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2018 DIGILAW 1174 (GAU)

Jamatullah Ali v. Abdul Jabbar

2018-08-08

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mrs. R. Choudhury, learned counsel appearing for the appellant as well as Mr. D. Das, learned senior counsel assisted by Mr. A. N. Ahmed and Mr. S. Khaund, learned counsel appearing for the respondents. 2. This appeal under Order XLIII Rule 1 (r) CPC is directed against the order dated 20.07.2018 passed by the learned District Judge, Kamrup, Amingaon in Misc. (J) Case No. 12/2018 in T.S. No. 1/2014 (earlier numbered as T.S. 04/2011), by which ad-interim injunction was granted in favour of the respondents by restraining the proforma respondents No. 5 and 6 from publishing updated voters' list prepared on the basis of scheme of the decree dated 27.06.1924 passed in Title Suit No. 3/1919 and further restraining them from holding any election of the Managing Committee of Hajo Powa Macca Dargah shrine during the pendency of the suit or until further orders. 3. The main grievance raised by the respondents in the application for injunction was that in the impugned judgment dated 22.07.1921 passed by the then Court of the Judge, Assam Valley District in Suit No. 3/1919 amongst others, conditions imposed were:- 1. There shall be a committee of management consisting of not less than 9 (nine) members. 2. All such persons shall be pious mussalmans of good character. 3. At least three of them shall be representatives of the Fakir families who have traditional duties to perform in connection with the shrine. Other conditions being not relevant are not extracted herein. However, while the successor in office had drawn the decree, the above mentioned conditions were modified to the following effect:- (a) A Moulvi and three pious Mohammedans to be selected by the District Judge in consultation with leading Mohammedans of the District. (b) Three members to be elected by the adult male Mohammedans of the Fakirtola of Hajo. 4. Therefore, by obtaining leave, the respondents had filed Misc.(J) Case No. 123/2011 seeking amendment and modification of the scheme of management so that the same may be drawn in consonance with the judgment passed in the suit. Thereafter, the respondents had filed an application under Order XXXIX Rule 1 and 2, read with Section 151 CPC praying for grant of ad-interim injunction as indicated hereinbefore. 5. Thereafter, the respondents had filed an application under Order XXXIX Rule 1 and 2, read with Section 151 CPC praying for grant of ad-interim injunction as indicated hereinbefore. 5. The notice of the said application was served on the petitioner and the proforma respondents and they had appeared through a learned counsel who had withdrawn from the proceedings after having sent notices to all concerned. The learned trial Court, upon hearing the learned counsel for the respondents and on perusal of the written objection arrived at a finding that the opposite parties in the said application had admitted by the affidavit in evidence of DW-3 that the judgment dated 22.07.1921 passed in Title Suit No. 3/1919 should be followed and there was a necessity of amendment of the scheme of management. That as per statement made in paragraph 4 of the objection, the proforma respondents No. 5 and 6 had no dispute regarding the rights and duties of the Fakir families. Therefore, having found the three golden principles of injunction were operating in favour of the respondents, the learned trial Court was pleased to grant ad-interim injunction restraining the proforma respondents No. 5 and 6 from publishing updated voters' list prepared on the basis of scheme of the decree dated 27.06.1924 passed in Suit No. 3/1919 and further holding that any allegations of Managing Committee of Hajo Powa Macca Dargah Sharif was restrained during the pendency of the suit and or until further orders. 6. This Court has heard at length the rival submissions made by the learnd senior counsel for both sides who have referred to the various documents as well as the judgment and decree passed in Suit No. 3/1919. The basic contention of the learned senior counsel appearing for the appellant is that after every five year term, the elections are being continuously held for managing the affairs of the Hajo Powa Macca Dargah Sharif and therefore, the ad-interim injunction would cause irreparable harm to the institution and its activities. The basic contention of the learned senior counsel appearing for the appellant is that after every five year term, the elections are being continuously held for managing the affairs of the Hajo Powa Macca Dargah Sharif and therefore, the ad-interim injunction would cause irreparable harm to the institution and its activities. Per contra, the basic contention of the learned senior counsel appearing for the