, yet soon after the [525] opening of the appeal by the learned Moulvie who appeared for the appellants had commenced, it became abundantly apparent that there was no substance at all in the appeal.

2. This suit owes its origin to an unfortunate dispute between the Shea and Sunni inhabitants of a village called Pali in the district of Gya, and it is much to be regretted that the good sense of the members of the Mahomedan community in that village did not prevent, not only the expenditure of the money which has been thrown away in this litigation, but also the expression of the high and intemperate feeling which was shewn in this matter. It seems that the plaintiffs and the defendants are sharers in the village. The plaintiff is a Shea, and desired at the Mohurrum to take through the streets or lanes of this village a procession, which, besides including tazias which are admittedly innocuous, was to include a standard and flags and a massak pierced by an arrow. For the first time apparently he contemplated adding these emblems of his own branch of the Mahomedan religion to the procession. This was resented by some of the Sunni inhabitants of the village, and threats were offered of violence in case the plaintiff carried out this contemplated procession. Certain communications were made by, the defendants to the officers of the police, and the procession was stopped in that particular year. The plaintiff then, in order to assert his rights, brought this suit in the Civil Court. The defence was shortly that a suit of this kind will not lie, and then by evidence it was sought to make out that emblems of the description that the plaintiff sought to have carried in his procession would cause very great and bitter offence to the Sunni members of the community in that village.

3. It is quite clear to us that the Subordinate Judge is right in holding that a suit of this description will lie either on the footing that the roads were roads of which the public had the use, or on the footing that the plaintiff had a right as one of the sharers in this village. Every person who uses a highway for a legitimate purpose, that is to say, for the purpose of walking along it alone, or even as a member of a procession which is allowed by law, and which is inoffensive to the community, is entitled to go along that highway without any impediment; and the man who obstructs him in the use which the law, gives him [526] of that highway may be liable to have a civil suit brought against him. The cases in which it is laid down that a private right of action floes not lie in respect of an offence against the public relating to a highway, unless special damage is proved, can have no application to the present case, for two reasons: in the first place, because here the plaintiff's private right was infringed; and, secondly, because there was actual damage resulting to him from his being prevented from using this highway in the manner permitted him by law. He is not suing here simply as a member of the public which has been aggrieved, but as a private individual who has himself suffered a private and individual wrong. A number of cases have been mentioned by the Subordinate Judge, and he has, we think, come to a right conclusion that the suit will lie.

4. There is practically little else in the case. The story why these emblems are carried has been related; and, although to some extent, they commemorate events, the memory of which may be calculated to create antagonism between these two sects of the Mahomedan religion, yet, having regard to the evidence in the case, it is quite clear that no reasonable member of the Sunni sect could be offended by emblems of this kind.

5. The learned Moulvie, who argued the case before us for the appellant, with his usual fairness pointed out evidence which had been given on the Shea side of the controversy, that is, on the plaintiff's side, by an independent Sunni, namely, Mahomed Ehya, whose position is such that the learned Vakil for the appellant, not only did not venture to attack him, but used words expressive of the high position he occupied in the Mahomedan community. This gentleman is a Sunni. He is apparently a gentleman of some position. He is a pleader and an Honorary Magistrate of Patna. He is also a Superintendent of the Jama Masjid in the Madarsa Mahalla of Patna. Therefore, having regard to his position as a lawyer, he is a person on whose evidence we might fairly rely, and having regard to his position as a Superintendent of the Jama Masjid, he is a person who might be expected to be acquainted with the rules and customs, not only of his own co-religionists but also of those belonging to the Shea sect. After referring to the way in which these emblems are carried about he [527] says: 'The taking out of the Alam is no contempt of the Sunni religion.' There is, we are told, no independent evidence of any Sunni of any position which shows that the Sunni community would be in any way offended by a procession of this kind. That being so it is perfectly clear that a procession of the description contemplated by the plaintiff is inoffensive to the Sunni community, and is one which the plaintiff is entitled to inaugurate in accordance with law. It is very commendable, we may here notice, that, instead of doing as many others might have done under similar circumstances, that is taking the law into his own hands, the plaintiff resorted to a Court of Justice which would be able to determine a matter of this kind free from the heat of any religious feeling. It is not necessary for us to say more on this subject.

6. It is complained that the plaintiff ought not to have had given to him such a large sum as costs. The plaintiff was compelled to go into Court. The matter of costs is a matter within the discretion of the Court, and we see no reason to interfere with what the lower Court has awarded to the plaintiff.

7. There are cross-objections by the respondent as regards damages. The Court below has awarded Rs. 50 as nominal damages. The plaintiff complains that he ought to have got more. But having regard to all the circumstances, and to the fact that this was the first occasion that the right was claimed, and that the object of the suit was to enforce that right and clear away any objection which might be raised with regard to a procession of this kind, we think that the learned Subordinate Judge was right in giving nominal damages only.

8. The result is that the appeal must be dismissed with costs, and the cross-objections disallowed.


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