JUDGMENT Sabhajeet Yadav, J.
1. By this petition, the petitioners have challenged the judgment and order dated 8.9.2003 passed by Addl. District Judge, Agra (Annexure-5 of the writ petition) in Civil Revision No. 145 of 2002, Bapu Lal Mansukh Lal Thakkar and Ors. v. Vinod Kumar Singh and Ors., arise out of order dated 9.8.2002 (Annexure-4 of the writ petition) passed by Civil Judge (Jr. Div.), Agra in Original Suit No. 993 of 1999, Vinod Kumar Singh v. Bapu Lal Mansukh Lal Thakkar and Ors. on an application moved by petitioner under Section 9 read with Order 7 Rule 11 C.P.C..
2. The relevant facts having material bearing with the question in controversy involved in the case in brief are that the petitioners are followers of Radha Soami faith and are the members of Central Administrative Council, an unregistered body Constituted by the last Sant Sat Gum of Radha Soami faith "Huzur Babuji Maharaj" for managing and administering the Satsang properties created out of "Bhents' made to Guru during the period when the Sant Sat Guru was bodily present in this world and also administer the same in his absence during the period of interregnum i.e. departure of present Sant Sat Guru from this world and the emergence of subsequent Sant Sat Guru. The said unregistered body is not an elected body and any vacancy caused therein is filled up by nomination by the remaining members. No follower of the faith has any right to interfere in the functioning of said body nor the said body is accountable to any follower except to the Sant Sat Guru of the time being. No follower has any civil right of whatever nature against the said body i.e. Central Administrative Council or any of its members or office bearers. At present there is a period of interregnum as after the departure of last Sant Sat Guru 'Huzur Babuji Maharaj' no subsequent Guru has manifested as yet.
3. The respondent no. 3 instituted a Suit No. 993 of 1999, Sri-Vinod Kumar Singh v. Bapu Lal Mansukh Lal Thakkar and Ors. wherein all the petitioners and protbrma respondents were made party as defendants in the suit in the Court of Civil Judge (Jr. Div.), Agra seeking a decree of permanent prohibitory injunction against the defendants. The case set up by the plaintiff/respondent No. 3 in the plaint of aforesaid suit was that the plaintiff was a follower of last Sant Sat Guru 'Huzur Babuji Maharaj of Radhasoami faith and was tiling the suit at his inner inspiration and bliss of his 'Guru' for the benefit of followers of Bapuji Maharaj of Radha Soami faith and for true salvation of 'Jivas' who have joined Radha Soami faith for the very same purpose; that Prasad, Bhog, Charnamrit, Garlanding of photo of Sant Sat Guru and his Tilak may be distributed to the Satsangis only after its Sanctitication by touch of the alive Guru. None can offer Dhopwatti or Agarwatti or Prasad, Bhog, Garland on his photo during the absence of Guru, which is considered as Idol worship and against the teaching of Radha Soami faith. According to plaint's case the defendants were violating the constitution and bye-laws of Central Administrative Committee by offering Bhog, Prasad. Garlanding, Agarwatti, Dhopwatti, Jhar phanoos etc. against the teachings and tenets of the faith. The plaintiff requested the defendants and other followers not to oiler Bhog, Prasad, Dhoopwatti and Agarwatti. Garlanding on photos etc but they did not stop, hence the suit. A copy of plaint of suit in question is filed as Annexure-l of the writ petition.
4. Alter service of summons the petitioners have riled application under Order VII Rule 11 read with section 9 C.P.C. with a prayer 10 reject the plaint as the suit related to purely religious rites and ceremonies and did not relate to any civil right of the plaintiff and was thus not maintainable under Section 9 C.P.C.. A copy of the aiuresaid application is on record as Annexure-2 of the writ petition. The plaintiff filed his reply against the aforesaid application clearly stating therein that his suit related to immutable fundamental principles of Radha Soami Faith, which were being infringed by the defendants. A true copy of the reply filed by plaintiff-respondent no. 3 is on record as Annexure-3 of the writ petition. Although it was pleaded in the plaint and also in reply made to application of petitioners by plaintiif-respondent No. 3 that Central Administrative Committee has a written constitution and bye-laws, which were being violated by defendants and other followers but neither any such provision of said constitution nor any bye-laws were specified by plaintiif which may have been violated by the act of offering Bhog. Prasad, Dhoopwatti, Agarwatti, Garlanding of photo for decoration by Jhar-phunoos, nor it was pleaded that the provisions of said constitution of Central Administrative Committee or any of its bye-laws created any civil right in favour of plaintiff, which he intendment to enforce.
5. The trial court by its impugned judgment and order dated 9.8.2002 rejected the application filed by petitioners purporting to be under Section 9 read with Order VII Rule 11 C.P.C. holding that suit was not barred by Section 9 and was maintainable. The trial court opined that plaintiffs case was that there were certain principles of Radha Soami Faith, which were to be followed by the followers. The faith has certain rules and bye-laws the observance of which is compulsory, which were being violated by the defendants. Hence to prevent the breach of those rules and bye-laws the suit was maintainable though it may involve the question of religious rites and rituals. The court simply swayed by the use of words Constitution and Bye-laws and did not care even to peruse the said Constitution and Bye-laws which in fact were never produced before the court by plaintiff nor sufficiently pleaded with even minimum required details.
6. Feeling aggrieved against the aforesaid judgment and order passed by learned trial court petitioners have preferred Civil Revision No. 145 of 2002 before the District Judge, Agra, which was ultimately finally heard by the Addl. District Judge, Agra and decided by him vide impugned judgment and order dated 8.9.2003 whereby the revision filed by the petitioners has been dismissed and judgment and order of learned trial court has been upheld hence this writ petition.
7. On behalf of respondent No. 3 a detail counter affidavit has been filed whereby the allegations made in the writ petition have been refuted with further submission that the plaint has already disclosed sufficient cause of action constituting a suit of civil nature to be cognizable by the civil court and the application under Order VII Rule 11 was not maintainable in given facts and circumstances of the case. Besides this, the petitioners have also not filed written statement in the suit in question rather they have filed aforesaid application on wholly misconceived grounds that is why both the courts below nave rightly rejected the said application of petitioners moved by them under Section 9 read with Order VII Rule 11 of C.P.C.
7. Since affidavits have been exchanged between the parties and the case is ripped for final disposal, therefore, with the consent of the parties the case has been heard for final disposal.
8. I have heard Sri P.c. Jain, learned counsel for the petitioners and Sri B. Malik. Advocate for plaintiff-respondent No. 3 and also perused the records.
9. The thrust of the submission of learned counsel for the petitioners in nut shell are that me cause of action disclosed in the plaint does not constitute a suit of civil nature, thus the same is not cognizable by the civil court, as such plaint is liable to be rejected on the ground of non-disclosure of cause of action under Section 9 read with Order 7 Rule 11 C.P.C. The statements made in the pleadings do not tumished sufficient particulars so as to constitute complete cause of action, as such on this ground also plaint is liable to be rejected. While elaborating his arguments the learned counsel for the petitioners has submitted that there was no pleading in the plaint that constitution of Central Administrative Committee and its bye-laws created any civil right in favour of the plaintiff or other followers of the faith, which could be enforced in a court of law. The plaintiff has not tiled or produced any Constitution or bye-laws before me courts below nor there was any pleading in the entire plaint that there was any provision in written constitution of Central Administrative Committee or any of its bye-laws against or prohibiting the offer of Bhog, Prasad, Dhoopwatti Agarwatti. Garianding of photo or decoration by Jhar-phanoos as alleged in the plaint, in absence of Guru . The prohibition of aforesaid act was pleaded in the plaint in paragraph 6 on the basis of allegation that those acts were against the teaching of Radha Soarm Faith and there was no mention of constitution or bye-laws or any particular provision or rule thereof, which were alleged to be violated by the complained acts, in paragraph 3 of plaint the subject matter of Constitution and Bye-laws of Central Administrative Committee was pleaded as temporal subject i.e. the regulation, administration and preservation of Satsang and its properties, I here is no specific allegation m the plaint touching the administration, preservation or management of the Satsang and its properties and the plaintiffs civil right to interfere in such acts of Central Administrative Committee. The entire gist of the plaint related to certain rites observed by the followers of the faith, which the plaintiff considered against the tenets and teaching of faith and the observance of which hurt the sentiments and feelings of the plaintiff' as clearly pleaded as the only cause of action in paragraph 8 of the plaint. At any eventuality the observance of any religious rites or rituals either on the basis of principles of any faith, teaching of its Gurus, or any writing be it in the form of Constitution or Bye-laws do not give rise to any civil right of either of follower to compel the other follower to adopt a particular manner of rituals or rites, unless the plaintiff further establish that such rituals are essential requirement of any civil right or office of the plaintiff, which he is holding. The matter complained of are not justiciable nor the civil courts are competent to adjudicate on them. It is matter of one's own faith and conscience to achieve his/her own salvation by practicing any religion in any form or manner subject to public order, morality and health, which is fundamental right of every citizen guaranteed under Article 25 of the Constitution of India. In case the plaintiff considers that complained rites and rituals are against the teaching of faith, he may not observe them hut he cannot compel other followers by a court's decree not to observe the aforesaid rituals. But both the courts below have failed to appreciate the matter in correct perspective and impugned judgments and orders have been passed on the basis of assumption,-conjectures and surmises.
10. Contrary to it, learned counsel for respondents has supported the impugned judgments and orders passed by both the courts below and further submitted that plaintiff-respondent has made necessary statements of material facts disclosing complete cause of action for the relief sought for in the plaint which constitutes a suit of civil nature cognizable by the civil courts under Section 9 of the CPC. Thus, the suit is fully maintainable and the plaint could not be rejected on the alleged 'ground of non-disclosure of cause of action under Order 7 Rule 11 CPC, accordingly, the judgments and orders of both the courts below are fully justified in given facts and circumstances of the case and cannot be called for any interference on the grounds mentioned in the writ petition.
11. On the basis of rival contentions and submissions of the parties, following questions arise for consideration before this Court:
(i) As to whether the plaint has disclosed any cause of action to constitute a suit of civil nature or not?
