JUDGMENT 1. - This is an appeal by the plaintiffs against the order of the District Judge, Udaipur, dated 31-10-1983, whereby the plaintiffs' application for grant of temporary injunction was rejected. 2. The parties to the suit are Dawoodi Bohras and there is a large settlement of Dawoodi Bohras in Udaipur. The spiritual leader and religious bead of the Dawondi Bohra Community, which is a religious denomination, is the 52nd Dai-ul-Mutlaq His Holiness Dr. Syedna Mohammed Burhanuddin Saheb. The Dawondi Bohra community consists of Muslims of Shia Sect holding in common with all members of that sect, the one belief that there is one God; that Mohammad is His Prophet to whom He revealed the Holy Book (Koran); that Ali, the son-in-law of Mohammed was the Wasi (Executor) of the latter and that Ali succeeded Mohammad by Nas-e-Jali. In common with all members of the Shia Sect, Dawoodi Bohras believe that All, the son-in-law of Muhammad was succeeded by the line of Imams, each of whom in turn was appointed by Nas-e-Jali by his immediate predecessor. At a later date, he Shia Section itself came to be divided into two sects known respectively as Ismailia and Ishna Asharia. Dawoodi Bohras belong to the former sect. and in common with all other members of the Ismailia Section believe that owing to persecution. Imam Tayab (the 21st Imam) went into seclusion and that an Imam from his line will appear, it being their belief that an Imam always exists (though at rimes he may be invisible to his believers while in seclusion); that owing to the impending seclusion of the twenty-first Imam. his predecessor the twentieth Imam, directed his Hujjat (a dignitary ranking next to an Imam) one Hurra-tul-Maleka to appoint a Dar (Missionary). a Mazoon (a dignitary ranking next to a Dai)and Mukasir (a dignatary ranking next to a Mazoon) to carry on the Dawat of the Imam so long as the Imam who remains in seclusion, and to take and receive from the faithful an oath of allegiance. The Dais are known as Dai-ul-Mutlaq'. Thus, the Dai is the representative of the Imam and conveyed God's message to His people. The powers of the Dai are approximated to those of the Imam. When the Imam comes out of seclusion, the powers of the Dai would cease. The chain of inter-cession with the Almighty is as follows :The Dai-imam-Holy Prophet-Allah. Thus, the Dai is the representative of the Imam and conveyed God's message to His people. The powers of the Dai are approximated to those of the Imam. When the Imam comes out of seclusion, the powers of the Dai would cease. The chain of inter-cession with the Almighty is as follows :The Dai-imam-Holy Prophet-Allah. It is further alleged that one, who is initiated into the fold of the community has to give an oath of allegiance known as 'Mishaq' to the Dai-ul.Mutlaq for the time being. The Dai-ul- Mutlaq is not merely a spiritual Leader and religious head of the said denomination, but is the sole trustee of the property of the Dawoodi Bohra Community and the sole right of management and general control thereof is vested in the Dai-ul-Mutlaq. 3. Amongst the properties of the community, there are following four Masjids/Mosques, - (1) Moiyatpura Masjid situated at Moiyatpura Bohrawadi, Udaipur; (2) Vajihpura Masjid situated at Vahihpura, Bohrawadi, Udaipur; (3) Rasoolpura Masjid situated at Rasoolpura (Gulabwadi) Udaipur; and (4) Khanpura Masjid situated at Khanpura (Gulab Bag), Udaipur. 4. The plaintiffs' case further is that in Udaipur the Dai-ul-Mutlaq had from time to time appointed Amils, who have the authority and permission from the Dai-ul-Matlaq for the time being to lead Imamat or, Jamaat Namaz and also to give permission to fit and proper person to lead Imarnat or Jaznaat Namaj and for holding other religious functions and ceremonies in the Masjids and to manage and administer the same for and on behalf' of the Dai-ul-Mutlaq for the time being. 5. The plaintiffs' case further is that sometime in February 1973, a section of the Dawoodi Bohras at Udaipur, including the defendants, challenged and/or rebelled against the spiritual and/or religious authority of the Dai-ul-Mutlaq styling themselves as Bohra Youth Association, and, subsequently they have formed their own separate organisation known as Dawoodi Bohra Jamaat of Udaipur. The members of the said Association or Jamaat have been unauthorisedly and wrongfully holding Vaiz and Majlis during the days of Mohurrum and on ether religious festivals in the aforesaid Masjids and they indulge in vilification of His Holiness Dr. Syedna Moharnmid Burhanuddin Saheb, the 52nd Dui-ul-Mutlaq with a view to hurt the religious susceptibilities and to outrage the religious feelings of the loyal followers of the Dai-ul-Mutlaq. Syedna Moharnmid Burhanuddin Saheb, the 52nd Dui-ul-Mutlaq with a view to hurt the religious susceptibilities and to outrage the religious feelings of the loyal followers of the Dai-ul-Mutlaq. However, at no time the defendants or the members of the said Association or the Dawoodi Bohra Jammat, have held any Imamat of Jammat Namaaz in the said Masjids. The plaintiffs' further asserted that it is an article of faith of the Dawoodi Bohra Community that in any mosque vesting in the Dai-ul-Mutlaq congregational prayers (Imamat Namaaz or Jamaat Namaaz), can he offered or said by the Pesh Imam appointed or nominated by the Dai-ul Multaq and it is also an article of faith of the Dawoodi Bohra Community that no other religious function and/or gatherings (preaching religious ceremonies or Majlis for the celebration of death anniversaries (Urus) or gathering for recitation of Marasias, 'Nats, Qasida (Penegeric poems) can be held without the permission of the Dai-ul-Mutlaq or his representative for the time being at a given centre/ place. The defendants and other members of the said Association and the Jamaat, wrongfully interfered with the plaintiffs' right to offer Imamat or Jamaat Namaaz led by the Pesh Imam appointed or nominated by or under the authority or permission of Dai-ul-Mutlaq in the said Masjids and wrongfully disturbed the said prayers and also wrongfully interfered with or disturbed Vaiz and other religious gatherings and functions and ceremonies being conducted in the said Masjids with the permission and/or under the authority of Dai-ul-Mutlaq. They resorted to violence. Thereupon, with a view to maintain law and order the Dai-ul-Mutlaq directed that the said prayers and other religious functions the ceremonies be held at some private place. As per the religious tenets of their faith, regular Imamat or Jamaat Namaaz were offered in the said Masjids. such as, Fajar Namaaz (Morning Prayers), Zohar and Asar Namaaz (noon and after-noon prayers), Magrib and Isha Namaaz (Evening prayers) in pursuance of the directions of the Dai-ul-Mutlaq the congregational prayers ware held at two private places of Saboonwala and Rassawala. The owners of the two private places intimated that their said premises would no longer be available for the purpose. The owners of the two private places intimated that their said premises would no longer be available for the purpose. The defendants and the other members of the said Association or the Jamaat have interfered with the access/benefit and use of the said Masjids/ Mosques for congregational prayer- in accordance with their religious tenets, faith and beliefs, of which they have no right. The plaintiffs, therefore, instituted a suit in their representative capacity against the defendants in their representative capacity and have prayed that the defendants in their representative capacity and all other members of Bohra Youth Association or the so-called Dawoodi Bohra, Jamaat be restrained from preventing tare plaintiffs and other Dawoodi Bohras owing allegiance to their spiritual leader and religious head, the Dai-ul-Mutlaq for the time being, from entering the said Masjids and from offering or participating in the Imamat,'Jamaat Namaaz led by the Pesh Imam appointed or nominated under the authority or permission of the Dai-ul- Mutlaq and/or attending or participating in any Vaiz, Majlis or other religious functions, gatherings and ceremonies held with the permission of and under the authority of the Dai-ul-Mutlaq and under his auspices and from in any manner interfering or disturbing imamat/Jamaat Namaaz being conducted in the said four Masjids or from disturbing or interfering with Vaiz. Majlis or any other religious ceremony or function or gathering being held and/or conducted with the authority and for permission or under the auspices of the Dai-ul-Mutlaq. The plaintiff, further pray that the defendants and the other members of the said Association or the Jamaat be restrained from holding their separate Imamat/Jamaat Namaaz and from holding Vaiz. Majlis and any other religious functions, ceremonies or gatherings in the said four Masjids. Die plaintiffs alio prayed for ad-interim reliefs. 6. Along with the plaint an application for temporary injunction was also presented praying for the said interim relief. 7. A reply to the application was filed, in which it was stated that the defendants do subscribe to and fully believe in the Ismailia-Tyabia-Dawoodi Bohra doctrine of Dai-hood and never disputed the entitlement of the present incumbent of that high office. They denied the allegations of vilification of the Dai-ul-Mutlaq and it was alleged by them that the non-applicants and others generally known as the Bohra Youth', are in exclusive possession and use of all the four mosques. They denied the allegations of vilification of the Dai-ul-Mutlaq and it was alleged by them that the non-applicants and others generally known as the Bohra Youth', are in exclusive possession and use of all the four mosques. Bohra Youth alone offer Narnaaz and perform other religious ceremonies therein. Pesh Imam functioning thereat are all persons qualified and competent to so function. Both, ordinary and Imamat/Jamaat, Namaaz were offered. The Dai-ul-Mutlaq is the Mutavalli of the suit mosques, withinethe meaning of the Wakf Act, 1954, but he is so only in an ideal sense. The actual day to day management of the suit mosques was in the hands of local 'Panch Bohran' and for the last eight years is being looked after exclusively by the Bohra Youth and the plaintiffs had no hand in the management and were completely ousted firm the use and benefits of the suit mosques. A counter allegation was made by them regarding use of force and violence on the part of plaintiffs and their associates, for which they were prosecuted. Although in reply it was not specifically pledged that for the performance of functions of Pesh Imam, that is, to lead the congregational prayers 'Raja' (permission) from the Dai-ul-Mutlaq or from his Amil is not necessary, however, in the affidavit filed by Gulam Hussain in support of the reply, it was deposed that there is a Pesh Imam, who leads the Namaaz. The Shabab people would always object to offer their prayers behind these Pesh Imam and they contended that the Pesh Imam necessarily needs 'Raja' (permission) from the Dai-ul-Mutlaq or his Amil and that we, the Bohra Youths, do not see any necessity of Raja. The plaintiffs, even though per milted to enter the mosque, would not go there and offer their Namaaz, but forthwith start an agitation on the ground of Rajasthan and create disturbance. Several other objections regarding the maintainability of the suit, were taken and it was alleged that the plaintiffs have neither any prima facie case, nor they would suffer any irreparable injury and the balance of convenience is also not in their favour, so they prayed that the application for temporary injunction be rejected. 8. The patties submitted their affidavits and further submitted rejoinders and replies to the rejoinders supported by several affidavits. 