K.A. Abdul Gafoor, J. 1. The plaintiffs who lost the suit concurrently before the Courts below are the appellants. The suit is of representative character. The dispute raised in the suit is as to whether religious discourse called 'Khutuba' in a mosque in connection with the Juma prayer on Friday can also be in verancular along with its essential ingredients in Arabic. In other words, whether the gathering can be addressed in local language during the course of the 'Khutuba' itself. There was a contention that this was not a matter for resolution by Civil Courts and therefore, the suit was not maintainable. The trial Court accepted that contention and held that such a dispute cannot be said to be "one which the Court is entitled to decide". As there was dispute on the issue among the members of the congregation, the Assistant Collector had initiated proceedings. M.C. 21/67, and had issued Ext. A 1 order that A party therein shall not interfere with the performance of 'Khutuba' in Malayalam in the mosque namely Karakunnu Jumaath-Mosque. Therefore, that order was challenged in the suit. Consequently injunction was also prayed for to restrain conduct of 'Khutuba' in Malayalam. On these issues the trial Court found that the plaintiffs were not entitled to get such reliefs and that translation of the text of khutuba is not against the principles of ismallc tenets followed by Shafii school of Muslims. The plaintiffs took the matter in appeal. The finding regarding the maintainability of the suit was reversed and the lower appellate Court found the suit as framed maintainable. But, on the merit of the issue, after examining the evidence given by the religious pandit examined on behalf of the plaintiffs as P.W. 3 and also other documentary and oral evidence on record, the lower appellate Court found that "plaintiffs have not established a practice of using Arabic Language alone in the performance of khutuba" and the findings on that aspect rendered by the trial Court were affirmed. Having this lost the suit concurrently before the Courts below, the plaintiffs are challenging that concurrent decree in this second appeal mainly raising a substantial question of law, "Whether the lower appellate Court is correct in holding that the khutuba or even a part of it could be rendered in Malayalam and such rendering in Malayalam is not liable to be restrained?"
All the other questions of law including whether khutuba being rendered from 'Meembara' (pulpit) is not purely a prayer are the questions centered around the aforesaid substantial questions of law.
2. The respondents have contended, as a preliminary objection, that the suit itself is not maintainable as these religious matters do not create any enforcible right to anyone and, therefore, cannot be adjudicated as a dispute of civil nature. So, the suit itself was not maintainable. In the light of the decision of the Supreme Court in Most. Rev. P. M. A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, this being a matter affecting the right to worship will certainly affect the civil rights of the parties and is therefore, a dispute of civil nature. The right to worship according to one's belief is a right available to any individual and, therefore, if the manner in which such right is exercised is interfered with by any other person or group, necessarily, it will give rise to a dispute of civil nature which can be adjudicated by a Civil Court by entertaining a suit. As held by the Supreme Court in the aforesaid case.
"The expression 'civil nature used in Section 9 of the Civil Procedure Code is wider than even civil proceedings and extends to such religious matters which have civil consequence."
It was further held by the Supreme Court that.
The Civil Courts have jurisdiction to entertain the suits for violation of fundamental rights under Articles 25 and 26 of the Constitution of India."
The freedom guaranteed in Article 26 to practise religion is exercised primarily with religious worship, ritual and observation and religious practices are as much a part of religion as religious faith or doctrine. Therefore, the finding of the lower appellate Court that the suit as framed was maintainable cannot be said to be incorrect. That finding is upheld and the preliminary objection raised by the respondents/defendants is overruled.
3. That the Muslims within the local limits of "Karakunnujuma-ath mosque" follow Shafi'i Madhab' is not disputed. Thus, both the plaintiffs and defendants are Sunni Muslims following 'Shafl'I Madhab.'