(ii) As to whether the plaint was liable to be rejected under Order VII Rule 11 C.P.C on the ground of non-disclosure of such cause of action?
12. In order to find out complete and collect answer of the aforesaid questions it would be necessary to notice briefly the law pertaining to the maintainability of suits in civil courts under Section 9 C.P.C. in respect of subject matter of dispute and the ambit and scope of Order VII Rule 11 C.P.C.. At very out set it is necessary to point out that the answer of second question would be wholly dependant upon the answer of first question referred above, therefore, it would be necessary to deal with both the questions together. For ready reference the provisions of Section 9 C.P.C. and Order VII Rule 11 C.P.C. is reproduced as under :-
"Section 9.- Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (I). - A suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
{Explanation (II).- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.} "
"Order 7 Rule 11. Rejection of plaint.- The plaint shall he rejected in the following cases:-
(a) where it does not disclose a cause of action:
(b)...
(c)...
(d) where the suit appears from the statement in the plaint to he barred by any law;
(e) ...
(f) ...
13. From a bare reading of Section 9 C.P.C. it is clear that the civil courts subject to provisions contained in the code have jurisdiction to try all the suits of civil nature except the suit of which cognizance is either expressly or impliedly barred. Thus it is clear that it is a suit of civil nature, which is cognizable by the civil court unless its cognizance is either expressly or impliedly barred. As a necessary corollary to this it follows that a court cannot entertain a suit which is not of civil nature. Thus the question arises for consideration that which suit would be of civil nature? The explanations appended to Section 9 CPC. throw some light to find out approximate answer to this question.. The Explanation (I) makes it clear that a suit which the right of property or an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on decision of questions as to religious rites or ceremonies. The Explanation (II) makes it further clear that it is immaterial whether or not any fees are attached to the office referred to in Explanation (I) or whether or not such office is attached to a particular place. Although from a bare reading of substantive enacting part of the Section 9 of the Code it is clear that the jurisdiction of the court is controlled by two exclusionary clauses incorporated in enacting part of the Section 9 itself, namely, " subject to provisions herein contained" and "excepting suits of which cognizance is either expressly or impliedly) barred", but having regard to the facts and question in controversy involved in the case it is not necessary to examine the aforesaid aspect of the matter . rather the scrutiny has to be confined to the extent of question in controversy involved in the case.
14. Before dealing with the issue in detail on the basis of case laws having material bearing on the issue, it is necessary to examine the provisions of Order 7 Rule 11 CPC also. From perusal of Order 7 Rule 11 CPC. it is clear that a plaint shall be rejected on the grounds mentioned under Rule 11 inter alia (a) where it does not disclose a cause of action; (d) where the suit appears from the statement in a plaint to be barred by any law. Thus it is clear that if the plaint discloses cause of action which Constitutes a suit of civil nature, the plaint cannot be rejected unless from the statement in the plaint itself the suit is barred by any law or the plaint is liable to be rejected on other grounds mentioned in Rule 11 CPC.. Thus a joint reading of provisions of Section 9 and Order 7 Rule 11 CPC makes it clear that in order to maintain a suit in the civil court, the plaint must disclose ..cause of action which constitutes a suit of civil nature which should neither be barred by any law nor the cognizance of which is either expressly or impliedly barred.. As indicated earlier it is necessary to point out again that since the attack against maintainability of suit rests not on any other grounds except on the ground that it does not disclose cause of action constituting a suit of civil nature, therefore, the scrutiny has to be confined to the aforesaid aspect of the matter only.
15. At this juncture it is also necessary to point out that 'under Order 7 Rule 13 C.P.C. the provisions have been made to the effect that if a plaint is rejected on any of the grounds mentioned under Order 7 Rule 11 C.P.C. the same shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. For ready reference the provisions of Order 7 Rule 13 C.P.C. is reproduced as under :-
"13. Where rejection of plaint does not preclude presentation of fresh plaint.- The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. "
16. Now reverting back again on the question which suit would be of civil nature, it is necessary to point out that although the area of operation is very comprehensive which can not be confined in a narrow Compass, but in order to appreciate true contents and import of expression "civil nature" it would be useful to refer some case law having material bearing with the issue and before such reference is made ,i would be appropriate to have meaning and description of some other expressions of similar nature, which may also have similar connotations from the Law Lexicon, as under:-
The word 'civil' is derived from the Latin word 'civis' meaning a citizen. The word 'civil' when used as an adjective to 'law has been defined in the shorter Oxford Dictionary as 'pertaining to the private rights and remedies of a citizen as distinguished from criminal. political etc.' "Civil. In legal language the word "Civil" has various significations. In contradictions to "barbarous" or "savage" the term may be used to indicate a state of society reduced to order and regular government; in contradiction to "criminal", it indicates the private rights and remedies of men as members of the community, in contrast to those which are public and relate to the government; it also relates to rights and remedies sought by action or suit distinct from criminal proceedings and concerns the rights of and wrongs to individuals considered as private persons, in contradistinction to criminal or that which concerns the while Political society, the community , state, government: as, civil action, case, code, court, damage, injury, proceedings, procedure, process, remedy. Again the term is often used in contradistinction to "military" or "ecclesiastical" to "natural" or "foreign".
1. Pertaining to the private rights and remedies of a citizen, as distinguished from natural; pertaining to the ordinary life and affairs as a citizen, as distinguished from ecclesiastical etc, 2. as distinguished from military; 3. pertaining to citizens.
"Civil action. A personal action which is instituted to compel payment, or the doing of some other thing which is purely civil. It is an action which deals with acts which constitute an infringement or privation of the private or civil rights belonging to individuals, civil actions: "All legal proceedings partaking of the nature of a suit and designed to determine the rights of private parties". The phrase "civil actions" is used as opposed to criminal actions. The phrase. "civil action" includes actions of law, suit in chancery, proceedings in admiralty, and all other judicial controversies in which rights of property are involved, whether between parties, or such parties and the government, it is used in contradistinction to prosecutions for crime. The precise meaning of the descriptive term "civil actions" must however be judged by its connections and the manner in which it is used in any particular case. It is in all cases dangerous to take particular expressions applicable to the subject under consideration and to treat them as general words affecting rules and definitions applicable to all cases. Howard v. Merrimac River Locks etc. 12 Cush .Mass. 259.
The words "civil action" or "'civil suit" or a "civil case" mean more or less the same-thing, and is a proceeding in a Court of justice by one party against another for the enforcement or protection of a private right, or for the redress or protection of a private wrong.(37 Fed. 497.) A proceeding in a court of justice by one party against another for the enforcement or protection of a private right, or for the redress or prevention of a private wrong (S.43 IPC.) "Civil and civil nature. The word "civil" according to dictionary means "relating to the citizen as an individual". The word 'nature' has been defined as "the fundamental qualities of a person or thing, identity or essential character, sort kind, character". The word civil nature is wider than the word "civil proceeding."
"Civil rights are those which appertain to citizenship and which may be enforced or redressed by a civil action
17. In M. Appadorao Ayyangar and Ors. v. P.B. Annangarachariar and Ors., reported in AIR 1939 Madras 102, it was held that a suit will not lie to recognize any right on their part to stand in a front row of the congregation or to prescribe the modes of worship, prayer and religious precedence, where no question of civil right really arises. For ready reference the relevant portion of the decision is reproduced as under:.
"Before dealing with the prayer for detailed specifications of the ritual connected with the service and the rights of the worshippers, it is desirable to set forth briefly the principles which govern such suits and to consider whether a suit pertaining to ritual is one within the cognizance of the civil courts. It is think, unquestionable that the civil courts in India have no ecclesiastical jurisdiction and that they cannot decide questions of ritual except in so far as the decision of such questions is a necessary incident to the decision of civil rights. It is well established that a right to worship in a particular temple ...is a civil right and that a right to perform a religious office to which obligations and emoluments are attached is also a civil right. It has been recognized that the court in adjudicating on a right of worship or a right to a religious office not infrequently is obliged to decide incidentally questions of ritual but it follows that the Court will not on a mere pretence that a right to worship has been infringed, arrogate to itself a jurisdiction which it does not possess to prescribe forms of prayer, rights to religious precedence and question of that nature.
The right of the plaintiffs-appellants to take part in the adyapakam worship has been not only recognized but defined. The right of the defendants mirasidars to conduct the adyapakam service has also been established by judicial decisions. I am of opinion that the decrees of the High Court in the two cases quoted have settled . with such definition as is necessarily incidental to the establishment of the civil right both of the mirasidars and of the ordinary worshippers. the ritual which it is the duty of the office holders to observe. The plaintiffs ask this Court to go further than this and prescribe a complete set of rubries which shall establish precisely the prayers to be used, the positions to be occupied by the various classes of worshippers, the time when the service is to begin and cease and the precise manner in which it is to be conducted. In-answer to this prayer, I would only observe that the civil courts have neither the power nor the duty to attempt to draft a prayer book for this temple.
I have already indicated that to my mind the plaintiffs are in error in assuming that the decision in the 1906 suit negatived the right of the Thengalai mirasidars to recite their own vazhi thirunamam at the conclusion of the service. The right of the Yadagalais to join the service as worshippers has been established and is not contested. To recognize any right on their part to stand in the front row of the congregation would be not only to afford to them facilities for impeding the performance of the adyapakam service by the mirasidars who have the right and the duty to lead it, but would in effect be to lay down as a matter of right a rule of precedence in worship which the plaintiffs are under no obligation to perform and in which it has been established that they have no more than a right to join as members of the general body of worshippers frequenting the temple. Owing to the factions between the parties the Magistrates have found it necessary to issue temporary orders prohibiting the Vadagalais from stationing themselves in the positions where their presence was deemed likely to lead to a breach of the peace. Those orders are justified by the paramount necessity to prevent disturbances. A civil court can not in my opinion , be required to declare the right of the plaintiffs to stand .in any particular row of the congregation. Obviously, the mirasidars who have the duty to lead the service must be protected in the exercise of their duty. It has been recognized that the plaintiffs have the right to join in the services as ordinary worshippers without interfering in the conduct of the service by the mirasidars. It is an obvious exaggeratior to suggest that the recital of prayers which are customary but peculiar to the officiating sect amongst to a obstruction of the plaintiffs right of worship. To assert that the plaintiffs have been debarred from worship by reason of their alleged exclusion from the first two rows is also to ignore the obvious facts. I am of opinion that there has been no interference with the civil right of the plaintiffs to worship in the temple that the right of the mirasidars to conduct the adyapakiam service has been sufficiently delimited by the previous judgments and that the civil court has no jurisdiction to prescribe the modes of worship prayers and religious precedence where no question of civil rights really arises."