9. The learned District judge, after hearing the arguments, rejected the application by the impugned order. 8. The patties submitted their affidavits and further submitted rejoinders and replies to the rejoinders supported by several affidavits. 9. The learned District judge, after hearing the arguments, rejected the application by the impugned order. He, however, found that the Dai-ul-Mutlaq is the trustee of the property of Dawoodi Bohra Community in the real sense and not only in the ideal sense. He further found that the Dai-ul-Mutlaq is entitled to manage the properties of the Dawoodi Bohra Community, including the four Masjids and that the Pesh lmams appointed or nominated by or under his authority, have the right to lead the lmamat/Jamaat Namaaz in the four mosques. He also found that the right in respect to offering of prayers is a civil right and for enforcement of such a right, the suit is maintainable. Prima facie it was also found that the plaintiffs' suit is within limitation, as there is a continuing wrong with respect to the plaintiffs' right. The objection as to filing of the suit in the representative capacity, was also negatived and was decided in favour of the plaintiffs and it was found that the plaintiffs being the beneficiaries. have a right to maintain the suit, although the Dai-ul-Mutlaq or Syedna Saheb is not a party to the suit, who is the trustee of the four Masjids. It was also found by the learned District judge that on the ground of alleged delay, acquiescence or waiver, the plaintiffs cannot be denied the interim relief and it has been found that there has been no waiver on the part of the plaintiffs. The learned District Judge also found that the plaintiffs would suffer irreparable injury, when they are deprived of the right to offer prayers and the balance of convenience is also in their favour, as the private places are not available to the plaintiffs for congregational prayers. The learned District judge, however, refused the interim relief on the around that the Court cannot restore any such position, which did not exist on the date of the suit. The suit was instituted on 10th May, 1982. The learned District judge, however, refused the interim relief on the around that the Court cannot restore any such position, which did not exist on the date of the suit. The suit was instituted on 10th May, 1982. and as per plaintiffs' case, the plaintiffs or the people belonging to the Shabab group did not visit the mosques on account of resorting of violence on the part of the non-applicants in the years 1973, 1975 and 1979 and that they started offering prayers in private places of Saboonwala and Rassawala In this connection, the learned District Judge placed reliance on a decision of this Court in (1) Ramchandra Tanwar v. Ramrakh Mal Ameechand (AIR 1971 Rajasthan 292) and also placed reliance on (2) Heera v. Board of Revenue (1966 RLW' 637) and (3) Deva v. Godar (1978 WLN (UC) 354. 10. Aggrieved against the order of the learned District judge, the present appeal has been filed. 11. I have heard Dr. L. M. Singhvi, assisted by Sarva Shri v. H. Muchhala, M. I. Saiyad and N. P. Gupta, for the appellants and Shri Venu Gopal, assisted by Sarva Shri L. R. Mehta, I.L. Gobhil and Yahya Ali, learned counsel for the respondents. 12. The main dispute or the principal controversy between the parties relates to the question of Raja'. According to the plaintiffs it is an essential religious tenet, doctrine, practice and article of faith of the Dawoodi Bohra religious denorninvien that congregational prayers, that is, Imamat or Jamaat Namaaz cart be led only by the Pesh Imam, who is nominated or appointed by the Amil or the Dai-ul-Mutlaq. One, who is not so nominated, or appointed, has no authority to lead the prayers and under the Muslim ecclesiastical law, prayers led by any person. who is not so authorised or permitted, are not valid. According to the plaintiffs it is sacrilegious and contrary to the religious faith that prayers are led by the Pesh Imam, who has no authority to lead the prayer either by the Amil or the Dai-ul Mutlaq. The defendants' case is that 'Raja' is not necessary and any Pesh Imam of their choice can be appointed by the gathering. 13. Dr. L. M. Singhvi submitted that by judicial decisions the status, powers and authority of the Dai-ul-Mutlaq is well established. The defendants' case is that 'Raja' is not necessary and any Pesh Imam of their choice can be appointed by the gathering. 13. Dr. L. M. Singhvi submitted that by judicial decisions the status, powers and authority of the Dai-ul-Mutlaq is well established. He is not only the spiritual leader of the community, but he is the sole trustee of the properties of the community and the management and the control thereof solely vests in him. 14. In (4) Advocate-General of Bombay v. Yusuf Ali Ebrahim and others (AIR 1921 Bombay 338), the official position of the Mullaji Saheb, that is, Dai-ul-Mutlaq, is extracted from Campbell's Bombay Gazetteer (at page 342), as under : "Their leader, both in things religious and social, is the head Mulla of Surat. The ruling Mulla names his successor generally but it is said not always, from among the members of his own family. Short of worship, the head Mulla is treated with the greatest respect. He lives in much state and entertains with the most profuse liberty. On both religious and civil questions his authority is final." On the question, what law ought to be applied, it was observed that the suit ought to be decided in accordance with Shiah Muhammadan Law in so far as the same is applicable to the community, and is not expressly or impliedly negatived. As regards the mosques and their administration it was observed as under : "Now in my judgment it is clear on the evidence (1) that the mosque is God's house and is held by the Mullaji as Dai and passes on his death to his successor on the gadi and not to his heirs, (2) that the Mullaji cannot sell or alienate the mosque, (3) that he cannot close it except for some temporary and necessary purpose, such as, repairs or sanitation, (4) that it is a mosque for the use of the Dawoodi Borah community, although other may occasionally he permitted to use it, and (5) that it cannot be used far any other purpose than a mosque. It is also clear that the old site has been used for a mosque for over 100 years. As stated by Jessel, M R., in Bunting v. Surgent (55)(1880) 13 Ch. D. 330:28 W. B. 123:49 L. J. Ch. It is also clear that the old site has been used for a mosque for over 100 years. As stated by Jessel, M R., in Bunting v. Surgent (55)(1880) 13 Ch. D. 330:28 W. B. 123:49 L. J. Ch. 109:41 L. T. 643, with reference to the user of a non- conformist chapel : "It is pretty good evidence of a trust if 105 years' user can be proved". I need not repeat the facts I have already mentioned as to the re-building and the additional 196 square yards, and the oral Wakf in 1912 and the formal deed of Wakf in 1914 with its express declaration of a trust. On the other hand, it is clear that the sole management and general control of the mosque is vested in Mullaji in right of his office as Dai. He may also have the right to prohibit his followers from attending any particular mosque, but this need not decide. (Underline is mine)It was concluded that in law the Mullaji is the trustee of the suit mosque. 15. In (5) Hasanali and others v. Mansoorali and others ( AIR 1948 P.C. 66 ), their Lordships of the Privy Counsel held that the presen to ccupant must be regarded as Dai-ul-Mutlaq and endowed not only with civil powers as head of the Section and as trustee of the properties, but also ecclesiastical powers as religious leader of the community including that of ex-communication. In that case there was a dispute regarding the appointment of the Dui and his powers of excommunication, While dealing with the argument that excommunication would not exclude the excommunicated persons from rights of property or worship, their Lordship observed that the Dai is a religious leader as well as being trustee of the property of the community and in India exclusion from case is well known. It was further observed that excommunication in their Lordship's view, if justified, necessarily involves exclusion from the exercise of religious rights in places under the trusteeship of the head of the community in which religious exercises are performed. 16. In (6) Sardar Syedna Tahar Salfuddin Saheb v. State of Bombay ( AIR 1962 SC 853 ). the question of constitutionality of the Bombay Prevention of Excommunication Act. 1949 came up for consideration. The effects of the excommunication as held in Hasan Ali's case (supra) were taken note of. 16. In (6) Sardar Syedna Tahar Salfuddin Saheb v. State of Bombay ( AIR 1962 SC 853 ). the question of constitutionality of the Bombay Prevention of Excommunication Act. 1949 came up for consideration. The effects of the excommunication as held in Hasan Ali's case (supra) were taken note of. In para 27 Das Gupta, J. (Speaking for himself and for Sarkar and Mudholkar, JJ.) stated that Dawoodi Bohras believe that since the 21st Imam went into seclusi on, the rights powers and authority of the Imam have been rightfully exercised by the Dai-ul-Mutlaq, as the vice regent of the Imam in seclusion. One of such rights in the exercise of disciplinary powers including the right to excommunicate any member of the Dawoodi Bohra community and it was obarrved in that case that it does appear to be a fact that unquestioning faith in the Dai as the head of the community is part of the creed of the Dawoodi Pohras. Ayyangar, J also observed that it is not a matter of controversy that the Dai-ul-Mutlaq is not merely a religious leader-the religious head of the denomination, but is the trustee of the property of the community. In para 65 it was observed as under : "(65) Coming back to the facts of the present petition, the position of the Dai-ul-Mutlaq, is an essential part of the creed of the Dawoodi Bohra sect. Faith in his spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit. The power of excommunication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity. The purity of the fellowship is secured by the removal of persons who had rendered themselves unfit and unsuitable for membership of the sect. The power of excommunication for the purpose of ensuring the preservation of the community, has therefore a prime significance in the religious life of every member of the group. A legislation which penalise this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the guarantee under Article 25 (1) and rendering the protection illusory." 17. A legislation which penalise this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the guarantee under Article 25 (1) and rendering the protection illusory." 