JUDGMENT Amitav Banerji, J.
1. This is a second appeal by one of the defendants in the suit.
2. The plaintiffs Nasir Beg, Mirza Basir Beg, and Nanney Khan instituted a suit for perpetual injunction to restrain the defendants and other Muslims of the city of Mathura who do not belong to Ahele Hadis sect from interfering with the rights of the plaintiffs in offering 'Namaz' by reciting the word 'Aameen' loudly, after the recital of Alhumd by the Imam during the prayer in Shabina Masjid or in any other mosque in the district of Mathura. The suit was filed in a representative capacity under Order 1, Rule 8 C. P. C. The suit was decreed with costs against the contesting defendants and other Muslims belonging to Hanafi sect. An appeal was filed by the defendants 1, 2, 4 and 5. The lower Appellate Court was of the opinion that the appeal was liable to be dismissed except that the decree should be modified only to the extent that the defendants and other Mohammadans of the Hanafi sect should be restrained from obstructing the plaintiffs from offering 'Namaz' and reciting the word 'Aameen loudly in Shabina Masjid and in any other mosque in the district of Mathura where the plaintiffs could offer the 'Namaz' by virtue of their being Mohammadans.
3. In this appeal Mr. Mohd. Yaqub Siddiqi contended that the suit filed by the plaintiffs was not maintainable and the approach of the lower Appellate Court was erroneous. He further contended that the court below erred in granting the relief of permanent injunction against the defendants not only for Shabina mosque but hundreds of mosques in Mathura district in respect of which there is no relief. He further contended that on the question whether the plaintiffs have a right of uttering the word 'Aameen' loudly was contrary to the religious precepts and would amount to an interference with their right of offering 'Namaz' or saying their prayers in the mosque. Learned counsel in support of his contention urged that the Hadis spelt out the practice which had been practised by the Musalmans and which found favour with the authors of acknowledged Islamic religious books. I have heard Mr. Tanardan Sahai learned counsel for the plaintiff-respondents who cited three decisions of the Full Benches of this Court where the opinion of Mahmood, J. was relied upon.
4. The point in controversey is not complicated. The point is whether the plaintiffs had a right of saying 'Aameen' loudly at the end of the 'Namaz' at the mosque after the recital of Alhumd by the Imam. The plaintiffs appear to be members of the Shia sect. They claimed that they had a right to say, loudly the word 'Aameen' after the conclusion of the 'Namaz' and the recital of the prayer by the Imam. The defendants are alleged to have interfered with the rights of the plaintiffs in loudly uttering the word Aameen' after the recital of the prayer by the Imam. The plaintiffs claim to be the members of the Ahele-Hadis sect. This sect believes in following the Hadis namely the precepts laid down in the book of Hadis. The Hadis disentitle anyone to utter loudly the word 'Aameen' after the recital of the prayer in the mosque.
The question whether anybody has such a right or not is no longer in the realm of controversy. The point was raised as early as 1882, nearly a hundred years ago before a Bench of five Judges of this Court in the case of Queen Empress v. Ramzan ((1885) ILR 7 All 461). That was a case where Ramzan was being prosecuted for certain acts and conduct on Ms part which amounted to disturbance of a religious gathering. The Full Bench ordered the case to be retried by the Magistrate keeping in view certain directions issued by the Full Bench. Mahmood, J. wrote a dissenting judgment where his Lordship considered the question whether the utterance of the word 'Aameen' aloud in the mosque during the prayers, was permissible. His Lordship took the view that Ramzan in uttering the word 'Aameen' aloud was strictly within his legal rights. The relevant portion of the judgment is in these words.
"A mosque once so consecrated cannot in any case revert to the founder, and every Mohammedan has the legal right to enter it, and perform devotions according to his own tenets so long as the form of worship is in accord with the recognised rules of Mohammadan Ecclesiastical law. The defendants therefore were fully justified by law in entering the mosque in question and in joining the congregation, and they were strictly within their legal rights, according to the orthodox rule of the Mohammadan Ecclesiastical Law, in saying the word 'Amin' aloud."
5. The matter came up for consideration again before a Full Bench of this Court in the case of Ataullah v. Azim Ullah ((1890) ILR 12 All 494). The question of saying 'Aameen' aloud was again the subject-matter of consideration by the Full Bench. Chief Justice Edge observed that a mosque is a place where all Mohammadans are entitled to go and perform their devotions as of right, according to their conscience. He also held that he had no doubt "that a Mohammadan would bring himself within the grasp of the Criminal Law who, not in the bona fide performance of his devotions but mala fide for purposes of disturbing others engaged in their devotions, makes any demonstration, oral or otherwise, in a mosque and disturbance is the result." In this case also Mahamood, J. observed : "As to the question of pronouncing the word 'Aameen' 1 hold that the word 'Aameen' must be said at the end of the prayer ending with Sure-i-Fateha. I hold also that this should be pronounced. I hold also that there is a difference of the exact note in which it should be pronounced and I hold that there is no authority to say at what note of the vocal octave the voice should emanate. There are some who think that the speaking of the word 'Aameen' aloud is required by devotion and feeling and is necessary for their prayers. I hold, therefore, that there is no authority in the Mohammadan Ecclesiastical Law to limit the tone of voice in which the word 'Aameen' is to be pronounced; that so long as the plaintiffs appellants are Muhammadans, as we have found they are, so long they are entitled to enter the mosque and perform the worship and say the word 'Aameen' without anything to restrain their tone or note of the octave. But if the pronouncement of the word 'Aameen' results in the disturbance of peace, that of course will have to be dealt with under the Criminal Law."
6. The matter again came up for consideration before another Full Bench in the rase of Jangu v. Ahmad Ullah ((1891) ILR 13 All 419). This proceeding also arose from a criminal proceeding. Chief Justice Edge reiterated his views which he had taken in the case of Ataullah v. Azimullah (supra). Mahmood, J. also reiterated his views this time illustrating his judgment with quotations from the text of Islamic Law.
7. In view of the above there is now no doubt about the settled law. The point has been settled that a Musalman is entitled to enter a mosque which is dedicated to God and is also entitled to join in the prayers and utter the word 'Aameen' loudly but not with the aim or mala fide intention to disturb the peace of the congregation. In the present case the finding is that the defendants were restraining the plaintiffs from uttering the word 'Aameen' aloud at the end of their prayers in the mosque in question. This finding is a find-ing of fact. The court below was, therefore, justified in decreeing the suit for permanent injunction restraining the defendants. I find no illegality in the judgment and decree of the court below in this respect.
8. The contention that the suit did not lie in civil court has also been negatived in the Full Bench Division of this Court reported in Ataullah v. Azimullah ((1890) ILR 12 All 494) (supra). The court has jurisdiction. It is, therefore, seen that there is a good authority of this Court that the word 'Aameen' could be uttered loudly at the end of the prayer but without disturbing the others. I, therefore, find no merits in this appeal.
9. For the reasons given above the appeal fails and is dismissed but in the circumstances of the case there will be no Order as to costs.