18. In J. Gopanna v. K. Ramaswami, reported in AIR 1944 Madras 416, it was held by the Court that there may be an exclusive right of worship in a class of persons in a particular temple or a Particular part of temple . a suit will lie for joining in such worship. For ready reference the relevant extract of the decision is quoted below:-
"I have been referred to (1938) 1 M.L.J. 174. 141 M.L.W. 752. 120 I.C. 874, (1939) I.M.LJ. 199, (1939) l.M.L.J 124., 28 Mad 236 and 9 M.L.J. 355. The last case , I think is distinguishable because it really related to the right of members of a certain community to take part in a ceremony which there was no doubt that other persons had a right to conduct. 120 1.C.874 is also not in point, as it relates to the powers of the court under a suieme. The other cases have this in common that they relate to the jurisdiction of the civil court to entertain suits to declare rights to take pan in ceremonies, or to take a particular part in a ceremony , or to assume a position of particular performance in a ceremony. It was held in all the cases that unless the right claimed was attached to an office a suit was not maintainable. The basis for the decision was that a civil court will not interfere with matters of ritual and that questions which do not relate to a right to worship per se but to the manner in which the worship should be conducted., or the particular part that an individual is entitled to perform in the worship are matter of ritual which give rise to no civil rights that are enforceable in civil courts . It does not seem to me however that any of these cases was concerned with the question of the right to manner in which the ceremony should be performed or the part that an individual may take in the ceremony . This question has been considered in two cases that have been cited by learned counsel for the respondents. In 3 M.L.W. 512 Seshagiri Ayyar J. held that a suit for declaration of the right of the plaintiffs to perform the kalyana utsavam in a certain temple was maintainable; arid in 31 M.L.J. 758 it was held that a suit for a declaration to perform 'Tirupallandu mandagapadi" on the first day of Pagalpathu could be maintained. No -doubt, it may not always be easy to draw the line between what is merely a part of the ritual of worship and what is a right Jo conduct the worship itself. But it seems to me that in the present case there is a straight forward claim to have the right to perform the annual worship of the God which is enforceable by a civil suit."
19. in Nar Hari Shastri and Ors. v. Shri Badnnath Tempte Committee, . the Hon 'ble Apex Court has held that a suit for statutory right of worship is a suit of civil nature. in paragraphs 20 and 21 of the decision the Hon'ble Apex Court has held as under-
"(20) It seems to us that the approach of the Court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in tact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purpose of 'darshan' or worship is a right which flows from the nature of the institution itself, and pro the acquisition of such rights, no custom or immemorial usage need be asserted or proved. As the Panda as well as his client are both Hindu worshippers there can be nothing wrong in the one's accompanying the other inside the Temple and subject to what we will state presently, the tact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of darshan or worship of the deities or that the Panda as remuneration from his client for the services he renders, does not in any way affect the legal rights of either of them. In law , it make no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them, it the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public , they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.
(21). This right of entry into a public Temple is. however, not an unregulated or unrestricted right. It is open to the trustees of a public Temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine, The public may also be denied access to certain particularly sacred parts of the Temple, e.g. the inner sanctuary or as it is said the Holy of Holies where the deity is actually located. Quite apart from these, it is always competent to the Temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a Temple. Good conduct orderly behaviour is always an obligatory condition of admission into a Temple.
20. In Mohd. Wasi and Anr. v. Bachnan Sahib and Ors., Special Bench, this Court has held that the right of worship is a civil right . in paragraph 32 of the decision this Court has held 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 sect can go and say prayers therein; (2) it cannot be reserved for Muslim 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 the congregational prayers are said in a mosque in a particular form any Muslim belonging to any other sect 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 "malafide to disturb the ethers; (5) the object of the dedication can neither be altered nor the benehcianes limited or changed; and (6) a Muslim will have a cause of action, if he is deprived of his right to say prayer in a mosque or is prevented from doing so.
21. In Keshav Gupta Chhajju Singh v. Ghayur All Khan, , this Court has held that the proceedings arising out of election petition are the proceedings of civil nature for purpose of Article 133(1) of the Constitution of India, for ready reference paragraphs 9 and 11 of the decision are reproduced as under-
"(9) The expression "civil proceeding" has not been defined in the Constitution and the expression has to be given its ordinary dictionary meaning . The word 'civil' is derived from the Latin word "civis meaning a citizen. The word "civil" , when used as an adjective to "law", has been defined in the Shorter Oxford Dictionary as "pertaining to the private rights and remedies of a citizen as distinguished from criminal, political etc." The word "Political" has been given the meaning as belonging or pertaining to the State. its Government and policy, public, civil of or pertaining to the science or art of politics." In Stroud's Judicial Dictionary the expression "civil proceedings" is given the meaning as an process for recovery of individual right or redress of individual wrong. The meaning of the word..."political" as given in Shorter Oxford Dictionary docs not rule out the possibility of a political right being also considered as a civil right. In every democratic country the right of franchise is considered to be a very valuable right and though the exercise of the right is essentially of civil character.
(11). The privy Council had to deal with a point of somewhat similar nature in the case of Hamid Municipality of Banwarilal Roy, AIR 1947 PC 90. "The Municipality of Hawrah had been superseded by an order of the Governor of Bengal and the Governor directed that Hamid Hasan Nomam should exercise and perform all the powers and duties which might be exercised or performed by or on behalf of the Chairman and the Commissioners, during the period of suspension. The legality of the order appointing Hamid Hasan Nomani to act as a Chairman and Commissioner during the period of the suspension of Hawrah Municipality, was challenged before the High Court at Calcutta. The High Court issued a rule nisi catling "upon the appellant to show cause why an information in the nature of quo warranto should not be exhibited against him. Subsequently, this rule was made absolute by the High Court . An appeal was taken to the Privy Council against the order of the High Court, and the main question decided by the Privy Council was that the High Court had no power to issue the rule, because it had not inherited the personal jurisdiction of the Supreme Court over certain classes of persons residing outside the territorial limits of its ordinary original civil jurisdiction. While considering the above question the Privy Council had to see whether the jurisdiction exercised by the High Court was ordinary original and civil jurisdiction. The Privy Council held.
It cannot be disputed that the issue of such writs is matter of original jurisdiction. As to its being of a civil nature, it was held as long ago as 1788 in Reg v. Francis( 1788) 2 T.R. 484 that information in the nature of quo warranto is in the nature of civil proceeding so that a new trial may be ordered."
They then went on to consider the question whether it was within the ordinary jurisdiction of the High Court, The decision is an authority for the proposition that information in the nature of quo warranto respecting the legal authority of a person to act as a Municipal Commissioner is a proceeding of a civil nature. The question before us is of a similar nature and we think that for the same reasons the proceeding relating to the legality of the declaration of a person to be a duly elected member of the legislature is also of a civil nature."
22. In Sri Sinha Ramanuja Jeer alias Sri Vanamamalai Ramanuia Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and Ors., . Hon'ble Apex Court has dealt with the issue in details in para 9 and 13 of the decisions as under :
"(9) At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in civil courts in respect of honours in temples. Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain. It can entertain every suit of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. As a corollary to this, it follows that a 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, accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It 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 religious 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. 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 ghoshti, in what place, who is to get the tulasi, etc., in which order, and seminal 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 precincts of a temple. One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self importance or claim their right to preferential treatment. But a century of case law in that part of the country has recognized certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in criminal and civil courts. This Court, therefore, does not propose to reconsider the question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position."
"(13) It is not necessary to refer to further citations, for the deicions already cited lay down the relevant principles of law clearly. For convenience of reference we may summarize the law on the subject thus:(1) A suit for a declaration of religious honours and privileges simpliciter will not lie 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 or an office is that the holder of the 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 theerthakar 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 archaka in a certain order. (5) Even if theertham is given or other honours art, shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration 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. "
23. In Ramchand (dead) by his legal representatives v. Thakur Janki Ballabhji Maharai and Anr., . Hon'ble Apex Court has held that civil courts have jurisdiction to frame a scheme for management of a temple which is not a public but a private trust for religious purposes. For ready reference paragraph 8 of the decision is reproduced as under:-
"8. Ramchand has committed several acts of misrrianagement and misappropriation of the temple and its properties. He has set up a personal title to the temple properties and has converted the properties to his own use. Ramchand is therefore not fit to remain in possession as Pujari or as manager or the temple. T he suit is tiled by the deity acting through the Manager. Granting that it is not proved that the Ruler of Bharatpur established the temple and installed the deity, there is abundant evidence that the State of Bharatpur had made from time to time large donations for the maintenance of the temple. The Ruler of Bharatpur had therefore clearly a substantial interest to maintain the suit on behalf of the deity to protect the property. 1 here is no merit in the appeal and therefore, it must fail.
24. In Ugam Singh and Anr. v. Kesrimal and Ors., . it has been held by the Hon'ble Apex court that a right to worship is a civil right. In paragraphs 15, l6 and 18 of the decision the Hon'ble Apex court has held as under:-
"15. From the pleadings and the controversy between the parties it is clear that the issue is not one which is continued merely to rites and rituals but one which affects the rights of worship namely whether the Swetambaries by placing Cnakshus. Dhwajadand 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 Digamberies will not worship the idol which is not Nirakar' or which has Chakshus. it the Digamberies have a right to worship at the temple the attempt of the Swetamberies to put Chakshus or to place Dhwaiadand or kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies 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. It authority was needed we may reter only to two cases. The Privy Council in Sir Seth Hukam Chand v. Maharai Bahadur Singh, 60 Ind App 313 : AIR 1933 PC 193 had to deal with the practices observed by Digamberies and Swetamberies 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 beings on the Hill and against building thereon of Dwellings necessarily involving according to their tenets of a sacrilegious pollution and desecration of the sacred hill. while the Swetamberies had no such belief. Sir John Wallace delivering the opinion of the Board observed:
"These are matters for the Jain themselves and the civil courts are only concerned with them in so tar as they are relevant to questions of civil right such as an alleged interference with the plaintiffs rights 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 tact interfere with the plaintiffs rights of worship."