17. In (7) Khalil Ahmed And others v. Israfil and others (AIR 1916 Patna 87), the plaintiffs were the followers of Mirza Ghulam Ahmed of Quadian in the Punjab and are known generally as Ahmadia or Quadians. They were dissenters from what is generally regarded as the orthodox Mohornedan faith, and they claimed a declaration of their right to offer prayers in the mosque both individually and as a congregation and also an injunction restraining the defendants from interfering with them. The defendants pleaded that the plaintiffs were not Mohomedans at all. The Subordinate Judge held that the plaintiffs were Mohomedans but were not entitled to form a separate congregation for prayer in the mosque, and, they were entitled to offer player individually behind the Hanifi Imam of the mosque-, but as they did not desire to do that, he dismissed the suit. The District judge agreed that the plaintiffs must be regarded as Mohomedans and that they could not be allowed to form a separate congregation for prayers in the mosque. He, however, gave them a declaration that they were entitled to worship in the mosque behind the recognised Imam and in the same congregation as the defendants Chemier, C.J., considered the considered the important question in the case as to whether the plaintiffs are entitled to pray for a separate congregation in the mosque, i.e., behind an Imam of their own ? He observed as under : "The claim is an extravagant one and there can be little doubt that if it is allowed, there will be serious trouble in the mosque. The plaintiffs contend that every mosque is dedicated to the worship of God and is open to any Mohomedan to whatever Section he may belong, who chooses to pray in it. The case reported as Empress v. Kamzan (1), Ataullah v. Azim Ullah (2) and Jangu v. Ahmad Ullak (3) and other authorities on which the plaintiffs rely certainly support this contention. The case reported as Empress v. Kamzan (1), Ataullah v. Azim Ullah (2) and Jangu v. Ahmad Ullak (3) and other authorities on which the plaintiffs rely certainly support this contention. but they lend no support to the further contention advanced by the plaintiffs, namely, that the members of any and every Section are entitled to pray in every mosque as a separate congregation behind an Imam chosen by themselves." 18. In (8) Mohd. Wasi and another v. Bachchan Sahib and others (AIR 1955 Allahabad 68), a Special Bench of the Allahabad High Court in respect of right of prayers in mosque, observed as under : "(32) from all the authorities cited above it would appear that it is now well-settled that - (1) a Mosque is dedicated for the purpose that any Muslim belonging to any Section can go and say prayers therein; (2) it cannot be reserved for Muslims of any particular denomination or sect; (3) No one can claim to have the form of congregational prayer usually said in a mosque altered to suit him; (4) even though congregational prayers are said in a mosque in a particular form any Muslim belonging to any other Section can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything 'mala fide' to disturb the others; (5) the object of the dedications can neither be altered nor the beneficiaries limited or charged; and (6) A Muslim will have a cause of action if he is deprived of his right to say prayers in a mosque or is prevented from doing so." 19. If (9) Sifat Ali Khan and others v. Ali Main and others (AIR 1933 All. 284), the plaintiffs suit was for a declaration that they are the mutwallis and Imam of a certain mosque and had been saying Narnaaj as members of Ahmadya or Qadiani Section for more than 25 years. It was held that the plaintiffs had failed to prove that they are mutwallis and Imams of the mosque or they had any right to lead the prayers. 20. In (10) Bohri Anti Mulla party at Malegaon v. Mohri Mulla Party at Malegaon and 7 others, an unreported judgment of the Bombay High Court in Appeal No. 668 of 1963, decided by Chitle, J., on 23rd/24th December. 20. In (10) Bohri Anti Mulla party at Malegaon v. Mohri Mulla Party at Malegaon and 7 others, an unreported judgment of the Bombay High Court in Appeal No. 668 of 1963, decided by Chitle, J., on 23rd/24th December. 1965, a suit for declaration was filed by the plaintiffs that the plaintiffs and each Dawoodi Bohra belonging to Anti-Mulla party have a right to perform all sorts of religious acts in the mosque and they prayed for an injunction restraining the defendants from doing any act so as to obstruct the plaintiffs in exercise of the rights mentioned in the plaint. The plaintiffs did not recognise the head of the Dawoodi Bohra community, that is, Mullaji. The defendants did not dispute the plaintiffs' right to enter into the mosque as muslims and offer prayers. They however, denied that the plaintiffs had a right to have in the mosque in question their own congregation under a separate Imam, and, they further contended that the plaintiffs' right to enter into the mosque and offer prayers etc., is subject to the discipline which is to be enforced in the mosque by the representative of the Mullaji i.e. Amil. Reference was made in that case to the Privy Council decision is Hasan Ali v. Mansoor Ali (supra) and Supreme Court decision in Sardar Sayedna Taher Saifuddin Saheb v. State of Bombay (supra). On behalf of the defendants a contention was advanced that there can be no doubt that the Dai and his representatives are the trustees and they have the right to manage the mosque, which incuides the right to regulate congregational prayers etc., and in view of this the only right which the plaintiffs can have is to enter the mosque to offer individual prayers or to join any congregation held and managed by the defendants, sitting behind the Imarn appointed by the defendants, without in any way disturbing others and it was urged that the Mutawalli appointed by Mullaji Saheb is in charge of the management of the mosque and as he manages through the Imam appointed by Him, it is for them to regulate the congregations, prayers etc. Chitle, J., observed that he is unable to accept the contention that the plaintiffs have a right to hold a separate congregation in view of the two decisions mentioned above. Chitle, J., observed that he is unable to accept the contention that the plaintiffs have a right to hold a separate congregation in view of the two decisions mentioned above. These decisions make it clear that the plaintiffs cannot interfere with the management of the mosque, which rests with Dai-ul-Mutlaq. Merely because the plaintiffs have the right to enter the mosque and offer prayers, it cannot be held that they have also the right of holding an independent congregation, which would obviously interfere wit's the management by Dai-ul-Mutlaq. 21. In (11) Kunhi Mohammed Molla v. Palayam Mohideen Pall Paripalana Committee (I. L. L. 1974 (I) Kerala 48) the question was whether a dissident group of muslims have a legal right to conduct congregational worship under an Imam of their choice ? It was held that the available judicial precedents are decidedly against the appellant. It has been consistently held that such a group of dissidents are entitled to enter the mosque if they please and offer up prayers with the regular congregation behind the Imam chosen by the members of the congregation but they are not entitled to pray in a separate congregation behind an Imam of their choice. The status of the committed as the Muthavalli of the mosque and their right to appoint the Imam were not seriously disputed. It was held that the defendants/appellants are rightly prohibited from holding separate congregational worship in the mosque under any Imam other than the one appointed by the committee. 22. In (12) Haji Mohd. Sayeed and others v. Abdul Ghafoor and others (A.I.R. 1955 All. 688), members of Ahl-e-hadis Section residing in a town brought a suit in a representative capacity claiming injunction against the members of Hanafi Section residing in the same town, also in a representative capacity, to restrain them from interfering with the rights of the plaintiffs to offer prayers in a congregation of their own and according to their own rituals, in certain mosque in the town. The plaintiffs claim was denied and it was held that they were not entitled to the relief claimed. Reliance was placed on the Patna decision (supra) and on Sifat Ali Khan's case (supra). 23. The above case law cited by Dr. The plaintiffs claim was denied and it was held that they were not entitled to the relief claimed. Reliance was placed on the Patna decision (supra) and on Sifat Ali Khan's case (supra). 23. The above case law cited by Dr. Singhvi deals with the position, powers, status and authority of Dai as a spritual and religious leader of the Dawoodi Bohra community and also as a sole trustee of the properties of the said religious denomination and his powers to manage and control the same and some of the cases referred to above, however, deal with the question as to whether the dissenters of the same Section have a right of separate congregational prayers in the mosque and whether the followers of two different sects have any such right. Such a right of separate congregation either to the members of the same Section or group or to different sects or groups have not been conceded by the judicial decisions. 24. References have also been made to certain books and treatises dealing with the question as to who can lead the prayers what would be the effect if prayers are not led by the persons, who have not been appointed by and under the authority of Dai-ul-Mutlaq. In Fassael-e-Saifiyah, Zeiniyah (Collection of problems presented to 43rd Dai-ul-Multaq Syedna Abdeali Saifuddin who was on the throne of Dawat from Hijti year 1213 to 1231 corresponding to 1798 A. D. compiled by Syedna Tyeb Zainuddin-the 45th Dai-ul-Mutlaq who was on the throne of Dawat from Hijri year 1236 to 1252 corresponding to 182 O. A. D. to 1836 A. D.) at page 2 it is stated that nobody can perform the duty of Imam without permission, and, a question was posed that if a certain Amil (representative of the Dai is ordered to go from one place to another, then it is proper for him to lead the people with him in a town in his way, in prayers ? Can he perform Nikab if someone arks him to ? or if someone comes from Mitaq can be taken Misaq ? (Oath of allegiance). It was answered in the manner that this matter pertains to permission. It is compulsory for Amil to request for permission to lend prayers if he has been ordered to go from one place to another place. or if someone comes from Mitaq can be taken Misaq ? (Oath of allegiance). It was answered in the manner that this matter pertains to permission. It is compulsory for Amil to request for permission to lend prayers if he has been ordered to go from one place to another place. Per mission should be sought from the authority who is able to give permission. If permission is granted then he may lead the prayers otherwise nut and so is the decision with regard to Misaa and Nikha. In Matatihul Yaqutatii Hamra, a Risala written in Kamdaan of Hijri Year 1373 by Syedna Tahir Saifuddin Sahed. 51st Dai-ul-Mutalaq a question regarding permission was raised and answered. The question was a Mafsuh (Mulla) who has been entrutsed with the responsibility of amalat (to represent Syedna in a certain place) travelled to another place. He gave permission to conduct prayers (to another Mulla) in the town in which he was Amil. That Mulla conducted the prayers. The Annul returned to his town at night but the Mulla was unaware of it. In the morning the other Mulla conducted morning prayers. The Amil came to the mosque and came to knew about ti is. Whether this Namaaz counted or not ? It was said that the Namaaz conducted by the Mulla is valid because he conducted the prayers with the prior permission of the Amil. 25. In Iqdul Jawahar Fe Awhwal ul Bawahir, it is stated that the true Imam is Imamuz-Zamam and during his seclusion, the Dai-ul Mutlaq. Thereafter tiny post n who is permitted to conduct Imamat prayers, only such a person can conduct the congregational prayers. Generally, persons regarded as Ummala have permission to conduct the congregational prayers. During the absence of the Amil a Mayasaheb or a Mulla, who has been given permission, will conduct congregational prayers. Otherwise, the gathering will offer prayers by themselves. Without permission congregational,congregational prayers cannot be held and if any body conducts such congregational prayers that is not valid. 