Borhras and reform
Udaipur masjid case
The Udaipur masjid case has been pivotal for reformists to keep their fight alive and relevant against the Kothar. Here's a brief history and background of the landmark case.
A brief history
Amongst various Bohra Mosques in Udaipur, four of them are located in Bohri Mohallas. They are named:
- Moiyadpura Masjid
- Vajihpura Masjid
- Rasoolpura Masjid
- Khanpura Masjid
They are named after the mohallas where they are located. Ever since their constructions and Waqf the management and control have been in the hands of 'Panch Bohras'. This fact has been well documented and produced as evidence in various court cases even during the reign of erstwhile Maharanas of Mewar, the ruling families of Mewar state.
After the mass revolt and emergence of the Bohra Reform Movement in early seventies, the management and control of these mosques have always been in the hands of Panch Bohras having allegiance with the Movement. As a result the orthodox faction stopped offering payers in these mosques and made separate arrangements in private premises. The reformists appointed their own Pesh Imams and have till today continued offering prayers and conducting other religious ceremonies in these mosques.
In early eighties two separate but identical suits were instituted by the orthodox group asking for handing over of the mosques to them so that all religious and social activities could be conducted with Raza of the local Amil appointed by the Kothar. Interestingly in one of the suit, Sayedna Mohmed Burhanuddin Saheb (T.U.S.) is the plaintiff. Along with the main suits, applications were simultaneously made for the issuing of permanent injunctions in their favour resulting in virtual eviction of the reformists from the management and control of these mosques as well as restraining them from carrying out all religious and social functions now being conducted by Pesh Imams appointed by the reformists.
The cases relating to applications for Injunctions have been fought up to the Honorable High Court of Rajasthan at Jodhpur and as a result of these legal battles the status as of now is:
- Namaz and other religious functions in Moiyadpura mosque is under the Pesh Imam nominated by Kothar where the reformists are also entitled to take part without any restrictions. The mosque continues to be in the custody of Court Receiver appointed by local government administration.
- Status quo to remain in force as regardswith the other three mosques i.e. the management and control of these mosques remain with Panch Bohras having allegiance with Bohra Reform Movement.
- Original suits are still pending in the lower court at Udaipur and appeals filed in the Hon. Supreme Court of India (in Matters subsequent to disposal of injunction appeals by Hon. Rajasthan High Court) for disposals.
The Bohra Reformists have since been fighting these legal battles with determination for the last two decades decades despite heavy odds, especially on the finance front.
The original case filed in the Court of Honourable District Judge, Udaipur [Case No53 of 1982(40)]. The extracts from the submissions made by the plaintiffs are placed at Enclosure-1.
Along with the plaint an application was also made for an interim injunction for the relief's prayed. Extract of the relief prayed are placed at Enclosure-2.
The parties submitted their affidavits and further submitted rejoinders and replies to the rejoinders supported by several affidavits. The Learned Judge after hearing the arguments rejected the application for interim injunction on the ground that the Court cannot restore any such position, which did not exist on the date of the suit. In this connection the learned District Judge placed reliance on:
- Ram Chandra Tanwar v Ram Rakh Mal Amechand (AIR 1971 Rajasthan 292)
- Heera v Board of Revenue (1966 RLW 637) and
- Deva v Godar (1970) RLW (UC) 354.
A brief account of other findings of the learned district Judge is placed at Enclosure-3.
Aggrieved against the order of the learned district Judge Udaipur, the Plaintiffs filed an appeal in the High Court of Judicature for Rajasthan. The salient Points are as follows:
- Case- Civil Misc Appeal No. 5 of 1984, against the order of shri Ramesh Chandra Sood, District Judge Udaipur dated31-10-1983 in civil case No. 53 of 1982(40)- Gulam Abbas & others v Iqbal & others.
- Date Of Hearing: 22 May 1984.
- In the Court Of Hon. Justice M. C. Jain.
- Lawyers for the Appellants: Dr. L. M. Singhvi Senior Advocate Assisted by sarva shri V.H. Muchhala, M.I. Sayyed, N.P. Gupta Advocates.
- Lawyers for the respondents: Shri K. K. Venu Gopal, Senior Advocate Assisted by sarva shri L.B. Mehta, I.l. Gobhil, Yahya Ali and Miss Shushma Helen Advocates.
- The Court, after consideration fixed following as the Essential Ingredients to be examined in detail
- Whether a strong case exists in favour of the Plaintiffs
- Whether the Plaintiffs will suffer irreparable injury in case the interim relief is refused And
- Whether the Balance of Convenience lies in their (The Plaintiffs) Favour.