16. Again this Court in Nar Hari Shastri v. Shri Badnnath Temple Committee was concerned with the rights of the Deoprayagi Pandas to enter the Badnnath Temple alongwith their Yajmans or clients, which it was claimed the Rawal or the Trustee denied and threatened to obstruct the said Deoprayagi Pandas from entering the precincts of the Temple along with their Yajinans or from assisting the pilgrims in the matter of Darshan etc. inside the Temple. 1 he Detendant however, asserted that it was neither necessary or desirable that the plaintiffs should be allowed to accompany their Yajmans or clients into the Temple, as he had himself made adequate arrangements for the Darshan and worship of the pilgrims and that as the sole Trustee and manager of the Temple he had the right to regulate entry into the Temple so that over crowding might be avoided and order maintained inside it. Mukherjee J. ( as he then was) speaking for the Court dealt with this contention in the following passage:
"The true position therefore is that the plaintiffs' right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the Temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the Temple Committee may impose in good faith for maintenance of order and decorum within the Temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form."
It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier 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 sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the appellant to the maintainability of the suit is not well founded.
18. it is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the (Joint below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view. ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational-Ed) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by erecting their Dhwajadand or Kalash over the Temple."
25. Although in Ugam Singh's case (supra) Hon'ble Apex Court has noticed the certain observation made by Sir John Wallace who had delivered the opinion of Board in case of Sir Seth Hukum Chand and Ors. v. Maharaj Bahadur Singh and Ors., AIR 1933 P.C. 193 to the extent it was essential for the aforesaid decision of Hon'ble Apex Court, but it would also be useful to refer certain other observation of their Lordship of Privy Council made in respect of another question as under:
"The charans in the old shrines were impressions of the foot prints of the saints, each bearing a lotus mark. The Swetambaris, who prefer to worship feet themselves, have evolved another form of charan not very easy to describe accurately in absence of models or photographs, which shows toe nails and must be taken to be a representation of part of the foot. This the Digambaris refuse to worship as being a representation of a detached part of the human body. Both the lower courts have held that the action of Swetambaris in placing charans of the description in three of the shrines is a wrong of which the Digambaris are entitled to complain. "
26. In Smt. Ganga Bai v. Vijay Kumar and Ors., Reported in , while drawing distinction between the maintainability of civil suit and appeal in para 15 of the decision the Hon'ble Apex Court held held as under:-
"15. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may at one's peril bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have 'the clear authority of law. That explains why the right of appeal is described as a creature of statute."
27. In His Holiness Srimad Perarulala Ethiraja Ramanuja Jeevar Swami v. State of Tamil Nadu, , it as held that Article 25 guarantees freedom to practice rituals and ceremonies which are integral parts of a religion. In Rev. Stainislaus v. State of Madhya Pradesh, , it was held that right to practice and propagate not only matters of faith or belief but all those rituals and practices which are regarded as integral parts of a religion by the followers of a doctrine. In S.P. Mittal v. Union of India, , it was held that freedom or right involving the conscience must naturally receive a wide interpretation. The suit filed was thus maintainable. The injunction and prohibition sought from interfering in administration of Church are certainly matters which pertain to the religious office. Even the declaration that the Church is Episcopal is covered in the expansive expression of religion as explained in Mittal's case.
28. In Most Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., , the Hon'ble Mr Justice R.M. Sahai ( as he then was) while explaining the scope of Section 9 of the Civil Procedure Code in paragraphs 27, 28, 29, 30 and 35 of the decision, has held as under:-
"27. To appreciate these aspects it is necessary to set out the Section itself and examine its scope and then advert to facts:
"9 Courts to try all civil suits unless barred.(Since quoted earlier).
One of the basic principles of law is that every right has a remedy. Ubi his ibi remediem is the well known maxim. Every civil suit is cognizable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may at one's peril, bring a suit of one's choice. It is no answer to a suit, however, frivolous the claim, that the law confers no such right to sue Smt. Ganga Bai v. Vijay Kumar, . The expansive nature of the Section is demonstrated by use of phraseology both positive and negative. The earlier pan opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the Section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil suit are cognizable unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word 'shall' and the expression, all suit of a civil nature unless expressly or impliedly barred.
28. Each word and expression casts an obligation on the Court to exercise jurisdiction for enforcement of right The word 'shall' make it mandatory. No Court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of expression, ' all suits of civil nature'. The word 'civil' according to dictionary means, 'relating to the citizen as an individual; civil rights. In Black's Legal Dictionary it is defined as, ' relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings'. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal .Revenue tax and company etc. were added to it later. But they too pertain to the larger family of 'civil'. There is thus no doubt about the width of the word 'civil'. Its width has been stretched further by using " the word nature; along with it. That is even those suits are cognizable which are not only civil but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a 'civil proceeding'. The expression came up for construction in S.A.L. Narayan Row v. Iswarlal Brtagwandas, . The Constitution Bench held 'a proceeding' for relief against infringement of civil right of a person is a civil proceeding'. In Arbind Kumar Singh v. Nand Kishore Prasad, ' it was held to extend to all proceedings which directly affect civil rights.' The dictionary meaning of the word 'proceedings' is the institution of a legal action. ' any step taken in a legal action.' In Black's Law Dictionary it is explained as,' In a general sense, the form and manner of conducting juridical business before a Court or judicial officer, Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like .' The word 'nature' has been defined as 'the fundamental qualities of a person or thing; identity or essential character; sort; kind: character.' It is thus wider in content. The word 'civil nature' is wider than the word 'civil proceeding.' The Section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature.
29. Are religious rights, 'for instances right to worship in a religious place, entry in a temple, administration of religious shrines for instance a temple, mosque or a church are rights of civil nature ?ls the suit filed by the respondent had as the declaration, injunction and prohibition sought are in respect of matters which are not civil in nature ? The answer is given by Explanation I. The Civil Procedure Code was enacted during British period. The legislature enacting the law was aware that there were no ecclesiastical Courts either in ancient or Medieval India in England . 'The term "ecclesiastical law" may be used both in a general and in a technical sense. In its general sense it means the law relating to any matter concerning the Church of $England administered and enforced in any Court; in its technical sense it means the law administered by ecclesiastical Courts and persons 'Halsbury's Laws of England Vol. 14 para 1371. The ecclesiastical law of England is as much the law of the land as any other part of the law (Halsbury s Laws of England Vol.14 para 139). There was no such law in our country. The ecclesiastical Courts are peculiar to England The Parliament was aware of it. That is why it added Explanation I to Section 9 of the Civil Procedure Code. It obviates any ambiguity by making it clear that where even right to an office is contested then it would be a suit of a civil nature even though that right may entirely depend on the decision of a question as to religious rites or ceremonies. Explanation-II widens it further to even those offices to which no fees are attached. Therefore, it was visualized from the inception that a suit in which the right to property or religious office was involved in would be a suit of civil nature. Reason for this is both historical and legal. In England ecclesiastical law was accepted as a part of the common law binding on all. But the introduction on English Law into a colony does not carry with it English ecclesiastical law. (Halsbury Laws of England Vol. 14 para 315). In ancient or medieval India the Courts were established by King which heard all disputes. No religious institution was so strong and powerful as church in England. The Indian outlook was always secular. Therefore, no parallel can be drawn between the administration of the churches by ecclesiastical Courts in England. Religion in India has always been ritualistic. The Muslim rulers were by and large tolerant and understanding. They made India their home. They invaded ruled and became Indian. But Britishers made it a colony. However, they did not interfere with religion. Disputes pertaining to religious office including performance of rituals were always decided by the Courts established by law. As far back as 1885 Justice Mehmood in Queen Empress v. Ramzan (1885) ILR 7 Allahabad 461 repelled the argument that the Courts were precluded from considering Muslim Ecclesiastical Law and observed at page 468 as under:-
"I am unable to accept this view, because if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does depend) upon the interpretation of the Mohammadan Ecclesiastical Law, it is to my mind the duty of this Court and of all Court subordinate to it, to take judicial notice of such law." There are numerous authorities where dispute about entry in the temple , right to worship, performing certain rituals have been taken cognizance of and decided by civil courts. In Narsimma Chariar v. Sri Krishan Tata Cbhariar (1870-71) 6 Mad. H.C. Reports 449 it was claimed by the plaintiff that they had the exclusive rights to Adhyapaka Mirass of reciting certain texts or chants in a temple. In that suit it was held:
"The claim is for a specific pecuniary benefit to which plaintiffs declare themselves entitled on condition or reciting certain hymns.
There can exist no doubt that the right to such benefits is a question which the Courts are bound to entertain and cannot cease to be such a question, because claimed on account of some service connected with religion.
If, to determine the right to such pecuniary benefit, it becomes necessary to determine incidentally the right to perform certain religious service, we know of no principle which would exonerate the Court from considering and deciding the point"
It was approved by the Privy Council in Krishnama v. Krishnasamy, (1879)ILR 2 Mad. 62 and the passage extracted above was approved by observing that it was perfectly correct'. This was a decision when Explanation-II was not there. The dispute has two rounds of litigation. In the second round after remand the High Court observed:
"It is certainly not the duty of the civil court to pronounce on the truth of religious tenets nor to regulate religious ceremony: but in protecting persons in the enjoyment of a certain status or property, it may incidentally become the duty of the civil court to detgimine what are the accepted tenets of the followers of a creed and what is the usage they have accepted as established for the regulation of their right inter se."