26. Reference has also been made to Daaim-ul-Islam by Syadna Al-Qazi Al-Moman. Oyun-ul-Akhbar by Syedna Idris Imamuddin, which relate to with drawal of Abu Bakra to lead the prayer by the prophet when he heard Takbear. According to these references Abu Bakra was not authorised to lead the prayers. 26. Reference has also been made to Daaim-ul-Islam by Syadna Al-Qazi Al-Moman. Oyun-ul-Akhbar by Syedna Idris Imamuddin, which relate to with drawal of Abu Bakra to lead the prayer by the prophet when he heard Takbear. According to these references Abu Bakra was not authorised to lead the prayers. The prophet was seriously ill, but despite his illness he came out and put Abu Bakra back seal him apart from the prayers and lead the prayers. These are in the nature of lessons and precepts of the prophet, so they constitute Hadis, the second important formal source of Muslim law, which a, cording to the plaintiff establish that one who is unauthorised to lead the prayers alone can lead the prayers and tone else. 27. Besides these treatises, references have been made to three antedotes or episodes described in Mausam-a-Bahar and Muntaz-ul-Akhbar. These are Jaffer's episode, Bhishti's episode and Ghadir-ul-Khum's episode. The Jaffet's episode relate to the period of Sayedna Ali Shamsiruddin, bin Abdullah Fakhruddin 18th Dai, between 821-832 A. H., corresponding to 1418 to 14213 A.D. Bhisti's incident relates to the period of Syedna Idris Imamuddin 19th Dai between 832- 872 A. H Ghadir-ul-Khum's incident relates to the period of Syedna Mohamed Izuddin Bin Syedna Idris 23rd Dai, between 933 to 996 A. H. corresponding to 1526 to 1539 A. D. From the incident of Jaffer it would appear that the prayers led by him were considered to be invalid, as he was never given Raja' to lead the prayers and he was asked to write to those, whom he led that they should revise their prayers. But it was not so in case of Bhhishti's incident and the prayers led by him were considered to be valid, as the same had the 'Raja'. 28. Dr. Singhvi submitted that the anecdotes and episodes exemplify the application of Hadis and they further exemplify repeated application of principle of Raja' and constitute proof of custom and usage and are in the nature of instructions to the Dai and the community and they are further in the nature of authoritative advisory opinions. 29. Dr. Singhvi then submitted that it is an admitted case of the defendants that 'Raja' developed merely as a practice since generations. 29. Dr. Singhvi then submitted that it is an admitted case of the defendants that 'Raja' developed merely as a practice since generations. On the basis of this admission, it should be taken that a custom and usage had grown in the Dawoodi Bohra community that for holding and conducting congregational prayers, only that Pesh Imam has the authority to lead the prayers, who has been so permitted by the Dai and without snch permission no Pesh Imarn has any authority to lead the prayers. It is a part of the doctrine of Dawoodi Bohra canon law and it is a part of the doctrine of power of management and general control over the mosques vested in the Dai, which includes the power to regulate the congregational prayers. According to Mr. Singhvi. the principle of 'Raja' is so well established by Hadis, custom and usage and consistant religious practice that the same is not open to challenge by the defendants. 30. Mr. K. K. Venugopal, the learned counsel for defendants-respondents, vehemently urged that the Bombay High Court in Advocate-General of Bombay v. Yusuf Ali Ebhrahim and others (supra) has not accepted the claim put forward in respect to the position of Mullaji Saheb. The claim of infallibility, non-accountability and theory of universal ownership was negatived. 31. Reliance was further placed on a decision of the Bombay High Court rendered by Tyabji, J., in (13) Akbarally A. Adamji Peerbhoy and others v. Mahomedally Adamji Peerbhoy and others (A.I.R. 1932 Bombay 356). On the basis of this authority it has been contended that existence of an Amil or authorised leader of prayers is not necessary and a devout muslim may offer prayers five times every day of his life. Even an open space can be a Masjid, Tyabji, J., observed as follows : "The general law of Islam in regard to devotions is so broad and liberal that the mosque in question will even if not endowed with an Amil, be capable of furnishing for any devout Muslim (at least of the Dawoodi Bonra community) a place where he may-with or without the ministrations of an Amil or authorised leader of prayers-five times every day of his life offer prayers. The books speak of an open space of building ground being consecrated as a masjid. The books speak of an open space of building ground being consecrated as a masjid. Nor it is necessary for the purpose of consecrating a place or building as a masjid that there should be an Amil or any other religious officer appointed." The above observations have the approval of the Supreme Court in (14) Syed Mohd. Salie Labhai (Dead) by L.R and others v. Mohd. Hanifa (Dead by L.R and others (A.I.R. 1976 S. C 1569 in para 41). 32. In Akbarally's case (supra) the dispute was with regard to Clause (5) of the Draft Scheme, which conferred the status of sole Atnil of the mosque on His Holiness the Mullaji Saheb of the Dawoodi Bohra community and his successors in office and it conferred on him the sole right to manage, control and regulate the conduct of the religious service and prayers to be performed or led thereat, and to appoint an Amil and Khadim therefore, in accordance with the tenets of the Dawoodi Bohra religion free from any interference or control on the part of the Board of Trustees or any trustee of the trust property. This clause was deleted from the scheme for the reasons stated by Tyabji, J. 33. Mr. Venu Gopal further submitted that the incidents relied upon by the plaintiffs relate to the period when Daiwood and Sultanate, were combined. There are no incidents after the migration of the Dai to the soil of India and there is no established custom and usage to the effect that congregational prayers can only be led by a person, who had the authority or permission from the Dai or his representative Amil. He even emphasised that so far as the Dawoodi Bobra commurity is concerned, customs and usages cannot be considered to be the source of law at all. This assertion or claim is absolutely unfounded. Customs and usages constitute a material source of Mohammedan law, which cannot he denied. In Advocate-General of Bombay's case (supra) as well as in Akbarally'c case (supra) it has been so acknowledged and recognised and all the authorities on Mohammedan Law uniformly lay down that the law applicable may he the general law varied by customs and usages prevelant in a given community but the customs and the usages have to be proved like any other fact. Much relianace, which has been placed on Akbarally', case (supra), in my opinion, does not in any way advance the plea or contention taken by the defendants. Tyabji. J., at page 361 of the report (column 2) Para 2 observed that - "Nevertheless in view of the evidence in this case, I suggested to the counsel that it might be provided that the Mullaji Saheb and his successors in office should have the sole right to regulate, in accordance with the tenets of the Dawoodi Bohra religion. The conduct of the religious services and prayers to be performed and offered at the mosque and to appoint an Amil for officiating in the mosque. (The Khadim is a menial officer and has nothing to do with religious services or prayers; his appointment must apart from the considerations to which I am now alluding rest with the trustees). My suggestion had to be dropped." In the observations extracted earlier it is pertinent to note that an exception has been :Wade where the Mujiri is endow d with an Amil Besides that it has been observed by Tyabji J., that it is better if there are such officers as an ordained Imam or Amil to lead the prayers a muazzin to call to prayers, a Khatib to pronounc the Khutba, a Khadim to sweep the mosque and keep it clean. It would further appear from the text of he report that Mullaji Saheb was not willing to become a trustee, as would appear from para I, second column at page 361 and right hand column of page 363. Besides that in that case no texts were produced, no evidence of custom and usage was produced showing any variation. Still Tyabji.J., directed as under; "It will be the duty of the trustees to make a respectful application to the Mullaji Saheb that he might nominate a duly authorised Amil to lead and regulate the congregational prayers. Besides that in that case no texts were produced, no evidence of custom and usage was produced showing any variation. Still Tyabji.J., directed as under; "It will be the duty of the trustees to make a respectful application to the Mullaji Saheb that he might nominate a duly authorised Amil to lead and regulate the congregational prayers. If for any reason those devout Dawoodi Bohras who attend this mosque are deprived of the opportunity of raining additional merit by joining in congregational prayers under the leadership of such an Amil, even then the mosque will not, as I have already explained, entirely fail of its primary purpose." Thus, it would appear that on the material in the form of affidavits, Tyabji J., was not prepared to base his decision to unsettle the fundamental principles, and so he observed that there is no ground for holding that the community has discarded the general Mohomedan law and adopted customs and usages demanding such a course to be followed, although on the basis of the evidence a suggestion to that effect was made and although it was observed that it is better if there are such officers as an ordained Imam or Amil to lead the prayers and that it will be the duty of' the trustees to make a respectful application to the Mullaji Saheb that he might nominate a duly authorised Amil to lead and regulate the congregational prayers. In my opinion whatever observations have been made are made on the basis of the material placed on record of that case, that would not constitute a precedent for the proposition that in order to lead the congregational prayers 'Raja' is not necessary. 34. Mr. Vcnu Gopal then referred to the extract of Daaim-ul-Islam and Kokab-e-Falak. In Kokab-e-Falak a warning has been appended and a question was posed as to why Bhisti was appointed by Syedna Idris for Imamat for which it so answered in Kokab-a-Falak that Syedna Idris did so only to test the people and show it to the people of Yeman that people of Hind are obedient. When the people of Hind obeyed the command of the Syedna Idris, the Bhisti was called back to Yeman. This warning in Kokab-e-Falak does not in any way affect the power of appointment of Imam and the conduct of congregational prayers, under the leadership of such nominated Imam. 35. When the people of Hind obeyed the command of the Syedna Idris, the Bhisti was called back to Yeman. This warning in Kokab-e-Falak does not in any way affect the power of appointment of Imam and the conduct of congregational prayers, under the leadership of such nominated Imam. 35. Similarly, the extracts referred to from Deuim-ul-Islam as to who should be appointed Pesh Imam and in what priorty and preferences, do not in any way affect the power of appointment as such and the position described in the treatise Maasaeel-e-Saifiyah Zainiya, Mafatihul-Yarqutatil Hamra, Daaim-ul-Islam Igdul Jawahir Fi Ahwal-ul-Bawahir and Oyun-ul-Akhbar, which have been considered above, is not in any way affected. Similarly the effect of the episodes is not in any way destroyed from the warning written in the Kotab-e-Falak. 