4. Juma prayer is on every Friday. In connection with Juma prayer there is 'khutuba' which is followed by worship (namas) consisting of two standings ('rak-at'). The literal meaning of khutuba is speech. There will be an assemblage for juma prayer and the Imam will be delivering the speech to such assemblage. The Imam will be standing on a pulpit (Mimbra) while delivering khutuba. Though in literal sense 'khutuba' means speech, being a speech in connection with religious affair, it should conform to certain essential standards. Khutuba is conducted in two segments. In other words, there are two parts to it. In between them, the Imam will sit on the pulpit (Mimbra). The Khutuba is conducted not only in juma prayer, but in connection with Eid prayers and even on the occasion of marriage, which is not considered to be a prayer. Khutuba is also performed at the meet of 'Arafa' during Haj time. The famous speech delivered by the prophet known to be his last public speech was that delivered in a meet at 'Arafa' in connection with Haj pilgrimage. These speeches are intended to apprise the assemblage of the good morals and to advise them. Being a religious speech, necessarily, khutuba in connection with Juma prayer shall have certain essential ingredients. It shall commence with praise of God (Hamd). There shall be certain special words of prayers for the prophet (Salat). There shall also be exhortation to virtue (Vasiat). Recitation from Quran (Ayat) is another ingredient. Finally, it shall consist of an invocation (Dua) for the good of the society. These five essential ingredients of khutuba shall have certain set words. The Ayat shall be any sentence from Holy Quran. But, after the exhortation, the Imam can use his own words, intended as advice to the assemblage. Out of these five essentials (Arkan) of the khutuba in connection with the Friday prayer, the first three shall be in both the segments. The recitation from Quran shall be in one of the two segments. But some say that it shall be in both as well. Invocation is supposed to be a part of the second segment. Certain authors do not consider it as obligatory even. The aforesaid are the five essentials of the khutuba. This is the form of khutuba in connection with the Juma prayer. Exhortation is meant as advice to the assemblage, is not disputed by anyone. Such exhortation shall always be meant for the assemblage and the community in general. To perform these five essentials alone, it will take only five minutes. The plaintiffs also do not have a case that the khutuba in connection with Juma prayer shall consist of only performance of these five ingredients alone. There shall also advice to the assemblage on the religious matters if necessary with particular emphasis to contemporary affairs. Instances of the prophet talking on drought and famine and on observance of religious mandates on entering the mosque, in answers to the querries made by the members of the congregation, during khutuba in connection with Juma prayer, are widely quoted and accepted without exception,
5. That is why the plaintiffs are not totally opposed to Malayalam speech. They contend that the Malayalam speech can be performed either before the commencement of khutuba in Arabic or after the Namaz but not while on the pulpit. In other words, it shall not be performed along with the khutuba speech in Arabic mounting on the pulpit. They contend that khutuba is an integral part of the worship and, therefore, can only be in Arabic. While Imam is on the pulpit no word other than in Arabic can be uttered from there and it will invalidate the entire prayer. Normally noon Namaz of Muslims consists of four standings where as juma namaz consists of only two standings preceded by khutuba. So, the khutuba is in place of two standings of the normal noon namaz of every day. Thus, it is a part of the worship and, therefore, no words other than in Arabic can be uttered during the khutuba. In contra-distlnction to these contentions, it is contended by the respondents that khutuba is a speech to the assemblage leading them to a right path. In does not form part of the worship. The Namaz or worshipping the God is a sacred part and that is rendered while the Imam as well as the assemblage facing towards 'kaeba' in the west and nobody is allowed to talk each other. But during khutuba, Imam will be standing facing east. Imam can even talk to the congregation, other than as part of the khutuba. Even if the members of the congregation talk each other, though not advisable, the prayer will not become invalid. If one is a late comer during the actual standing worship he shall follow the Imam and continue the prayer until its total standings as far as he is concerned, even if the Imam and other members of the congregation had completed their worship. But this insistence is not there in khutuba. Even if one attends the khutuba late and only in part, his worship is not invalidated. Even if one comes to the mosque and joins Juma prayer during the second standing of the worship, which is the last stage, even according to Shafi'i Pandits, he is considered to have been present at the whole of the ceremony, provided he completes the Namaz part as mentioned above. Therefore, khutuba is not a part of the worship, the defendants contend.