In Srinivasalu Naidu v. Kavalmari Munnuswami Naidu. it was observed:
"The explanation certainly does not confine the limits of the nature of suit contemplated by the main section. What the Explanation states is only that though religious rites and ceremonies may form the basis of a right that is claimed, such right being a right to property or to office, a suit to establish such right would be a suit of a civil nature. The Section takes within its broad sweep all questions where one person claims any privilege in himself as against others. There is no doubt that such a question would be one of a civil nature."
On the plain phraseology of the Section, therefore, it is clear mat a suit tiled after coming into force of me Constitution for vindication of rites related to worship, of status, office or property is maintainable in civil court and it would be duty of the court to decide even purely religious questions if they have a material bearing on the right alleged in the plaint regarding worship, status or office or property.
30. It a dispute arises whether a particular religious shrine has ceased to be so due to its anti-religion activities then the followers of that religion or beliet and faith cannot be denied the right to approach the Court. Explanation I is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the Courts to entertain suits where dispute about religious office is involved. The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Episcopal. But the Court may retrain from adjudicating upon purely religious matters as it may be handicapped to enter into the hazardous, hemisphere of religion. Maintainability of the suit should not be contused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation 1 could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the expression is contested used in Explanation I is not of any consequence. It widens the ambit of the Explanation and includes in its fold any right, which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognizable under Section 9.
35. After coming into force of the Constitution Article 25 guarantees as fundamental right to every citizen of his conscience, faith and beliet, irrespective of cast, creed and sex, the infringement of which is enforceable in a Court of law and such Court can be none else except the Civil Courts . It would be travesty of justice to say that the fundamental right guaranteed by the constitution is incapable of enforcement as there is no Court which can take cognizance of it. There is vet another aspect of the matters that Section 9 debars only those suits which are expressly or imptiedly barred. No such statutory bar could be pointed out. Therefor the objection that the suit under Section 9 CPC was not maintainable cannot be accepted."
29. In P.M.A. Metropolitan's case (supra), Hon'ble Mr. Justice Sahai has surveyed the entire case law on the point and has also taken a note of the provisions of Articles 25 of the Constitution of India which guaranteed that all persons are equally entitled for freedom of conscience and the right to profess, practice and propagate the religion, which gives rise the right to seek declaration in respect of such right and a suit under Section 9 CPC. is maintainable not only because of it is the case or religious office, but also because of the reason that there is no other forum where sucn dispute can be resolved, it a dispute arises whether particular and religious shrines have ceased to be so due to as anti-religion activities, ' en the followers cannot be denied the right to approach the court. The Court may retrain from adjudicating upon purely religious matters, as it may be handicapped to enter into a hazardous hemisphere of religion. Maintainability of suit should not be contused with exercise of jurisdiction. Religious rite is the right of a person believing in a particular faith to practice it, to preach it and to protess it, it is a case of civil nature., The dispute about the religious office is civil dispute as it involves the dispute relating to right, which may be religious nature, but are civil in consequence. Hon' ble Mr.Justice sahai further observed that there is yet another aspect of the matter that Section 9 CPC. debars only those suits which are expressly or imphedly barred and such statutory bar could not be pointed out, therefore, the objection that the suit under section 9 CPC. was not maintainable, cannot be accepted.
30. Article 25 of the Constitution of India guarantees that every person in India shall have the freedom of conscience and shall have the rightfreely to protess, practice and propagate religion, subject to restriction imposed by State on the ground of public order, morality and health and other provisions of part III of the Constitution, since the freedom belongs to every person, the freedom of one cannot encroach upon a similar freedom belonging to other persons, every person has a fundamental right not merely to entertain such religious belief as may be approved by his judgement or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propogate his religious view for the benefits of others. The freedom of conscience does not necessarily have connection with any particular religion or any faith in God. it also implies the right of a person not to be converted into another man s religion or to bring to any religion at all. T he freedom of conscience would be meaningless unless it were supplemented by the freedom of unhampered expression of spiritual conviction in word and action, freedom of profession ...means the right of believer to stale his creed in public. freedom of practice means his right to give it expression in forms of private and public worship. It would thus include the freedom to practice rituals and ceremonies, which are integral parts of a religion. It is also necessary to point out that religion is a matter of faitn, but it is not necessarily theistic and there are well Known religions in India like Buddhism and Jainism which do not believe in God. On the other hand, a religion undoubtedly has its basis in a system of belifs regarded by those, who profess that religion as conducive to their spiritual well being. Thus freedom to practice only those rituals and ceremonies has been recognized as fundamental right which are regarded as integral part of the religion according to the tenets of the religion or faith. In deciding the question as to whether a given religious practice is an integral parts of the religion, the test always would be whether it is regarded as such by the community following the religion or not, ot-course this question will have to be decided by the Court and the tindings of the court will depend upon the evidence adduced as to conscience of comn unity and the tenets of religion.
31. Article 26 of the Constitution of India guarantees that every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes and to m anage its own affairs in the matter of religion. This Article guaranteed certain rights not only to every religious denomination or sect but also to a section thereof. The expression "denomination means a collection of individuals classed together under the same name; a religious sect or body having a common faith and organization and designated by a distinctive name, iherefore, in order to constitute a religious denomination, three conditions are essential, (a) It must be a collection of indiudual class who nave a system of beliets or doctrines, which they regard as conducive to their spiritual well being, i.e. a common faith(b) A Common organization. (3) Designation by a distinctive name. Although each religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the. religion, they hold, but the court has right to determination whether a particular rites or observance is regarded as essential by the tenets of particular religion or not as held by the Hon'ble Apex Court in Tilkayat Shri Govind Laiji Maharaj etc. v. Mate of Kaiasthan and Ors., (paragraphs 57 and 58 ) at page 1660 of the report, in Mahant Moti Das and Ors. v. S.F.Sahi and Ors. reported in AIR 1959 SC. 942(950) and Durgah Committee Ajmer and Anr. v. Sved Husain All and Ors., reported in AIR 1961 SC 1402(1415)
32. At thus juncture an another question arises lor consideration that what is legal nature of fundamental rights ? In this regard it is necessary to point out that the fundamental rights are certain rights which are conferred by Part III of the Constitution of India. Fundamental rights are enforceable before the Supreme Court straight way under Article 32, which is also a fundamental right conferred by Part III of the Constitution. Almost all the fundamental rights are enforceable only against the state but there are certain fundamental rights conferred by constitution, which are also enforceable against whole world. They are to be found enter alia in Articles 17, 23 and 24 of the Constitution as noticed by the Hon'ble Apex Court in para 12 and 16 of the decision rendered in People's Union tot Democratic Rights and Ors. v. Union of India and Ors., . The fundamental rights which are guaranteed in Part III of the Constitution are guaranteed against state action both legislative and exwutive as distinguished from violation of such rights by private individuals. In case of violation of such rights by private individuals the person aggrieved must seek his remedies under ordinary law and not under Article 32 of the Constitution as held by Hon'ble Apex Court in context of alleged violation of fundamental rights guaranteed under Article 19 and 31 of Constitution by private individual in P.D. Shamdasani v. Central Bank of India, and Smt. Vidya Verma v. Dr. Shiv Narain Verma . For ready reference para 7 of the decision of Hon'ble Apex Court rendered in Smt. Vidya Verma's case is reproduced as under :--
"7. This principle was applied to Articles 19(1)(f) and 31(1) by a Bench of five Judges in P.D. Shamdasani v. Central Bank of India, (B) who held that violation of rights of property by a private individual is not within the Purview of these Articles, therefore, a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under Article 32. Article 21 was not directly involved but the learned Judges referring to Article 31(1) said at page 60.
"It is clear that it is a declaration of the fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty. There is no express reference to the State in Article 21. But could it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals? The words 'except by procedure established by law' plainly exclude such a suggestion".
They held that the language of Article 31(1) was similar and decided that Article 31(1) was did not apply to invasions of a right by a private individual and consequently no writ under Article 32 would lie in such a case. For the same reasons we hold that the present petition which is founded on Article 21 does not lie under Article 32. It is accordingly dismissed."
33. Thus the principle deducible from the aforesaid enunciation of law is that if any fundamental rights conferred by Pan III of the Constitution of India is violated or invaded by private individuals who are not covered by definition of State as contemplated by Article 12 of the Constitution, the aggrieved persons have remedy under ordinary law of the land and not under Article 32 , but he cannot be left without any remedy As it is well settled principle laid down in well known maxim "ubi jus ibi remedium" where there is a right, there is a remedy. Therefore, there can be no room for doubt to hold that in violation of such fundamental rights by private individuals a civil suit under ordinary law would be maintainable before the civil court which would entertain it unless it is found barred either expressly or impliedly.
34. Now viewing the matte; from different and another angle it is necessary to point out that the fundamental rights guaranteed under Article 25 of the Constitution of India to the individual being are constitutional and superior rights and are certainly rights of high degree than that of mere civil rights, which are either creature of statute or arise out of some other source of law of general nature. Thus these fundamental rights also embrace in its fold or inheres those civil rights of individual being which falls within four corner of such fundamental rights on the principle of higher includes lower and larger includes lesser and such civil rights on their elevation as fundamental right will not lose the character of civil rights besides having become a fundamental right. Accordingly, any infringement or invasion of the aforesaid fundamental rights by private individuals may also be regarded as the infringement of civil rights of individual being. The infringement of such rights cannot be determined by any other agency except by the civil court in our judicial system. It is also because of the reason that remedy to enforce fundamental rights directly before the Supreme Court and High Courts cannot be regards as in derogation of remedy to enforce it before the civil court under ordinary law of land rather it may be regarded in addition thereto,
35. Thus from the aforesaid discussions, there can be no room for doubt to hold that it the infringement of any fundamental rights which includes in it civil right of individual being in respect of the religious belief or faith is complained of, the civil court would not decline to entertain it merely because it pertains to religious rites or ceremonies though the same is claimed as integral part of religious faith according to tenets of particular religious faith. Although while doing so the court will not pronounce upon truth of religious tenets of faith, not because that the court has no such jurisdiction to decide and pronounce upon it but because of the reason that court will not embark upon the inquiry into hazardous religious hemisphere as observed by His Lordship Hon'ble Mr. Justice R. M. Sahai referred herein before. It is also because of reason that every person has freedom to entertain such religious belief or faith as may be approved by his judgement or conscience which is protected by Article 25 of the Constitution. In my considered view the civil court would be fully competent to entertain such action, if complained of through a proper suit presented to it. The aforesaid suit would be within the comprehensive sweep and compass of a suit of civil nature and cannot be thrown out unless it is expressly or impliedly barred or the plaint is otherwise liable to be rejected. It is for the court to decide whether infringement as complained of in tact have taken place or not on the basis of religious tenets of faith. This question can be a subject matter of scrutiny and enquiry in the trial on the basis of evidence adduced by the parties and cannot be subject matter of scrutiny in respect of maintainability of a suit to be entertained by the civil court at very threshold at the time of presentation of plaint.