36. Apart from that it is most significant to note in this particular case that in all the four mosques, since the dates of their establishment, which, as stated at the Bar by the learned counsel for the defendants, is more than 100-125 years, only those Pesh Imams have been leading the congregational prayers, who have been appointed and nominated by the Dai or the Amil. Thus, the religious practice as part of the religious tenet and doctrine had grown that only those Pesh Imam can lead the prayers, who have the authority or the permission from the Dai or Amil. Such is the religious tenet doctrine or faith is evidenced by the extracts from the above treatises and from the aforesaid episodes. That apart, the power of management and control of the mosques and to regulate the congregational prayers vests exclusively in the Dai and so in exercise of that power the congregational prayers can only be led by the Pesh Imams appointed and nominated by the Dai or his representative Amil. 37. Reliance was also placed by Shri Venu Gopal on a S. B. Dccisron of of the Allahabad High Court ill (15) Sarwar Hussain and others v. Additional Civil Judge (J.S C S.), Muradabad and others ( AIR 1983 All 252 ). 37. Reliance was also placed by Shri Venu Gopal on a S. B. Dccisron of of the Allahabad High Court ill (15) Sarwar Hussain and others v. Additional Civil Judge (J.S C S.), Muradabad and others ( AIR 1983 All 252 ). In that case the question was whether a Muhanunedia belonging to a particular Section has an absolute tight to demand that the Imam of not Section would lead him to prayer and restrain others from preventing but from offering his prayers as desired by him In that case the dispute was between Mohammedans owing allegiance to two different schools of thought viz , the Barelvi School of thought and the Deoband, school of thought. The masque was founded by the followers of the Barelvi school of thought. The plaintiffs who were the respondents in the writ petition, claimed that they have a right to be led in their prayers by Imam of their choice i.e. an Imam professing the Deobandi school of thought. This was contested by the defendant petitioners. The learned judge allowed the writ petition and set aside the order to the Additional District. Judge, whereby the injunction was granted and the defendants writ petitioners were restrained from having their own Imam to lead them in their prayers in the mosque. Further it was not a case of Dawoodi Buhra religious denomination, but a case of the two sub-sects of same sect. i.e. Hanafi. 38. In the book 'The religion of Islam' by Maulana Muhammad Ali. 1950 Edition, the general Islamic Law relating to congregtation, is stated as under (at page 428): "As already noted, the essential part of the obligatory prayers called fardz is said in congregation. The very form of the different adhkar to be recited in prayer shows that Islam has laid special stress on prayer in congregation. The whole Muslim body that can assemble in one place, both then and women, must gather at the appointed time, praise and glorify God. and address their petitions to Hint in a body. The very form of the different adhkar to be recited in prayer shows that Islam has laid special stress on prayer in congregation. The whole Muslim body that can assemble in one place, both then and women, must gather at the appointed time, praise and glorify God. and address their petitions to Hint in a body. All people stand shoulder to shoulder in a row, or in several row as the case may, their feet being in one line; and one person, chosen from among them and called the Imam, which means leader, leads the prayer and stands in front of all." As regards the leading of the prayers by Imam, it may be stated that this concept can have no application to the Dawoodi Bohra community. 39. Thus, in my opinion, prima facie it has been satisfactorily established by the plaintiffs on the basis of the material placed on record, that in the four mosques only those Pesh Imams can lead the congregational prayers, who are appointed or nominated by the Dai or his representative Amil and the same is true with regard to other religious functions, ceremonies and gatherings, which are held in the said mosques. It, is established on the authority of judicial decisions and on the authority of Hadis, that customs and usages in general of the community as well as continued religious practice formed as a custom in the suit mosques since the dates of their establishment. This position is also established on the basis that being the trustee of the mosques, the power to conduct and regulate the congregational prayers, and other gatherings, vests in the Dai. 40. Having found that there is a strong case in favour of the plaintiffs, it is to be seen as to whether the plaintiffs have also established the other two essential ingredients or requirements for the grant of temporary injunction, that is, whether the plaintiffs will suffer an irreparable injury in case the interim relief is refused to them and whether the balance of convenience lies in their favour ? 41. Dr. L. M. Singhvi submitted that the plaintiffs have been deprived of their right to offer congregational prayers under the leadership of Pesh Imam appointed and nominated by or under the authority of the Dai and thereby they have been denied to earn additional merit from congregational prayers. 41. Dr. L. M. Singhvi submitted that the plaintiffs have been deprived of their right to offer congregational prayers under the leadership of Pesh Imam appointed and nominated by or under the authority of the Dai and thereby they have been denied to earn additional merit from congregational prayers. Such a denial causes nothing short of an irreparable injury. 42. Mr. Venu Gopal, on the ether hand, submitted that the plaintiffs will suffer no irreparable injury. The defendants are prepared to offer an alternative site to the plaintiffs for holding congregational prayers. The plaintiffs themselves walked out it from he mosque and the case of withdrawal of permission by Saboonwala and Rassawala is all a vague and a contrived one. The plaintiffs came for ward with a case that no Imamat or Jamaat Namaaz were conducted by the defendants from the year 1973 to the date of the filing of the suit. Such a case of the plaintiffs is highly incredible. If the plaintiffs have not been able to have their congregational prayers under the leadership of the Pesh Imam appointed by and under the authority of Dai since February 1973, then the Bohra Youth could not have gone without congregational prayers under the leadership of Pesh Imam of their choice. If the question of irreparable injury is examined in the light of the above facts. is cannot be said that plaintiffs will suffer any irreparable injury. The question of irreparable injury should be decided in the light of the conduct of the plaintiffs. It was also pointed out by Shri Venu Gopal that the plaintiffs and the Shabbb people started hurling congregational prayers at the two private places under the command of the Dai. It is not the plaintiffs' case that the Dai has cancelled or rescinded his order. Unless there is cancellation or rescission of the order by the Dai, the question of holding of congregational prayers in the mosques cannot arise, so long as the order stands. With regard to withdrawal of permission by Saboonwala and Rassawala, it was pointed out that the allegations of the plaintiffs in this regard are vague. If the permission has been withdrawn on the same date, it is nothing but a contrivance to furnish a cause of action to the plaintiff, so as to plead that no private place is available to the Shabab people to hold the congregational prayers. If the permission has been withdrawn on the same date, it is nothing but a contrivance to furnish a cause of action to the plaintiff, so as to plead that no private place is available to the Shabab people to hold the congregational prayers. The plaintiffs did not plead actual date of withdrawal of permission. The reasons given for withdrawal also (it) not appear to be bonafide. So if the plaintiffs' case is viewed in the above light. case of irreparable it,jury is not made out. 43. I have carefully considered the submissions advanced before me. No doubt the parties are at issue as the question as to when Imamat and Jamaat Namaaz were started by the defendants in the mosque and in this conncetion affidavits have been placed on record by both the sides. It is not necessary to weigh the affidavits of the parties on this issue. But it is clear that this case, of the defendants does not appear to be trite and probable that the plaintiffs themselves walked out from the mosque, when admittedly the practice had grown that congregational prayers and other religious gatherings, functions and ceremonies were held by and under the authority of the Dai. The schism, or the division in the community of separation of the Bohra Youth came up only in 1973 and the plaintiffs appear to be true when they allege that the Bohra Youth or the Dawoodi Bohra Jamiat organised by the defendants defied the authority of the Dai, rebelling against the matter of Rajasthan and in course of time selected their Own Pesh Imam to lead the congregational prayers. This must have been done by them simply by brute force. It is the admitted case of both the parties that the prosecutions and counter prosecutions were launched and in all about 295 criminal cases were instituted against each other. When such is the situation, it can hardly be said that the Shabab people walked out of the mosque voluntarily of their own. 44. It is true that the intimation regarding withdrawal of permission by the owners of private places and the facts related to the same have not been pleaded in detail and it has also not been pleaded as to whether any efforts have been made to make other place or places available. 44. It is true that the intimation regarding withdrawal of permission by the owners of private places and the facts related to the same have not been pleaded in detail and it has also not been pleaded as to whether any efforts have been made to make other place or places available. But still from the very beginning it is a clear case of the plaintiffs that the two private places are no longer available to the plaintiffs to hold the congregational places and, when the places are not available, the question of cancellation or rescission of the order by the Dai does not arise. I shall be separately considering the question of delay on the part of the plaintiff to bring this action and whether the plaintiffs can be recused interim relief on that ground. But so far as the question of reparable injury is concerned, what is to be seen is, as to what is the nature of injury, which is complained of and whether the nature of the wrong deeds to be immediately set right ? Starting of cngregational prayers by the defendants in 1973 or 1982 is not in any way material. What is material is, on that, it cannot be denied that till 1973 and even sometime thereafter in some of the mosques. congregational prayers were held under the leadership of the Pesh Imam appointed by or under the authority of the Dai. 45. It may be mentioned that under the Islamic law congregational prayers occupy a significant position. The body as a whole assemble and pray and glorify Allah and Islam has lead stress on prayers in congregation. If the members of the Shabab are deprived of their right to offer prayers in congregation under the leadership of Pesh Imam appointed by or under the authority of the Dai, then it is a specie at injury which cannot be recomperned in any manner, the days of congregational prayers are lost. It may not be a sin to perpetuate deprivation for earning additional merit by offering congregational prayers, according to the defendants, but according to the plaintiffs if they are deprived of this addittional merit to be earned, according to their concience, faith and belief, the injury arising therefrom can only be characterised as an irreparable one. The learned District judge was right in holding that the plaintiffs will suffer an irreparable injury. 