6. The Court below has found, after appreciating the evidence on record including certain books referred to, that "it cannot be said that two khutubas take the place of two rekayats (standings) and as such khutuba is to be considered as prayer."
7. The prayers in the Muslim community shall be in the form performed by the prophet. The prophet used to deliver khutuba in connection with juma prayer. The same form and standard are followed by Muslims all over the world. The Namaz part of the prayer is the real worship of God and that shall be in the same form of standing, benting, prostrating, sitting etc. chanting certain prescribed words and chapters from Holy Quran. The khutuba conducted by the prophet was in Arabic, as it was the language known to and understood by the assemblage before him. In other words, khutuba performed by the prophet was in the language known to his fellowmen and it was intended to advise them to lead a rightous life. Imam Shafi'i, the founder of Shafi school, in his famous work 'Al Umm' had dealt with the performance of khutuba. It is often quoted from the chapter "Kalamul Imami Fil Khutubatt" (on speech of Imam) as follows :
"Vala baesa an yatha kallama rrajulu fie khutubathil jumuati vakulli khutubathin fiema ya-eniehl vaya-eni gairahu bi kalami nnasi vala uhibbu an yathakallama fiema laya-eniehi vala ya-eni nnasa vala bima yaqbahu minal kalaml vakullu ma ajazthu lahu an yathakallama bihl av karihthuhu fala yufsidu khutubthahu vala salathahu."
(1:201 'Al Utnm,1 Darul Maerifa, Baeirut, Lebanon) Approximate translation is as follows :
(There is no prohibition in the speaker talking in the language spoken to by the people on useful subjects to himself or others, during jumua khutuba as well as in other khutuba, I do not like irrelevant and indecent talk. But khutuba or Namaz will not be vitiated even if an impermissible thing is spoken during khutuba).
Necessarily, when the path set by the prophet is followed, the khutuba in connection with the juma prayer shall always be in the language known to and understood generally by the assemblage. This is fortified by the opinion of Imam Shafii, the founder of the Shafi'i Madhab himself, as quoted above.
8. Thus, even if the contention of the plaintiffs that khutuba is a part of the prayer is accepted, even then, it will not lead to a conclusion that there cannot be any other words in khutuba than in Arabic for the purpose of advising and guiding the assemblage. As already mentioned above the path set by the prophet has to be followed by the Muslims all over, including in the matter of khutuba. The prophet had addressed the assemblage in Friday prayers, in khutuba. He had used the language as generally known to the assemblage before him to advice them to lead a rightous life. Thus, the language used by the prophet was the language as generally known to and understood by the assemblage. The khutuba was meant as message to the assemblage. Therefore, when the path shown by the prophet is followed, necessarily, even if the khutuba is considered to be a part of the prayer adopting the path followed by the prophet, it shall be in order to advise and guide the assemblage, in the language known to and understood by them. The language known to the Muslims within the limits of the mosque concerned is nothing other than Malayalam. That is an admitted fact. Therefore, even if the khutuba is considered to be a part of the prayer, as contended by the plaintiffs, it will not lead to a conclusion that no Malayalam can be used in khutuba, as in the case of namaz.
9. The lower appellate Court, after examining the evidence on record including that given by P.W. 3, a religious pandit examined on behalf of the plaintiffs, found that, "he has admitted that there is no prohibition of using Malayalam language at least for the anubandhams (appendix)," i.e. speech in between the essential ingredients. The lower Court also noted that.
"P.W. 3 has also not only admitted, but relying on the authority of the book says that the definition of khutuba only means a collection of words or sentences which as a hamd and solath in the initial part and the Vasiat and dua at the final part. He has also admitted that apart from the insistence that these essential parts should be included, there is no other rules governing the matter. In page 24 of the deposition of P.W. 3, he has stated that if the essential parts of the definition are satisfied, addition of extra words will not make it anything other than khutuba."
The lower appellate Court also noticed that, "P.W. 3 has stated that a khutuba may be followed or may not be invalid even if the anubandham in a language other than Arabic. He also has admitted that khutuba which includes the 5 essential ingredients and also speech in Malayalam would be valid khtuba after which Juma namaskaram can be performed."