Operating Part of the Judgment (in a summarized and condensed form for the readers) is enumerated below:
- Having heard the parties concerned and satisfied that all the essential ingredients for grant of temporary injunction exist in favour of the Plaintiffs, the learned Judge, Justice M.C. Jain passed order, which, interalia, is being briefly outlined in succeeding paragraphs:
- The matter was not examined by the learned district Judge of Udaipur in its correct perspectives. The exercise of judicial discretion in that situation is vitiated and judicial discretion has not been properly exercised and the rule propounded by him, though undisputable, has no application to the facts of the present case.
- The present case is a fit case for Grant of Interim Relief prayed for in respect of four suit Mosques.
- Accepting the suggestion made by Dr. Singhvi and considering the better relations between the parties and the state of affairs going on for the past eleven years, it would be just and proper to make workable interim arrangements in the form of grant of interim relief in respect of MOIYYAD PURA Mosque.
- Accordingly the Appeal is Partly Allowed. And the application of the plaintiffs for the grant of temporary injunction is Allowed In Part.
- Before parting with the order, the honorable judge impressed upon the trial court that whatever views, opinions and findings have been recorded herein would not in any way be considered binding on the trial court while deciding the suit on merit. The opinions expressed are the opinions, while considering the application for grant of temporary injunction.
- It would be in the interest of the parties that a direction may be issued to the trial court to expedite the trial.
- On assurance from Mr. Venu Gopal that the defendants will not seek adjournments and will help the court in the disposal of the suit within six months, the trial court is directed to dispose off suit within a period of six months as far as possible.
Relief Prayed for Permanent Injunction by the Plaintiffs (in brief):
- The Defendants and any person on their behalf be Restrained by permanent order and injunction of the Hon'ble Court from preventing the plaintiffs from entering the suit mosques, or offering or participating in the Imamat or Jamaat Namaaz/prayers led by the Pesh Imam appointed or nominated or under the authority and /or permission and/or under the auspices of the Dai-Ul-Mutlaq(DUM) for the time being and/or attending or participating in any Vaiz, Majlis or other religious functions, gatherings and ceremonies held with the permission of and/or under the authority and/or under the auspices of the DUM for the time being and / or from interfering and/or disturbing in any manner in the activities mentioned above.
- That the defendants and/or any person on their behalves be restrained by a permanent order and injunction by the Honorable Court from holding their separate Imamat or Jamaat Namaaz or holding Vaiz, Majlis and any other religious functions, ceremonies or gatherings in the suit Mosques.
- That pending the hearing and final disposal of the suit, the defendants and any person or persons on their behalf be restrained by temporary order and injunction of this honorable Court from taking any action/actions mentioned above (i.e. preventing, interfering and disturbing in any manner the authorized activities of the Plaintiffs).
- For ad-interim relief in terms of 1, 2 and 3 above.
- That the defendants and others on their behalves may be ordered to pay the plaintiffs their cost of the suit, and
- That the plaintiffs may have such further and other reliefs as the nature and circumstances may require.
The plaint was drawn by shri Y. M. Muchhala, Advocate, settled by shri R.J. Joshi Advocate and verified by Gulam Abbas s/o Akbar Ali Bhalam wala.
Summary of Submissions made by the plaintiffs in Original suit and argued upon:
- Evolution of the denomination of Dawoodi Bohra as a sub-sect of Shia Muslim with a chain of intercession with the Almighty as follows: Dai……Imam…….The Holy Prophet……..Allah
- The one who is inititiated into the fold has to give misaq to the Dai- Ul- Mutlaq (DUM)
- The DUM is not merely a spiritual leader and religious head of the Dawooodi Bohras but is also the sole trustee of the property of the Dawoodi bohra community (DBC) and the sole right of management and control thereof is wasted in the DUM. Among the property of the DBC at Udaipur is the four suit mosques namely, Moiyyadpura; Vazeeehpura; Rasoolpura and Khanpura Mosques.
- At Udaipur the DUM had from time to itme appointed Amils who have the authority and permission to lead prayers, other religious and social functions and general control and management of the properties of the DBC.
- In February 73, a section of the DBC at Udaipur, including the defendants challenged and/or rebelled against the DUM styling themselves as Bohra Youth Association (BYA) and subsequently formed an organization known as Dawoodi Bohra Jamat Udaipur (herein after will be refereed to as the defendants or the separated group).
- The members of the separated group have been unauthorisedly and wrong fully holding prayers, all religious and social functions in the suit mosques.
- The separated group indulged in vilification of H.H Sayyedna Mohmmad Burhanuddin Saheb, the 52nd DUM with a view to hurt the religious susceptibilities and outraged the religious feelings of the loyal followers of the DUM(herein after refereed to as the Plaintiffs)
- The separated group at no time has held any Imamat or Jammat NAmaz in the suit mosques.
- It is an article of faith of the DBC that in any mosques vesting in the DUM, the Imamat or the Jammat Namaz can be offered or said by the Pesh Imam appointed or nominated by DUM.and that no other religious function and/or gathering can be held without the permission of the DUM or his representative for the time being at a given centre/place.