46. The learned District judge was right in holding that the plaintiffs will suffer an irreparable injury. 46. Thus, the second essential ingredient is fully made out by the plaintiffs. 47. Dr. Singhvi then submitted that the question of balance of convenience is also to be seen in the light of the injury suffered by the plaintiffs. The balance of convenience is certainly in favour of the plaintiffs and this requirement cannot be negatived and decided in favour of the defendants only on the basis that the plaintiffs remained silent and dormant till 1962, for more than nine years and that in case the plaintiffs are granted interim relief it will necessarily give rise to violence on large scale. If the plaintiff's have been successful to make out a strong prima facie case and a case of irreparable injury, then the plaintiffs should not be denied the interim relief solely on the ground that the defendants will take up arms and report to violence and unleash riots of great magnitude. 48. Mr. Venu Gopal submitted that grant of injunction is an equitable relief depending on the discretion of the Court. When there have been laches on the part of the plaintiffs to assert their right in a court of law, the plaintiffs are not entitled to claim an interim relief. Relief can be granted only when the right is decided in their favour. when the suit is finally decided. Their conduct, that is delay on their part disentitles them to claim any interim relief. Besides that, injunction being a discretionary relief, the court has to see the pros and cons of grant of interim relief. It is not unlikely, looking to the tempers of both the parties and the tense situation that lives may be lost. People may indulge in murderous assaults. It is the duty of the Court to avoid such a sistution and to continue with the state of affairs which presently exists. In this connection reliance was placed by Shri Venu Gopal on some case law, to which reference shall be made presently. 49. It is no doubt true that the suit has been filed after about nine years. But the nature of the wrong complained of is a contitnuing one. It appears that in order to avoid conflicts and clashes under the orders of the Dai, congregational prayers were started at the private places. 49. It is no doubt true that the suit has been filed after about nine years. But the nature of the wrong complained of is a contitnuing one. It appears that in order to avoid conflicts and clashes under the orders of the Dai, congregational prayers were started at the private places. But when intimation was given regarding non-availability of the private places, the plaintiffs were faced with the situation, which compelled them to institute the suit. Merely because for nine years the plaintiffs did not report to any remedy for enforcement of their right would it be proper to deny interim relief on the ground of such a conduct ? It appears that during this interval of nine years clashes had taken place, and they must be in connection with enforcement of right. The question of delay or ladies on the part of the plaintiffs has also to be considered in the light of the injury complained of. The injury is such, which cannot be measured in terms of money and cannot in any way He recompensed. So, merely on the ground of laches, in my opinion the plaintiffs cannot be deniedt he interim relief. The defendants cannot be allowed to take or reap advantage of their own wrong In (16) Mademsetty Satyanarayana v. G. Yelloji Rao and others (AIR 1965. S. C. 1405), it was observed that:- "The result of the aforesaid discussion of the case law may be briefly stated thus : While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiffs as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India. proof of abandonment or waiver of a right is not a precondition necessary to disentitle the plaintiff to the said relief for if abandonment or waiver is established, no question of discretion on the part of the court would arise. We have used the expression "waiver" in its legally accepted sense, namely. ''waiver" is contractual and may constitute a cause of action: it is an agreement to release or not to assert a right". see Dawson's Bank Ltd. v. Nippon Metrkwa Kabushiki Kaisha, 62 Ind App. 100 at P. 108. We have used the expression "waiver" in its legally accepted sense, namely. ''waiver" is contractual and may constitute a cause of action: it is an agreement to release or not to assert a right". see Dawson's Bank Ltd. v. Nippon Metrkwa Kabushiki Kaisha, 62 Ind App. 100 at P. 108. It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff But they must be such that the representation by or the conduct ores eglent of the plaintiff is directly responsible inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief." 50. In (17) Umapati Chondhuri and others v. Subodh Chandra Chondhuri and others (AIR 1953 Calcutta 377) the Division Bench of the Calcutta High Court observed that delay in filing a suit or an application is no reason why the parties should not get a temporary injunction. 51. In (18) Moolchand and others v. Chhoga and others (AIR 1963 Rajasthan 25) it was observed as under : "A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is otherwise made out. Such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done." "A further principle to bear in mind is that where an injury caused to a person or persons would constitute a sort of a perennial trespass-a trespass day in and day out-upon his or their rights, normally a mandatory injunction is the only appropriate remedy." "Again the principle is well settled that a plaintiff is entitled to mandatory injunction where the defendant despite protests from the Plaintiff persists in his unlawfull act and behaves in an unfair and highhanded manner." 52. An regards the consideration of emergence of law and order situation as a result of grant of interim relief, reliance has been placed by Dr. Singhvi on (19) Jiwan Khan and others v. Habib and others (AIR 1933 Lahore 759). An regards the consideration of emergence of law and order situation as a result of grant of interim relief, reliance has been placed by Dr. Singhvi on (19) Jiwan Khan and others v. Habib and others (AIR 1933 Lahore 759). In that case it has been observed:- "If a person has an undoubted legal right to say his prayers in a mosque the Courts cannot refuse to recognise that legal right by refusing a declaration prayed for merely because an anticipated breach of the peace is to be committed by the other side." 53. Mr. Venu Gopal, on the other hand referred to the following observations made in Haji Mohd. Sayeed and others v. Abdul Ghafoor and others (supra) : "It is also beyond doubt that the defendants have been holding congregational prayers according to their form in the said mosque for a long time and granting the prayer to the plaintiffs might be to defeat the efficient and proper holding of prayers by the defendants in their own fashion, a right which they have been exercising for fairly long time, and which, by virtue of its strength and uniform practice has ripened into a local custom. Moreover, in view of the bitter relations that have existed between the sects-for a long time, and which during the last fifty years have led to a crop of civil as well as criminal litigation, the result of the grant of the above relief in the present case would be to create a situation that would be explosive and fraught with danger. It is bound to lead to a position in which a violent clash between the parties might take place any moment with the result that no Section would be able to perform any prayer at all. At any rate the tempestuous mood in which the minds of parties are worked up is certainly not one which will be conducive to the effective peaceful or efficient performance of joint worship by either." 54. At any rate the tempestuous mood in which the minds of parties are worked up is certainly not one which will be conducive to the effective peaceful or efficient performance of joint worship by either." 54. Reference was also made to the Karala case in Kunhi Mohammed Molla and others v. Palayam Mohindeen Palli Paripalana Committee and others (supra), in which in respect of Hazi Mohd.'s case it was stated as under : "The prayer of the plaintiffs in that case for separate congregational worship under independent Imam was tutned down on the additional ground that in view of the bitter relations that had existed between the two sects for a long time, the result of such a relief would be to create a situation that would be explosive and fraught with danger. The court also took note of the circumstance that the defendants had been holding congregational prayers, according to their form in the mosque for a long time, and as such the right which they were exercising by virtue of its strength and uniform practice has ripened into a local custom." 55. Mr. Venue Gopal also referred to the following observations in the case Sarwar Hussain and others v. Additional Civil Judge (J.S.C.S.), Moradabad. and others (supra) : "In a matter like the present where there is considerable heat, tension and possibility of breach of peace the proper cause would be to see that the decree or interim order does not accentuate the problem. Granting of relief of injunction is discretionary. The relief must be granted where it is absolutely necessary. It may be granted where it would help in tyre preservation of peace and public order. Where there is a possibility of breach of peace of public order, the Court ought (to) proceed with caution. In the present case the material on record shows that due. to the intervention of the officials of the district administration a compromise had been arrived at between the members of the two sects, although not between the parties in the suit, it was just and proper that the arrangement formulated and accepted should have been upheld as that would have created an atmosphere of peace and amity." 56. It may be mentioned that in the cases relied upon by Mr. Venu Gopal. It may be mentioned that in the cases relied upon by Mr. Venu Gopal. the observation have been made realising the right of the party, which had been exercising the same for a fairly long time. They were not cases where the parties seeking the relief was the party, whose rights have been infringed or in relation to whom a continuing wrong is being committed. As already stated, to me, it appears that the situation has been brought about by force and the defendants now want to proclaim legitimacy of that situation. A situation, which has been brought about as a result of violence, cannot be countenanced by any entire. The court primarily exists for enforcement of right and not for protection of might. The right can be enforced by the court through the might of the State. Those who defy the commands of the courts, can be dealt with in accordance with law and for the enforcements of right, if need be, police aid can be provided. Thus, on both the grounds, delay or unleashing of violence, discussed above, in my opinion, the plaintiffs cannot be refused the interim relief. 