36. Thus from a close analysis of the law enunciated by the Hon'ble Apex Court and High Courts, it is clear that a suit filed for vindication of rights related to worship, status, office or property is maintainable in civil court irrespective of the tact that the rights i.e. claimed, are based on religious rites and ceremonies and it would be duty of the court to decide even purely religious questions, if they have material bearing on the right alleged in the plaint regarding worship, status, office or property. Although it is not the duty of the civil court to pronounce on the truth of religious tenets nor to regulate religious ceremonies, but in protecting persons in the enjoyment of certain status, or property, it may incidentally become the duty of the civil court to determine what are the accepted tenets of the followers of a creed and what is the usage they have accepted as established for the regulation of their right inter se. The right of worship has been accepted and recognized, as a civil right, which includes entry in a temple, administration of religious shrines for instance a temple, mosque or a church, interference with which raises a dispute of civil nature. Worship is also a noun and name of performance or saying prayers in religious or spiritual sense. It is a sort of performance of religious practice by believer of a religious faith not necessarily theistic. This was settled legal position earlier to the decision of Hon'ble Apex Court rendered in P.M.A. Metropolitan's case (supra). But in the aforesaid decision the position has been explained further by taking note of Article 25 of the Constitution of India. In aforesaid case Hon'ble Apex Court has held that fundamental rights guaranteed under Article 25 of the Constitution are basically religious rights. Infringement of such rights entails civil consequences, as such civil suit would be maintainable. It is also observed that infringement of such rights is enforceable in court of law and such courts would be none except civil court. It would be travesty of justice to say that fundamental right guaranteed by the Constitution is incapable of enforcement as there is no court which can take cognizance of it.
37. Now a question would arise to be considered by this court as to whether any practice of religious rites or ritual ceremony would be regarded as religious practice for the purpose of Article 25 or 26 of the Constitution or not? The answer would simple as discussed earlier that only those practice of religious rites or ritual ceremonies are protected by the aforesaid Articles of the constitution which are integral part of the particular religion or faith according to the tenets of the aforesaid religious faith. Thus from a conspectus of whole issue discussed herein before, it is clear that for vindication of rights related to worship, status, office or property civil suit is maintainable in civil court irrespective of fact that right as claimed are based on religious rites or rituals ceremonies, and such suit would be a suit of civil nature, A suit for infringement of practice of religious rites and ritual ceremonies would also be suit of civil nature and maintainable in civil court, where such rites or ritual ceremonies are regarded as integral part of religion or faith according to the tenets of particular religious faith irrespective of fact that they have any materia bearing on the right regarding worship, status, office or property, otherwise the rights guaranteed by Articles v of the Constitution would be rendered meaningless. If invasion of such right by private individuals is complained of, the civil suit would be maintainable and such suit would also be a suit of civil nature consequently where the follower of a particular faith complain about certain activities involving practice of ritual ceremonies by other followers of faith, which is either regarded as ante-religious activities or religious practice against the tenets of religion or faith at place of worship or at the place of religious practice or any way creates hindrance in professing and practicing religious faith of such follower, a suit for declaration and prohibitory injunction would be maintainable at instance of aggrieved follower against other follower of faith, who profess and practice religious activities or ritual ceremonies against tenets of faith, such suit would be a suit of civil mature.
38. Apart from it at this juncture, it is also necessary to consider what is impact and purpose of the explanations appended to the provisions of Section 9 CPC. Before an enquiry is made into this difficult question, I must appreciate the intent, purpose and legal effect to an explanation. It is now well settled that the explanations added to a statutory provision, is not a substantive provision in the sense of the term, but as a plain meaning of the word itself shows that it is merely meant to explain or to clarify certain ambiguities, which may have crept in the statutory provisions. The purpose and object of the explanation and the impact on the substantive provisions to which it is appended or attached, has been considered by the Hon'ble Apex Court at length in S. Sundaram Pillai etc. v. V.R. Pattabiraman, . For ready reference paragraphs 45, 46, 47, 48, 49, 50, 51 and 52 of the aforesaid decision are reproduced as under:-
"45. Sarathi in 'Interpretation of Statutes" while dwelling on the various aspect of an Explanation observes as follows:
"(a) The object of an explanation is to understand the Act in the light of the explanation.
(b) It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute."
46. Swamp in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus:
"Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the Section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or substract from it. Thus an explanation does not either restrict or extend the enacting part' it does not enlarge or narrow down the scope of the original section that it is supposed to explain. The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa."
47. Bindra in 'Interpretation of Statutes' (5th Edn) at page 67 states thus:
"An explanation does not enlarge the scope of the original section that it is supposed to explain. It is axiomatic that an explanation only explains and does not expand or add to the scope of the original section. The purpose of an explanation is, however, not to limit the scope of the main provision. The construction of the explanation must depend upon its terms and no theory of its purpose can be entertained unless it is to be inferred from the language used. An explanation must be interpreted according to its own tenor."
48. The principles laid down by the aforesaid authors are fully supported by various authorities of this Court. To quote only a few in Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Commercial Tax Officer a Constitution Bench decision, Hidyatullah, J. speaking for the Court observed thus:
"Now , the Explanation must be interpreted according to its own tenor, and it is meant to explain Clause (1) (a) of the Article and not vice versa. It is an error to explain the Explanation with the aid of the Article, because this reverses their roles."
49. In Bihta Co-operative Development Cane Marketing Union Ltd. v. Bank of Bihar this Court observed thus:
"The Explanation must be read so as to harmonise with and clear up any ambiguity in the main section. It should not be so construed as to widen the ambit of the section."
50. In Hiralal Rattanlal v. State of U.P., this Court observed thus:
"On the basis of the language of the Explanation this Court held that it did not widen the scope of clause (r). But from what has been said in the case, it is clear that if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect be given to legislative intents notwithstanding the fact that the legislature named that provisions as an Explanation."
51. In Dattatrays Govind Mahajan v. State of Maharashtra, , Bhagwati, J. observed thus:
"It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. Therefore, even though the provision in question has been called an Explanation , we must construe it according to its plain language and not an any a priori considerations."
52. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act is can help or assist the Court in interpreting the true s purport and intendrnent of the enactment, and
(e) it cannot however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same."
39. Now applying the aforesaid principles with the explanations attached to Section 9 C.P.C., it is clear that the explanations added to it can neither restricts nor extends the enacting part of substantive provision. They do not enlarge or narrow down the scope of the original section that it is supposed to explain. They are supposed to provide an additional support to dominant object of the Section as to make it meaningful. They can not be interpretated in a way to interfere with or change the enactment or any part thereof as the Explanation cannot be said to add or substract from the statutory provision to which it is attached. They cannot, however, take away any statutory right with which a person under statute has been clothed and become hindrance in the interpretation of the same. The explanation added to Section 9 CPC. can also not be said to be a controlling provision of what has been provided in substantive provisions of Section. As indicated earlier herein before, the controlling provision of Section 9 of the Code has already been incorporated in the substantive provisions of Section 9 CPC. itself., which in clearest term debars only those suit of civil nature, which are expressly or impliedly barred. The explanation can not confine the limits of nature of suit contemplated by main section. Therefore, by reading the explanations attached to the Section 9 of the Code the scope of main Section can neither be narrowed nor be limited to suit in which only right of property or to office is contested, notwithstanding such right may depend entirely on the decision of question as to religious rites or ceremonies. If the practice of any religious rites or ceremonies are against the tenets of faith and complained of by affected follower against the other a civil suit would be maintainable despite that the same is not related to right of property or to office or status or worship and civil court would be competent to examine the question as to whether particular religious practice of rituals or ceremonies are integral part of that religious faith according to the tenets of the aforesaid religious faith or not or it is against it, a declaration of the aforesaid effect and prohibitory injunction can he sought for by the aggrieved followers of the aforesaid faith, otherwise giving different and narrow meaning to the provisions of Section 9 CPC and limiting its scope and meaning to a suit pertaining to the right of property or to office alone, would be a substraction from the substantive provision contained in Section 9 CPC and limiting its' scope by confining it to the extent of explanations attached to it. Such interpretation would be distortion of the substantive provisions contained in Section 9 of the Code and reading of the entire substantive provisions of Section 9 CPC. within the meaning and narrow compass or spectrum of explanations attached to it would make the substantive provisions meaningless. If such interpretation would be permitted it would be a total negation of substantive provisions of Section 9 of the Code. If it would have the legislative intent, there was no need to enact substantive provision in a manner it was enacted with a such wide amplitude, the purpose could have been served either without attaching the explanations or provisions contained in explanation could have been drafted as main substantive provision without any help of explanations. Thus, a harmonious interpretation may be made by reading the Explanation as explanatory provisions of Section 9 CPC to the extent indicated therein by leaving it unexhausted by said explanations. At the most, matters covered by explanation , may be treated to be illustrative and not exhaustive. The residue remains thereafter may be left open for determination of the courts to include any right which is still unrecognized or unidentified which may fall within broad spectrum of civil right or right of a civil nature. Virtually Section 9 pertains to the jurisdiction of civil court to take cognizance of suit of civil nature if it is not otherwise either barred expressly or impliedly. The language with which it is coached demonstrate that it is plenary in nature. The heading of section, which is styled as "courts to try all civil suits unless barred" is also pointer of the nature of jurisdiction and leads towards same conclusion. Therefore the explanation added to it should not be interpreted in a manner to take away any right conterred by .main section as indicated herein before.