- The separated group wrongfully interfered with the plaintiff's right to offer Imamat or Jmmat Namaz lead by an authorized Pesh Imam in the suit mosques.
- The defendants wrongfully disturbed the said prayers and Vaiz, Majalis and other gatherings conducted by the authorized functionary of the DUM in the suit mosques.
- The defendants resorted to violence, there upon, with a view to maintain law and order, the DUM directed his followers to offer the prayers and conduct other religious and social activities at two private places namely the places of Sabunwala and Rassawala.
- Accordingly as per the directives, all the prayers and religious functions were held at these private places. The owners of the places then notified that their places were not available for the aforesaid functions.
- And when the plaintiffs wanted to offer their prayers etc in the suit mosques, the defendants have interfered with their access/benefit and use of the suit mosques for all religious activities in accordance with their religious tenets, faith and beliefs for witch they (the defendants) have no right.
- The loyal followers there upon instituted this suit and prayed that the defendants be restrained from;
- preventing the loyal followers from entering the said mosques for offering/participating in Imamat or Jmaat Namaz and or attending or participating in any Vaiz Majalis or other religious function, gatherings and ceremonies held with the permission and authorization of the DUM and under his auspices.
- Interfering/disturbing in any manner in the aforesaid activities at (a) above.
- Holding their separate Imamat or Jamat Namaz and other religious and social functions in the suit mosques.
- The plaintiffs also prayed for ad-interim relief.
- And along with the plaint, an application for a temporary injunction was also presented for the said interim relief 0l>
Submission from the Defendants (in brief)
- The court has no jurisdiction to try the present suit
- The Right to offer Namaaz in a mosque is a personal right(as against civil right)
- The defendants have been in exclusive possetion of the suit mosques for the past 9 years which makes the suit barred by time limitation
- The DUM is a trustee of the suit mosques but is not a party to the suit. The suit is thus not maintainable
- The Pesh Imams are appointed by "Ahl-e-Mohalla" and for this no Raza is required
- The evolution of the Dawoodi Bohra sect and the position of the present incumbent as the DUM are admitted
- Misaq was never a religious doctrine or tenet.
- Raza, Misaq and Baraat are deadly weapons in the hands of priestly class as a means of suppression. This is the cause of the Reform Movement
- The defendants were placed under the curse of Barrat. As a result of this the Plaintiffs left the suit mosques. And not because of alleged violence on the part of defendants
- The DUM is the trustee in "Ideal Sense". He is not the sole trusty of the Bohra property in real sense
- The local 'Panch Bohrans" enjoy autonomy in the management of the properties and they are the one receiving demands for contribution u/s 46 of the wakf act 1954
- The DUM or his Amil never managed the affairs of the mosques
- It is vehemently denied that Raza, Misaq, Authorization for religious functions and ceremonies are believed as an article of faith
- The defendants never ever either prevented or interfered with or disturbed the plaintiff's form entering the suit mosques and participating in any religious function or ceremony. In fact they(the Plaintiffs) walked out because the defendants and the then Pesh Imams were under the curse of Baraat
- No cause of action has arisen in favor of the Plaintiffs
The above were the submissions in reply to the submissions made by the plaintiffs.
A brief account of the findings of the learned District Judge of Udaipur Justice Ramesh Chandra Sood. The learned District Judge of Udaipur, after hearing the parties concerned rejected the application for granting temporary injunction sought on the ground mentioned earlier. However, he found that:
- The DUM is the trustee of the property of the Dawoodi Bohra Community (DBC) in the real sense.
- The DUM is entitled to manage the property of DBC including the four suit Mosques.
- The Pesh Imam appointed or nominated or under his authority have the right to lead Imamat/Jamaat Namaaz in the four Mosques
- The right in respect of offering prayers is a Civil Right and for enforcement of such a Right, the suit is maintainable.
- The suit is within limitation as there was continuing wrong with respect to the Plaintiffs' Right.
- The objection as to filing the suit in the representative capacity was negatived and the suit was thus maintainable even though the DUM was not a party.
- There was no waiver on the part of the plaintiffs (for the delay).
- The plaintiffs would suffer irreparable injuries, when they are deprived of their Right to offer prayers.
- The balance of convenience is also in favour of the plaintiffs as the private places were not available for the congregational prayers.
List of Sources upon which Reliance was made (Judicial decisions, Books and Treatises etc):
- Advocate General of Bombay v Ysuf Ali and others (AIR 1921 Bombay338)
- Hasanali & others v Mansoor ali & others(AIR 1948 PC66)
- Sardar Sayedna Taher Saifuddin sahib v State of Bombay (AIR 1962 S.C. 853 )
- Khalil Ahmed and others v Israfil and oters ( AIR 1916 Patna87)
- Mohmed Wasi & others v Bachchan sahib & others ( AIR 1953 allahbad 68 )
- Rifat Ali Khan & others v Ali Mian & others