57. Mr. Venu Gopal further contended that Dai is not a party to the suit. He is not enforcing his right of appointment of Pesh Imam and to conduct congregational prayers under his authority. He is not enforcing his right of management and control of the mosques and to regulate the congregational prayers thereat. Even the Pesh Imams in their capacity as such are not parties to the suit. The plaintiffs are delightfully vague in their pleadings as to who were the Pesh Imams, who were appointed by the Dai or his Amil, in which mosque and on what dates and till what date they continued to lead the prayers in their respective mosques. When such is not the frame of the suit, the plaintiffs' suit is not maintainable, as there in no cause of action with regard to right of prayers. The cause of action is only with regard to form of congregational prayers, whether to be led by Pesh Imam appointed by or under the authority of the Dai or by a Pesh Imam selected by the Youth Group. The right sought to be enforced, is thus, not a civil right and as such the suit is not maintainable. Reliance in this connection. The right sought to be enforced, is thus, not a civil right and as such the suit is not maintainable. Reliance in this connection. has been placed on (20) M. Appadorai Ayyangar and others v. P. B. Annangracharlar and others (A.I.R. 1939 Madras 102) and on (21) Sri Sinha Ramanuja Jeer Alias Sri Venamamalal Ramanjua Jeer alias Emberumanar jeer and others (A.I.R. 1961 S. C. 1720). 58. In the above Madras case it has been observed:- "The Civil Courts in British India have no ecclesiastical jurisdiction and they cannot dicide questions of ritual in a temple, excel t in so far as the decision of such questions is a necessary incident to the decision of civil rights. A right to worship in a particular temple is a civil rights and a right to perform a religious office to which obligations and emoluments are attached is also a civil right. Although a Court in adjudicating on a right of worship or a right to religious office may frequently be obliged to decide incidentally questions of ritual, it will not, on a mere pretence that a right to worship has been infringed, arrogate to its. If a jurisdiction, which it does not possess, to prescribe forms of prayer, rights to religious precedence and questions of that nature." 59. In the aforesaid Supreme Court case it has observed as under:- "In view of Section 9, Civil Procedure Code , Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties. But the explanation to the section implies two things. namely, (i) a suit for an office is a suit of a civil nature ; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the raligious rites or ceremonies. It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject-matter of a civil suit. It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject-matter of a civil suit. Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a temple cannot be placed on a higher footing than the religious rites or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies. Prima facie honours such as who is to stand in the ghashti, in what place, who is to get the tulasi, etc, in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office for they are only tokens of welcome of an honoured guest within the precints of a temple. The principles of law deducible from decided cases pertaining to the maintainability of suits in civil Courts in respect of honours in temples may be summarised as follows : (1) A suit for a declaration of religious honours and priviligies simplicter will not he in a civil court. (2) But a suit to establish one's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in a civil court. (3) The essential condition for the existence of an office is that the holder of alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties. (3) The essential condition for the existence of an office is that the holder of alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties. (4) So judged, there cannot be an independent office of theerthakar, for a theerthankar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the arcbaka in a certain order (5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneratiou attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part of its perquisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office- holder or are only shown to him as a mark of respect on the occasion of his visit to the temple." 60. Dr. Singhvi, on the order hand, submitted that the suit is with regard to the right of offering congregational prayers as are held in Dawoodi Bohra community, which have religious sanctity, so the plaintiffs' suit is essentially a suit for enforcement of right of offering congregational prayers and participation in other religious, functions, gatherings and ceremonies to be held by and under the authority of the Dai. Such a right is a civil right and the plaintiffs' suit is maintainable. The manner in which the prayers were being held immediately before the conflicts arose, furnishes a good cause of action to the plaintiffs to maintain the suit as it relates to their civil right. Reliance in this connection is placed on a decision of the Madras High Court in the (22) Gounders of Vilssage represented by Velay dha Goundan and others v. The Udayars of Vilangathur village represented by Ponsuswarni Udayar and others ( (1945) I M. L. J. 300), in which the two groups of villagers undertook to celebrate the festival of the village deity by carrying the idols separately so as to avoid any disturbance by consent statement before a Magistrate. The defendants unlawfully interfered with the plaintiffs' group, while it was performing the festivals. On the question whether the plaintiff- were entitled to a permanent injunction in a civil court restraining the defendants from doing any act by way of interference of their rights, it was held that it is an elementary right of every worshipper of a public temple to have the usual festivals conducted in the usual manner and that the right is a civil right which every worshipper has as an individual and that he would be entitled to protection of the Court in the exercise of his right.61. Reference has also been made to a decision of the Supreme Court in (23) Ugam Singh and another v. Kesrimal and others ( AIR 1971 SC 2540 ). In this case reliance we placed on (24) Nar Hari Sastri v. Shri Badrinath Tempe Committee ( AIR 1952 SC 245 ) and (25) Seth Hukam Chand v. Maharaja Bahadur Singh ( AIR 1933 PC 193 ). In Ugam Singh's case (supra) it was observed as under:- "From the pleading and the controversy between the parties it is clear that the issue is not one which is confined merely to rites/and rituals but one which affects the rights of worship namely whether the Swetambaries by placking Chakshus. Dhawaja-dand and Kalash according to their tenets or by locking the temple could preclude the Digamberies from worshipping in accordance with their tenets. It is admitted that the Digamberiea will not worship the idol which is not 'Nirakar' or which has Chakshus If the Digamberies have a right to worship at the temple the attempt of the Swetambeties to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetemberi idol was to preclude the Digamberis from exercising their right to worship at the temple. These findings clearly establish that the Appellants interfered with the rights of Digamberies to worship with respect to which a civil suit is maintainable under section 9 of the Civil Procedure Code. This position is well established authority was needed we may refer only to two cases. The Privy Council in Sir Seth Hukam Chand v. Maharaj Bahadur Singh, 60 Ind App. This position is well established authority was needed we may refer only to two cases. The Privy Council in Sir Seth Hukam Chand v. Maharaj Bahadur Singh, 60 Ind App. 373 had to deal with the practices observed by Digamberies and Swetambeties on the Parasnath Hill which is considered to be sacred by both the Sects but in respect of which the Digamberies objected to the continuous employment of human brings on the Hill and against building thereon of Dwellings necessarily involving according to their tenets of a sacrilegious pollution and descration of the sacred hill, while the Swetembries had no such belief. Sir John Wallace delivering the opinion of the Board observep:- "These are matters for the Jain themselves and the Civil Court are only concerned with them in so far as they are relevant to questions of civil right such as an alleged interference with the plaintiffs right to worship on the hill, and in that case the issue must be not whether the acts complained of are in accordance with orthodoxy or with previous practice but whether they do in fact interfere with plaintiff's rights or worship." It was held as under : "A right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed ealier disputes which are in respect of 'rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a Section on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the Appellant to the maintainability of suit is not well founded." 62. If the question arising in the present case is examined in the light of the aforesaid case law, it would appear that the plaintiffs' suit is not a suit involving the question of religious rites or rituals. but it is a suit relating to the right of offering congregational prayers and holding of religious functions, ceremonies and gatherings in the mosques by and under the authority of the Dai. but it is a suit relating to the right of offering congregational prayers and holding of religious functions, ceremonies and gatherings in the mosques by and under the authority of the Dai. The questions involved in the suit, are thus, questions related to civil rights and the plaintiffs' suit is therefore, maintainable It may also be mentioned here that the Pesh Imams selected by the defendants and the members of the Youth Group are not the Pesh Imams selected by the congregation as a whole, but only by a faction of the congregation. It is not the defendants' case that the whole congregation was summoned in the mosques for the purpose and the Pesh Imam were selected in such summoned congregation. So the position, which emerges, is that the Youth Group constitutes the dissenter group and this roup selected the Pesh Imam of their choice. The group is nothing but a faction of the congregation. Even under the general Islamic law separate congregation cannot be allowed to be held by the dissenters as his been considered in the cases referred to above.63. Further it has been vehemently submitted that the plaintiffs are/not entitled to any interim relief for that would mean restoration of the status quo which existed prior to 1973. Status quo as on the date of the suit, can only be restored and that status quo cannot be disturbed, which existed on the date of the suit. Mr. Venu Gopal supported this contention by placing reliance on a decision of his Court in Ramchandra Tanwar v. M/s. Ram Rakhmal Amichand and another (AIR 1971 Rajasthan 292). In this case reliance was placed on (26) Nandan Pictures Ltd. v. Art Pictures Ltd. (AIR 1956 Calcutta 428), P. N. Shinghal, J , as he then was, in para 10 observed as under : "As has been stated, the plaintiff filed the application on March 17, 1970, along with the plaint. For the issue of temporary injunction, and in that application it was clearly stated that the two stalls in question were not working and were closed on the date of the suit. In such circumstances when the business of the plaintiff had already been closed on the date of the suit. For the issue of temporary injunction, and in that application it was clearly stated that the two stalls in question were not working and were closed on the date of the suit. In such circumstances when the business of the plaintiff had already been closed on the date of the suit. namely, on March 17, 1970, there could be no question of granting an injunction under Order 39 Rule 1 or 2 C. P C. so as to permit the plaintiff to restart that business, [for, it is well settled that the trial court could do no more than restore the position as it stood on the date of the suit."] (Underline is mine)64. In the Calcutta case relied on in Ramchandra Tanwar's case (supra), Chakravartti, C.J., observed as under:- "I consider it sufficient to point out that it is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of 'ad interim' order pending the decision of the application itself are almost unkown. I do not wish to say, because it is not necessary for the purposes of this case to say so, that in no circumstances will the Court have any jurisdiction to issue an ad interim injunction of a mandatory character pending the disposal of an application for injunction. Injunctions are a from of equitable relief and have to be adjusted in aid of equity and justice to the facts of each particular case. No Court, therefore, ought to lay down absolute propositions when such are not necessary and forge fetters for itself. At the same time, I may point out what the accepted principles have been and what has been, according to the reported cases, the practice of the Courts. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted. The one case in which the mandatory injuuction is issued on an interlocutory application is where, with notice of the institution of the plaintiff's suit and the payer made in it for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claimed his relief. An injunction issues in such a case in order that the defendant cannot take advantage of his own act and defeat the suit by saying that the old cause of action no longer survived and a new cause of action for a new type of suit had arisen. When such is found to be the position, the Court grants a mandatory injection even on an interlocutory application, directing the defendant to undo what he has done with notice of the plaintiff's suit and the claim therein and thereby compels him to restore the position which existed at the date of the suit. As far as I have been able to find even such an order has been made only when the application for an ad interim injunction pending the disposal of the suit is finally disposed of and not during the pendency of the application itself as made in the present case." (Underline is mine)65. Further reliance has been placed on Deva and others v. Godar and others (1978 W. L. N. (UC) 354). Reliance has been placed therein on the observation made in Ramchandra Tarrwar's case (Supra) and Nandan Pictures' case (supra) and it was observed that mandatory injunction can only be granted to restore the position as it existed on the date of the suit and not that which existed before the institution of the suit.66. I have given my serious and anxious consideration to the submissions of Mr Venu Gopal and a thoughtful consideration to the case law relied upon by him. It cannot be said that law propounded in these cases is inflexible, rigid and knows no exception. I have given my serious and anxious consideration to the submissions of Mr Venu Gopal and a thoughtful consideration to the case law relied upon by him. It cannot be said that law propounded in these cases is inflexible, rigid and knows no exception. Chakravartti, C. J. (in Calcutta Case relied on in Ratnehandra Tanwar's case (supra) himself has stated that in an exceptional case in which the rule propounded may not be adhered to and he was also careful in making an observation that he does not wish to say that in no circumstance will the court have any jurisdiction to issue an ad-interim injunction of a mandatory character pending the disposal of an application for an injunction. These observations go to point out that the questions of grant of interim relief in the from of mandatory injunction or preventive injunction depends on the circumstances of each case Take for example in an action for restoration of amenity like water, light or any other amenity discontinued by the landlord, if the tenant moves an application for immediate restoration of amenity. I think it is the bounden duty of the court to restore the discontinued amenity and grant interim relief to the tenant. Suppose in a suit for permanent injunction for demolition of the obstruction placed, whereby the passage is blocked, so as to render the property inaccessible the grant of interim relief by way of demolition of obstruction would be essential. In a situation like this, where two separate owners of the property are living in a big building having two Chowks and access to the property in the inner Chowk is obstructed and there may be no other passage to have access to the property in the inner Chowk, the court cannot refuse to grant interim relief. So may be the cases where obstructions had been placed affecting the right of irrigation, as the standing crop may be destroyed. Thus, it would appear that the matter of grant of interim relief should depend on other nature of the right, the nature of the wrong done the exigencies of the given came requiring the immediate redressal of the grievance made or undoing of the wrong and the rule propounded cannot be made applicable with rigidity. Thus, it would appear that the matter of grant of interim relief should depend on other nature of the right, the nature of the wrong done the exigencies of the given came requiring the immediate redressal of the grievance made or undoing of the wrong and the rule propounded cannot be made applicable with rigidity. Courts primarily exist for imparting justice if a strong prima facie case is made out necessitating grant of interim relief, it should not be refrain from granting the interim relief to the party, if it is legitimately entitled to the same67. So far as the present case is concerned, I have already expressed myself that a very valuable right of the plaintiffs has been infringed on account of continuing wrong of deprivation of the members of the Shabab Group to offer congregational prayers under the leadership of the Pesh Imams appointed by and under the authority of the Dai, the infringement of such a right cannot subsequently be recompensed in any manner. So looking to the nature of the wrong done. I am of the opinion that the plaintiffs are entitled to the grant of interim relief.68. Mr. Venu Gopal further urged that in a matter where on considertion of all questions, judicial discretion has been exercised by the trial court in a particular manner, the same should not be interfered with by the appellate Court. He pointed out that the learned District Judge in view of the existing state of affairs on the date of the suit did not think it proper in his judicial discretion to grant any interim relief. This court should not interfere with the judicial discretion exercised by the court below. In support of his contention reliance was placed by him on a decision of the Karnatak High Court in (27) Smt. Lalithakshi Annadenagrounda v. Sadashivappa Basappa Patil and another (A.l.R. 1984 Karnataka 74). The proposition of law laid down, is as under : "Where in an application by the plaintiff for a temporary injunction against the defendant the trial Court has duly considered all matters and in the proper exercise of its judicial discretion passed an order refusing the application for temporary injunction, the appellate court has no jurisdiction to interfere with the order passed by the trial Court merely on the ground that another view was possible on the point. The first appellate court had no jurisdiction to interfere with the discretionary order passed by the trial Court, simply because, it was reasonably possible to take another view on the facts of the case. The first appellate Court has substituted its own discretion substituting the judicial discretion exercised by the trial Court. It would not do so. It had to stay its hands and confirm the order passed by the trial court in the circumstances." 69. I am unable to accept the above submission of Shri Venu Gopal. I have already considered that the learned District Judge recorded a contradictory hiding on the question of prima facie case. He virtually recorded the findings on all the three essential requirements for the grant of interim relief in favour of the plaintiffs, but still refused to grant any interim relief considering the state of affairs, as they existed on the date of the suit. On that question. I have already expressed my opinion above when the matter has not been examined in its correct prospective, the exercise of judicial discretion in that situation is vitiated and it cannot be said that the judicial discretion has been properly exercised. The rule propounded. as quoted above, is undisputable, but that rule, in my opinion, has no application to the facts of the present case.70. No other point has been pressed before me.71. In the light of what I have considered and discussed above, I find the present case to be a fit case for the grant of interim relief prayed for in respect of the four mosques. However a suggestion was made by Dr. Singhvi that the plaintiffs may be granted interim relief in respect of Moiyatpura Masjad, which is said to be a bigger mosque under the present situation. I think the suggestion appears to be reasonable, just and proper. Although the plaintiffs are entitled to the grant of interim relief in respect of all the mosques, still considering the bitter relations between the parties and the state of affairs going on for the last eleven years, it would be just and proper to make workable interim arrangement in the form of grant of interim relief in respect of the Moiyatpura mosque.72. Accordingly, the appeal is partly allowed and the application of the plaintiffs for the grant of temporary injunction is allowed in part in the manner that the defendants in their personal and in their representative capacity and their servants and agents are restrained from preventing the plaintiffs and the members of the Shabab Group from entering the Moiyatpura Masjid for offering or participating in the Imamat/Jamaat Namaaz led by the Pesh Imam appointed or nominated by and under the authority of the Dai-ul-Mutlaq for attending or participating in any Vaiz. Majlis or other religious functions, gatherings or ceremonies held with the permission or under the authority or under the auspicies of the Dai-ul-Mutlaq. They are further restrained from interfering or disturbing the Imamat, Jamaat Namaaz conducted in the said Masjid as stated above or from disturbing or interfering with Vaiz, Majlis or any other religious ceremonies functions or gatherings held or conducted with the authority or permission or under the auspicies of the Dai-ul-Mutlaq. The defendants by themselves and by their servants and agents or any person claiming under or through them or the members of the Bohra Youth Association or the so-called Dawoodi Bohra Jamaat are restrained from holding their separate Imamat/Jamaat Namaaz or from holding Vaiz, Majlis and any other religious functions, ceremonies or gatherings in the Moiyatpura Masjid. 73. The costs of this appeal shall be easy.74. Before parting with the order, I would like to impress upon the trial court that whatever views, opinions and findings have been recorded herein above, would not in any way be considered binding on the trial court, while deciding the suit on merits. The opinions, which have been expressed herein above are opinions, while considering the application for the grant of temporary injunction.75. Further, it would be in the interest of the parties that a direction may be given to the trial court for expediting the trial and disposal of the suit. Mr. Venu Gopal has assured that the defendants will not seek adjournments and will help the court in the disposal of the suit within six months. Accordingly, the trial court is directed to dispose of the suit within a period of six months as far as possible.76. The record of the case be sent immediately. *******