40. Now before dealing with the factual scenario, it would be appropriate to deal with the legal ambit and scope of Order 7 Rule 11 CPC. In this connection I would like to refer a case of Sopan Sukhdeo Sable and Ors. v. Assitant Charity Commissioner and Ors., (2004) 2 S.C.C. 137, wherein the Hon'ble Apex Court while taking note of the earlier decisions, has dealt with the issue in detail at a great length. For ready reference the only some paragraphs of the aforesaid decision having material bearing with the issue are reproduced as under :-
"(9) Before dealing with the factual scenario, the spectrum of Order 7 Rule 11 in the legal ambit needs to be noted.
(10) In Saleem Bhai v. State of Maharashtra , it was held with reference to Order Rule 11 of the Code that the relevant facts which need to he looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any state of the suit- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
(11) In I.T.C. Ltd v. Debis, Recovery Appellate Tribunal , it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
(12) The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned there is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing of examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal (13) It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
(14) In Raptakos Brett & Co. Ltd. v. Ganesh Property it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule II of Order 7 was applicable.
(15) There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the contact in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should he borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
(17) Keeping in view the aforesaid principles, the reliefs sought for in the suit as quoted supra have to he considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits, Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigeation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.
(18) As noted supra, Order 7 Rule 11 does not justify-rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings ". It has three clauses permitting the court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the court.
(19) Order 6 Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as be case may be, but not the evidence by which they are to be proved.
(20) There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd. (1936) I KB 697 : (1936) All ER 287 (CA) in the following passage: All ER p. 294 "The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the oldphraseology, ana in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Philipps v. Phillipps (1878) 4 QBD 127); or 'a further and better statement of claim' may be ordered under Rule 7.
The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim- gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial."
The dictum of Scott, L.J. in Bruce case has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez and the distinction between "material facts" and "particulars" was brought out in the following terms: (SCC p. 250, para 29) "The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite parly understand the case he will have to meet."
Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate' at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11. even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting afresh plaint in terms of Rule 13. "
41. The matter in issue has been considered again by the Hon'ble Apex Court in Church of North of India v. Lavaiibhai Rataniibhai and Ors., reported in JT 2005(5) SC 202. In para 33 of the decision t he Hon'ble Apex Court has held as under:-
"33. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety The Court may not be justified in determining the question, one way of the other only having regard to the reliefs claimed de'hors the factual averments made in the plaint The rules of pleadings postulate that applaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 of the Code of Civil Procedure."
42. Thus from the aforesaid enunciation of law , it is clear that in order to determine whether the plaint is liable to be rejected on the ground of nondisclosure of cause of action, the averments disclosing the cause of action in the plaint and reliefs sought therefrom must be consered in their entirety. The Court would not be justified in determining the question only having regard to the relief claimed de'hors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action, which can be entertained by the civil court, it may be rejected in the terms of Order 7 Rule 11 of the Code of Civil Procedure. While undertaking this exercise it is the duty of the Court to read out pleadings as a whole to ascertain its true import. It is not permissible to cull out a sentence or passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction of words or change of its apparent grammatical Sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Keeping in view the aforesaid principles. the reliefs sought for in the suit have to be considered.
43. At this juncture it is necessary to point out that Order 6 Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as me case may be, but not the evidence by which they are to be proved, it is also necessary to point that there is distinction between "material tacts and the "particulars", the words material tacts show that the tacts necessary to formulate a complete cause, of action must be stated. Omission of a single material tact leads to an incomplete cause of action and the statement of plaint becomes bad. the function or "particulars is to present lull picture of the cause of action with such further mioirmation in detail as to make me opposite party understand the case he will have to meet and to enable him to prepare for tnal. Thus the omission or particulars cannot be treated to be fatal in sense of omission of "material tacts" and the same could not be a ground for rejection of plant under the provisions of Order 7 Rule 11 or the Code. Besides this, it is also necessary to point out that the rejection or plaint under the aforesaid rules shall not preclude the plantlike from presenting a fresh plaint in terms of Order 7 Rule 13 CPC.. I us from joint reading or Section 9 CPC With Order Rule 11 CPC. it is clear that in order to maintain a suit better the civil court , the cause of action disclosed in a plaint must constitute a suit of civil nature, otherwise the civil court cannot entertain a suit which is not of a civil nature and the suit would be barred by Section 9 CPC and the plaint would also be liable to be rejected under Order 7 Rule 11 CPC.
44. Thus having regard to the aforesaid principles enunciated herein before, it is necessary to recapitulate the tactual matrices of the case from the plaint by reproducing the relevant paragraphs, of the pleadings made in the plaint and the reliefs sought therein (Annexure-1 of the writ petition), for ready reference paragraphs 1 to 10 are reproduced as undine-
"1. That Central Administrative Council or CACAO. Radha Soami Satsang is an unregistered body which is situated at Radha Soami Bah, Agra, which has Radha Soami Trust amongst its members, to conduct the Satsang activities and to preserve Satsang properties as per instructions laid down in preaches and teachings of departed San Sat Guru.
2. I hat the plaintiff is one of the followers and initiate of last Sant Sat Guru Huzur Babuji Maharaj, and at the inner inspiration and bliss or his Guru Babiji Maharaj is tiling this suit for the benefit of the followers ( so called Satsangis) of Babuji Maharaj of Radha Soami faith and for true salvation of Jivas who have joined Radha Soami faith for the very same purpose.
3. That according to the constitution and Bye-laws of the CAC and trust, they are to follow Sant Sat Guru of time being for regulating the conduct or business pertaining to the Radhasoami Satsang and preserve and administer properties of Satsang.
4. That Prasad, Bhog, Arti, Chamamrit, Garlanding of Sant Sat Guru and his Tilak may be distributed to the Satsangs atter sanctification by touch of the alive Guru.
5. That the Guru of above sect has departed and on the sitting place of Guru, a photo of Guru exists.
6. That it is important to mention that after departure of Sant Sat Guru(during interregnum) none can offer Dhoowatti or Agarwatti or prasad/Bhog and should not otter the garland to the Sant Sat Guru idols/photos. The followers can only( reading of departed Guru's preaches) do the Satsang in absence of live Guru in Gurudwara Samadhi's or Bhajan Ghar. Keeping idols/photos in Satsang is against the tenets of Radhasoami faith, also doing any act of decoration putting Jhar-Phanuses (as in palaces) etc. in the places of Satsang mentioned above is considered a act of idol worship which is against the teachings of Radha Soami faith and Satsang and the details of which have also been mentioned in the books of Radha Soami Satsang.
7. That the defendants are continuously violating the law and bye-laws of the CAC and teachings of Guru of Radhasoami faith and they are deliberately using the Bhog/Prasad, (Jarlandmg, Agarwatti. Dhoopwatti, Jharphanus etc. against the constitution and bye-laws of the CAC and teachings of Radhasoami faith just to get them tamed in the society.
8. That the plaintiff several times requested the defendants and other members and followers not to offer Bhog/prasad, Dhoopwatti and Agarwatti, garland etc. but they paid no heed towards request of the plaintiff and they are continuously doing so in violation of the constitution and Bye-laws of CAC and teachings of Radhasoami faith, hence the plaintiff has left with no other alternative except to take shelter of this Hon'ble Court as the sentiments and feelings or the plaintiff and other true followers of Radhasoami faith are being hurt due to said acts of the defendants.
9. That on 4.11.1999 the plaintiff further requested the defendants not to do the aforesaid act against the Constitution. Bye-laws of CAC and teaching of Radhasoami faith but the)' threatened the plaintiff tor dire consequences it the plaintiff interfere in their illegal acts. The defendants are also earning income from trust by doing illegal acts and construction in Soami Bagh and other Satsang places.
10. That thus the atrocities of the defendants are illegal, high handed, against the law. The injury is imminent and persistent. In case " the defendants are no restrained from doing so then the plaintiff as well as the other true followers of the R.S. faith shall certainly suffer irreparable loss and injury which cannot be compensated in terms of money as sole purpose of true Radhasoami faith can only be achieved by true meditation (Surat-Shabd-Abhyas) and not by the aforesaid acts against tenets of Radhasoami faith.
Prayer A. that by a decree of permanent prohibitory injunction the defendants and other persons/followers of Radhasoami faith be restrained from offering Bhog/Prasad, Dhhpwatti. Agarwatti. Putting Jhar-phanus in Satsang places, Garlanding of photos or giving any Phoolmala decoration to the photos, articles used by Sant Sat Guru or violating the Constitution any bye-laws of CAC and Sant Sat Guru teachings in any manner whatsoever."