Thus, the evidence on record was that, apart from five essential ingredients the remaining part shall be in vernacular. It may be sufficient to perform the five essentials alone. But at the same time it is necessary, when the entire Muslim folk is expected to be present for the juma prayer, they shall be addressed about certain virtues to be followed in life with reference to the contemporary topics. That is what is performed after the Vasiat part of the khutuba. In such circumstances, Imam cannot be expected to demount the pulpit after three ingredients and then deliver a Malayalam speech, standing on the floor and again to mount on the pulpit to perform the last two ingredients. That is not expected at all.
10. It was also found by the lower appellate Court referring to Ext. B45 produced by the defendants that "Malayalam language was freely used in Khutubas from very early times." The lower appellate Court also noted that, "..... .P.W. 1 who is the 3rd plaintiff himself has admitted that an organisation of Muslim Pandits 'Kerala Jumayathul Ulama' had passed a resolution even in 1936 calling upon all mosques to use Malayalam language in khutubas."
D.Ws. 2 and 5 were the Imams in the plaint schedule mosques during the period from 1936 to 1959. P.W. 1 himself had staled as noted by the lower appellate Court, that "they were highly respected by the congregation, when they were officiating as kathibs (Imams)." D.Ws. 2 and 5 had deposed that during their periods of office Malayalam language also was used for khutuba. The plaintiffs, through P.W. 4, attempted to attribute that these two witnesses had an axe to grind against the plaintiffs, since they had been sent out of the mosque by the present plaintiffs. The lower appellate Court noticed that "simply because this aspect alone, the entire evidence of them cannot be discarded" and also because there are minor discrepancies brought out in their evidence. Admittedly by P.W. 1 himself they were highly respected by the congregation. In such circumstances, merely because of the alleged pending out, they cannot be expected to speak incorrect things especially in respect of religious matters. The lower appellate Court had found no reason to disbelieve these two respected witnesses. Added to this was the evidence given by D.W. 3. an elderly karanavan; D.Ws. 6 and 9 members of the congregation, D.W. 8, Principal of an Arabic college to show that the practice followed in the mosque concerned throughout was performing a part of the khutuba in Malayalam. D.W. 7 who had been the Imam during 1967 and deposed that Malayalam language was used by him. Thus, the evidence on record substantiates that the practice followed in the mosque was also to the effect that Malayalam language was used in khutuba. In such circumstances, it cannot be said that the Assistant Collector had gone wrong in issuing Ext. Al order.
11. Much reliance was placed on a sentence in a book captioned 'Minhaj' by Imam Navavi, a celebrated author onMohammedan Law followed by Shafi'i school of Sunni Muslims. The sentence in Arabic is as follows :
"Vayustharthu (is stipulated) kaunuha (it) arablyyathan (to be in Arabic)",
-meaning thereby "it. is stipulated to be in Arabic.
It is contended that the word "it" indicates khuluba, by the appellants/plaintiffs. On the other hand, it is contended by the respondents that it means the essential ingredients (Arkan) of khutuba. If the former meaning is ascribed, it may appear that Imam Navavi Insisted that khutuba shall be in Arabic alone. On the other hand, if the latter meaning is ascribed, what Imam Navavi insisted only was that the five essential ingredients alone shall be in Arabic. In his prefatory note to the English translation of the 'Mlnhaj Et Talibin' Mr. E. C. Howard, a former District Judge of Singapore has stated that.
"It is not always possible to decide a question by reference to 'Minhaj' alone and in such a case Mohammadan Jurist -- alim fakih mufti or kadi, as it may be has recourse principally to the Tohfa' and the 'Nihaya,' which Dr. Th Juynboll is his Handbuch des islamischen Gesetzes, 1910, calls the two standard works in the whole modern Fikh literature of the school of Shafi'i."