respondents is that the rights of the Fakir families as ordered by the judgment dated 22.07.1921, passed in Suit No. 3/1919 cannot be allowed to be diluted merely because of incorrect decree was drawn up and therefore, for the very purpose for correct the decree, the respondents had approached the learned trial Court and a suit, being T.S. 1/2014 was instituted and the same is presently fixed on 20.09.2018 for the evidence of the defendant's side. 7. Having considered the arguments advanced by the learned senior counsel for both sides, this Court is of the considered view that in the connected suit, the respondents are agitating to preserve the rights of the Fakir families from whom three of the representatives are to be elected and who have traditional duties to perform in connection with the shrine. It appears from Annexure 9 of the memo appeal, being order dated 27.05.2013 passed by the learned District and Sessions Judge, Kamrup, Guwahati that there are 12 elected members in the Management Committee and in addition, four persons are nominated members of the Management Committee. Out of the said list, it prima-facie appears that the parties at serial No. 2 and 3 are the members belonging to the Fakir families. As per judgment passed in Suit No. 3/1919, it is provided that three of such representatives would be from Fakir families. Therefore, as per the list prepared vide order dated 27.05.2013, the member at Serial No. appears to be reserved for the third representative from the Fakir family. 8. Therefore, according to the opinion of this Court, in the light of the rights reserved for Fakir families is protected by inclusion in list as three members of the Managing Committee, there would be no impediment in carrying out the elections of the nine other members of the Managing Committee. As three members are reserved for the Fakir family, it is provided that for the time being, Saifur Rahman, Rajimuddin Ahmed and Jamatullah Khan (serial Nos. As three members are reserved for the Fakir family, it is provided that for the time being, Saifur Rahman, Rajimuddin Ahmed and Jamatullah Khan (serial Nos. 2, 3 and 4 of the aforesaid list dated 27.05.2013) shall continue to be the members of the new committee to be formed after the elections are held, as such, there would be no elections for the said three members of the Managing Committee for the time being. The said post reserved for the Fakir families as per the judgment in Suit No. 3/1919 shall not be filled up in the ensuing elections. 9. With the aforesaid rider, this Court is inclined to modify the impugned order dated 20.07.2018 passed by the learned District Judge, Kamrup, Amingaon in Misc.(J) Case No. 12/2018 in Title Suit No. 1/2014 and it is provided that as follows:- 1. The elections would be held subject to the rider as indicated hereinbefore i.e. there would be no elections for three posts reserved for the Fakir families as per the judgment in Suit No. 3/1919 and out of the said three posts, Saifur Rahman, Rajimuddin Ahmed and Jamatullah Khan shall continue to be members of the new committee as representatives from the Fakir families. 2. The elections in respect of other elected 9 (nine) posts is permitted to be held as per the revised electoral rolls. 3. That in so far as the representatives of the Fakir families are concerned, it would be open to the respondents to furnish a list of the representatives/members of the Fakir families to the delegatee of the learned District and Sessions Judge, Kamrup (Metropolitan), Guwahati, i.e. Circle Officer, Hajo Revenue Circle. 4. The elections to the three posts of the representatives of the Fakir families would be subject to the outcome of the decision in the suit i.e. Title Suit No. 1/2014. 10. It is made clear that the observations made herein is only for the purpose of this order and the observations made herein shall not be construed to be a finding of fact and it shall not influence the learned trial Court while deciding the Title Suit No. 1/2014 on merit. 11. 10. It is made clear that the observations made herein is only for the purpose of this order and the observations made herein shall not be construed to be a finding of fact and it shall not influence the learned trial Court while deciding the Title Suit No. 1/2014 on merit. 11. As it is seen that the suit pertains to the year 2011, the learned District Judge, Kamrup, Amingaon is requested to take the suit as a old pending suit and the same may be decided as expeditiously as possible by giving precedence to the disposal of the suit at the earliest. 12. In view of the nature of the order passed, as no relief has been claimed in respect of proforma respondents No. 5 and 6, issuance of notice on them is exempted and the appeal stands partly allowed on terms as indicated above. 13. The parties are left to bear their own cost.