45. Thus from bare reading of the plaint, it is dear that in the plaint: it has been stated that the Central Administrative Council of Radha Soami Satsang is an unregistered body, which has Radhasoami Trust situated at Radha Soamibagh, Agra. The councils and members are required to conduct Satsang activities and to preserve Satsang properties as per instructions laid down in Preaches and teachings of departed Sant Sat Guru. The plaintiff is one of the followers and initiatee of last Sant Sat Guru Huzur Babuji Maharaj and has filed this suit for the benefits of the followers( so called Satsangis) of Babuji Maharaj of Radhasoami faith. According to the Constitution and Bye-laws of the Central Administrative Committee and trust, they are to follow Sant Sat Guru of time being for regulating the conduct of business pertaining to the Radhasoami Satsang and preserve and the administer properties of Satsang. The Guru of above sect has departed and on the sitting place of Guru a photo of Guru exists. Prasad, Bhog, Arti, Charnamrit, Garlanding of Sant Sat Guru and his Tilak may be distributed to the Satsangis after sanctification by touch of alive Guru. But after departure of Sant Sat Guru (during interregnum) none can offer Dhoopwatti or Agarwatti or Prasad/ Bhog and should not offer the garland to the Sant Sat Guru's idols/photos. The followers can only ( by reading of departed Guru's preaches and teaching do the Satsang in absence of alive Guru in Gurudwara Samadhi's or Bhajan Ghar. Keeping idols/photos in Satsang is against the tenets of Radhasoami faith; doing any act of decoration putting Jhar Phanuses ( as in palaces) etc. in the places of Satsang mentioned herein before is considered as an act of idol worship which is against the tenets and teachings of Radha Soami faith and Satsang and the details of which have also been mentioned in the books of Radha Soami Satsang. It is specifically alleged in the plaint that defendants are continuously violating the constitution and bye-laws of the CAC and teachings of Guru of Radhasoarni faith and they are deliberately using the Bhog/Prasad, Garlanding, Agarwatti, Dhoopwatti, Jharphanus etc. against the constitution and bye-laws of the CAC and tenets in as much as teaching of Radhasoami faith. The plaintiff at several occasions requested the defendants and other members and followers not to offer Bhog/Prasad, Dhoopwatti and Agarwatti, garland etc., but they paid no heed towards request of the piamtiff and they are continuously doing so in violation of the constitution and Bye-laws of CAC and against, teachings and tenents of Kadhasoami faith as a result of which the sentiments and feelings of the plaintiff and other true followers of Kadhasoami faith are being hurt due to said acts of the defendants. It the defendants are not restrained from doing so , then the plaintiff as well as other true followers of Kadhasoami faith shall certainly suffer irreparable loss and injury , which cannot be compensated in terms or money. On the basis of the aforesaid allegations, the relief tor a decree of permanent prohibitory injunction against the defendants and other persons/followers of Kadhasoami faith has been sought tor restraining them from ottering Bhog/Prasad, Uhoopwatti, Agarwatti and putting Jhar-phanus in Satsang places and Garlanding of photos or giving any Phoolmala decoration to the photos of Sant Sat (Juru or violating the Constitution, Bye-laws of CAC and Sant Sat Guru teachings in any manner what-so-ever.
46. Now the questions arise tor consideration before this Court as to whether the acts of defendants complained of by the plaintiff through the plaint is merely a simple question of practice of religious rites or ritual ceremony, which does not aftect any way the religious rights of the piamtiff and other true followers of Kadhasoami faith or such religious practice ot rites or ritual ceremonies are affecting the religious rights of plamtiff on account of tact that it is against the tenets and teachings of Kadiuisoami faith and teaching of last Sant Sat Guru Hujur Babuji Maharaj inasmuch as against the Constitution and Bye-laws of CAC and trust? As to whether the violation of the Constitution and Bye-laws of CAC or trust and teaching of Sant Sat Guru or the acts complained of can be regarded as anti-religious activities by the defendants against the tenets and teaching of Kadhasoami faith and such activities as con lamed of by the plaintiff alleged to have hurt the feelings and sentiments of the piaintiff and other true followers of Kadhasoami faith can be regarded as in violation of any religious/civil rights of the plaintiff entailing any civil consequences or not?
47. These questions have to be answered in the light of proposition derived from the law enunciated herein before. In this connection it is necessary to point out that it is not in dispute that there exists religious denomination or sect in the name and style of Radhasoami faith, as all three necessary conditions regarding religious denomination and sect appears to be prima facie satisfiedby the bare allegations of the plaint. It is also not in dispute that the religious denomination and sect of Radhasoami faith have a Central Administrative Council of Radhasoami Satsang as an unregistered body situated at Radhasoami Bagh, Agra, which has a trust constituted by the last Sant Sat Guru Hujur Babuji Maharaj. for managing and administering the affairs of the Satsang properties and Satsang activities and trust, there is a constitution and bye-laws of CAC and trust. At present there is a period of inter-regnum after departure of last Sant Sat Guru -Hujur Babuji Maharaj, and no subsequent Sat Guru has manifested as yet. The defendants are the members and office bearers of Central Administrative Council. They are obliged to manage and administer the affairs of the properties of Satsang and trust and also responsible to conduct Satsang activities according to the instructions, preaching, teaching of last Sant Sat Guru and Constitution or Bye-laws of CAC and trust according to the tenets of Radhasoami faith, as contained in the Constitution and Bye-laws inasmuch as teaching and books of Radhasoami faith. It is no doubt true the a religion has its basis in a system of belief regarded by those who profess with religion as conducive to their spiritual well being. It is well .settled that the religion is a matter of faith, but it is not necessarily theistic. As indicated earlier there are well known religions in India like Buddhism and Jainism, which do not have any belief in God. The freedom of eligion would include the freedom of practice of ritual ceremonies, which are integral part of religion. Thus in deciding the question as to whether particular religious practice is integral part of religion, the test would be whether it is regarded as such by the community following the religion or not? Of-course this question will have to be decided by the civil court and the findings of the court will be depend on the evidence adduced, as to conscience of the community and tenets of the religion. Therefore, in my considered opinion the acts complained of by the plaintiff in the suit in question is hot merely a question of religious rites and ritual ceremonies, rather it goes to the root of religious faith depending upon the tenets and teaching of faith, which can be determined by the court after appreciating the evidence adduced by the parties as to whether the activities complained of are against the tenets and teaching of Radhasoami faith and also against the Constitution and Bye-laws of CAC and trust or not. If any such practice of defendants are found not as integral part of the religion according to tenets and teaching of Radha Soami faith, rather the activities of the defendants are found against the tenets and teaching of Radhasoami faith, Constitution and Bye-laws of CAC and trust in that eventuality such activities of defendants would also be in violation of fundamental rights of plaintiff guaranteed under Articles 25 or 26 of the Constitution of India consequently such invasion of fundamental rights of .. plaintiff would be an invasion of civil right of the plaintiff and other true followers of the religious sect of Radhasoami faith. Thus the plaintiff or any follower of such religious denomination would have right to complain against such activities by presenting a proper suit before the competent civil court having jurisdiction to try the suit and such suit would come within broader sweep of suit of civil nature and would be fully maintainable before the civil court.
48. The view taken herein above, also finds support from the decision of their Lordship in Privy Council rendered in Sir Seth Hukam Chand's case (Supra) in a slightly different context of right of worship, wherein their Lordship of Privy Council has held that the alleged action of Swetambaris in placing charans of the description in three of the shrines is a wrong of which the Digambaris are entitled to complain and similarly in the case of Ugam Singh's (Supra) the Hon'ble Apex Court has held that from the pleadings 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 placing Chakshus, Dhwaajadand and Kalash according to their tenets or by locking the temple could preclude the Digamberies from worshipping in accordance with their tenets. Admittedly, Digamberies 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 Swetamberies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberis from exercising their right to worship at the temple. In the aforesaid cases the dispute was between the two religious sect of Jain Religion, Digamberies have right to worship according to their own religious tenets and Swetamberies have right to worship according to their own religious tenets. The Hon'ble Privy Council and the Hon'ble Apex Court have held that if the acts of the defendants complained of are against the religious tenets of Digamberies sect, the civil court is competent to decide the issue and the suit would be of civil nature.
49. Thus, in my opinion in the present case the controversy is not merely of religious rites or ritual ceremonies, but it goes to the root of the religious right of the plaintiff affecting his right to practice and to profess his religious faith. The acts of defendants as complained of by the plaintiff are virtually idol worship which is against the tenets and teaching of Radhasoami faith according to the plaintiff, as such the acts complained of are amount to violative of right of religious practice of the plaintiff and other true followers of Radhasoami faith and also against the constitution and bye-laws of CAC and trust and Radhasoami faith. Such acts can be calculated as creating hindrance in religious practice of plaintiff which may also come within broader sweep and spectrum of right of worship of plaintiff-respondent which is not necessarily theistic. Invasion of right of freedom of religion and religious faith of plaintiff by private individuals would amount to infraction or invasion of civil rights or rights of civil nature of plaintiff, if found to be proved in the trial, necessary relief sought for by the plaintiff in the plaint can only be granted by the civil court. The cause of action pleaded in the plaint, in my considered view, constitutes a suit of civil nature and the civil court having jurisdiction to try the suit would be competent to entertain the suit and try the same, as no other ground has been taken against the maintainability of the suit. The submission of the learned counsel for the petitioner that the acts complained of in the plaint, are merely religious rights or ritual ceremonies and do not give rise cause of action of civil nature is wholly misconceived, misplaced and not tenable at all and is liable to be rejected. In this regard it is also necessary to point out that it is not the case of petitioner-defendants that the acts complained of are not against the teaching and tenets of faith in question, rather their case is that the acts complained of do not invade any civil right of plaintiff and do not entails civil consequences which is wholly misconceived and is liable to be rejected.
50. The submission of the learned counsel for the petitioner that the plaint is liable to be rejected on the ground that the allegations contained in it does not furnish any material particulars pertaining to alleged violation of any particular provisions of the Constitution or Bye-laws of CAC and trust, is\ wholly misconceived, misplaced and untenable for the simple reason that the alleged omissions in furnishing such particulars cannot be a ground for rejection of the plaint under Order 7 Rule 11 CPC, as it is the omission in the material facts in disclosing cause of action makes the cause of action incomplete and bad and not the omission of such particulars. Contrary to it in my considered opinion the facts alleged in the plaint have disclosed the complete cause of action on the basis of which the plaintiff has sought the reliefs in the plaint. The alleged violation of Constitution and Bye-laws of CAC and trust by the defendants in conducting the business of administration of affairs of properties of trust and administration of affairs of Satsang and Satsang's properties inasmuch as the alleged activities of the defendants against the tenets of Radhasoami faith and teaching of Sant Sat Guru , in my considered view , entails civil consequences and the suit filed by the plaintiff-respondent would be a suit of civil nature. The statement made in the plaint does not suffer from the vice of non-disclosure of cause of action furnishing a ground for rejection of plaint under Order 7 Rule 11 CPC. Thus aforesaid objection against maintainability of suit is wholly without any substance and liable to be rejected.
51. Both the courts below have concurrently held that on the basis of the allegations made in the plaint, the cause of action disclosed in the plaint constitutes a suit of civil nature cognizable by the civil court, thus civil suit is maintainable. I could not find any illegality in the findings of both the courts below calling for interference by this Court under Article 226 of Constitution of India. Accordingly, the same deserves to be maintained.
52. In view of the foregoing discussions and observations, the writ petition is devoid of any merits and is liable to be dismissed. Accprdihgly, the same is dismissed.
53. There shall be no order as to costs.