Mr. Howard has translated 'Minhaj Et Tallbin' not from the original work in Arabic, but from a French Edition by C.W.C. Van Den -- Berg. Mr. Howard has thus made it clear quoting Dr. Juynboll, that Tohfa' and 'Nihaya,' the two standard works on Shafi religious literature, shall be referred to, to decide a question and Minhaj alone shall not be depended on in Tohfa' the first among the said two standard works, it had been pointed out that purpose of khutuba is to advise the people on principal subjects on the religious matters and that it was compulsory to repeat it in such khutuba in juma prayers. Being advice, it shall necessarily be in the local language known generally to the members of the congregation. In 'Nihaya,' the other of the two authorities on Shafi'i religious literature, it is made clear that the stipulation that 'it' shall be in Arabic was confined only to the essential ingredients of khutuba alone. Some position is explained in 'Jamal' another authority on religious matters of Shafi school. Above all is the opinion of Imam Shafii, the founder of the 'Shafii Madhab' himself, in his famous work "Al Umm," as extracted earlier, that there is no prohibition in the Imam talking in the language known to the people in Jumua Khuthuba and other Khutubas, on a subject useful to himself and others. When Imam Shafii said so, no other opinion can prevail over it, regarding observance of Juma khutuba by those following 'Shafii Madhab.'
12. As already mentioned above, that khutuba is meant to advise the assemblage in juma prayer, is not disputed by either side in such circumstance, it shall be in a .anguage known to the assemblage. As already mentioned above, it is the mandate for the Muslims that they shall follow the path set by the prophet, wherever Holy Quran is silent. Holy Quran does not speak about shutuba. The prophet had performed shutuba in Arabic and not in any other anguage, because that was the language mown to and understood by the assemblage before him. Therefore, the path set by him is to address the khutuba in the language known to and understood by the assem-alage. When such path set by the prophet is followed, necessarily, taking into account the purpose behind khutuba, the advice part shall always be in the language known to the assemblage, wherever it is performed. When it is performed in the plaint schedule mosque, where admittedly the language generally known to the Muslim public is only Malayalam, the khutuba shall be performed, observing the essentials in Arabic, in Malayalam in the advice part.
13. Thus, the evidence on record with regard to the performance of khutuba as well as to the practice followed in the plaint schedule mosque and also the authorities reveal that the case put up by the plaintiffs do not have any basis. The concurrent findings of the Court below cannot therefore be interfered with.
14. As already mentioned above, in his famous last speech, prophet had given a message to the community and he appealed to the assemblage that "those present here shall carry his message to those who are not." That appeal makes it clear that the prophet had performed the speech in the language known to and understood by the assemblage so that they could understand the message to be carried on to others. The prophet had meant the khutuba as message to the people. A message will be fruitful only when it is in the language known to the persons who attend to the message.
15. In his commentaries on 'Surah' "Al Jumu ah" of Holy Quran in the famous work "Meaning of the Holy Quran" of Abdulla Yusuf Alt (new revised edition by Amana Corporation Brentwood, Mary Land, USA), it Is pointed out as follows :
"Friday, is primarily the Day of Assembly the weekly meeting of the congregation, when we show our unity by sharing in common public worship preceded by 'khutubah' in which Imam (or leader) reviews the week's spiritual life of the community and offers advice and exhortation on holy living."
Such review, advice and exhortation shall, certainly be in the language spoken to by the members of the congregation, to serve the purpose.
16. These also Indicate that, taking into account the purpose of khutuba, it shall be in the langauge known to the people of the locality concerned.
17. Thus, going by the evidence on record, both documentary as well as oral, and also the purpose behind khutuba and even going by the words of Imam Shafii, the founder of the 'Shafi'i Madhab,'in 'Al Umm.' as quoted earlier, the juma khutuba, except the essential ingredients, shall be rendered in Malayalam in the plaint schedule mosque and there is no reason to restrain such performance of khutuba in Malayalam. The substantial question of law raised in the appeal, therefore, has to be answered against the appellants/plaintiffs, confirming the concurrent decree appealed against and dismissing the appeal, in the circumstances, with no order as to costs.