PITCHE TAMBY et al. v. CASSIM MARIKAR et al

035-NLR-NLR-V-18-PITCHE-TAMBY-et-al.-v.-CASSIM-MARIKAR-et-al.pdf


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Present: Wood Benton C.J. and Ennis J.PITCHE TAMBY et al. v. CASSIM MARIKAR et al.
197—D. 0. Puttalam, 2,356,
Controversies between rivalreligious seats astopoints ofdoctrine or
ceremonial—Power ofCourt to interfere—Aotion againsttrustees
of a mosque to restrain them by injunction from allowing a pagodaprocession in mosque premises.
No secular tribunal will take cognisance of, or adjudicate upon,controversies between rival religious sectsasto pointsofdoctrine
or ceremonial where nothing else is at issue.
No secular tribunal will refuse to take cognisance of, and to adjudicateupon, suchcontroversies where civilrights areat stake, or
hesitate, in that event,to consider andtopronounceanopinion
upon what would otherwise be purely ecclesiastical questions.
The evidenceinthis caseshowed that pagodaprocessions have
been in vogueinconnectionwith the mosque atPuttalam for a
period extending far beyond living memory; that the plaintiffs andthe defendantsintheir timehave taken part init. with all its
attendant ceremonies on numerous occasions; and that until withina quite recent period it has never been considered as involvingeither a breach of Muhammadan law, or any hindrance or obstructionto theprayers of the faithful. The plaintiffs* contention *was,
inter aliat that during recent years there has been growing up amongthe Muhammadans in Puttalam who frequent this mosque a beliefthat the ceremony itself was a direct violation of the preceptsof the Soran and the sacred commentators, and that in thesecircumstancesits continuance was anoutrage totheir religious
feelings. They prayed for an injunction against the trustees of themosque to restrain them from allowing a pagoda from being housedin a certain building, and from allowing tbe pagoda procession frompassing through a covered way.
The Supreme Court refused to grant the injunction, as no civilright was involved in this case.
^pHE facts appear from the judgment.
Bawa, K.C* (with him Drieberg and Hoyley), for the plaintiffs,appellants.—The location of the pagoda within the mosque premisesand the noisy processions over the verandah, which is part of themosque, are a breach of the Muhammadan law, and is a hindranceto the prayers of the congregation. The fact that the plaintiffshave tolerated this state of things for so many years is not a bar tothis action. No one can acquire a prescriptive right to commit anuisance. Forrest v. Leefe;l see also (1893) 8 Ch. 437.
1*14.
* (1910) 13 N. L. R. 119.
1414.
PitcheWamby v.CaetimMarikar
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The procession causes defilement of the mosque, and worshipperscannot go from the tank room to the mosque without being polluted.The Koran makes no mention of pagodas. That shows that thepagoda procession has no religious sanction. On the question ofpollution counsel cited Vandcnberg, vol. 1., pp. 128, 22, 139, 140;Hamilton*8 Hedyya xxxvi; Wilson Digest of Anglo-MuhammadanLaw 368, 372; 12 Allahabad 494.
Courts of law will interfere where a right of property is invaded.The second defendant committed a breach of trust, and the Courtscan therefore’ interfere. If the plaintiffs had been defendants, andhad thrown the pagoda out, will not the Courts intervene in sucha Case? See 3 AUahabad 636, 3 Bom. 27, 30 Madras 15, 7 Bom.323, 7 Allahabad 178, 13 Allahabad 419, 18 Cat. 448, Marshall'sJudgments, 656, Creasy 155, Bamanathan (1863-66) 240, 1 8. C. E.354, iJn. L. B. 351, 16 N. 'L. B. 94, 2 C. L. li. 22, 5 N. L. R. 353.Where it is a purely ecclesiastical question the Courts will notintervene, as in 5 Bom. 80, ^ 20 Bom. 784, 28 Mad. 23. Counselfurther cited Mulla’s Principles of Muhammadan Law, p. 11,s. 25; 25 CaL 18; 11 Moore's hulian Appeals 551; Amir AH'*Muhammadan Law, vol. 1., pp 0, 10, 18, 19, 22, 23, 24; 15 N. L. R.316.
Defendants have not proved any custom* which establishes theright to take the pagoda in procession over the. mosque premises.To establish custom the defendants must show that the processionis allowed in other mosques as well. It is not enough to show thatthe procession was tolerated in this mosque for several years.
Counsel argued on the facts.
A. St. V. Jayewardene (with him Bartholomeusz), for the firstdefendant, respondent (first trustee).—The first defendant was nota party to the acts complained of by the plaintiffs.
M. de Saratn (with him Elliott, Samarawickrame, and (*. Z. H.Fernando), for the second defendant, respondent, not called upon.
Cur. adv. vtdt.
October 2, 1914. Wood Bbxton C.J.—
The learned District Judge has fully and correctly stated theeffect of the pleadings and the issues on which the parties went-totrial in this case, and there is no need to repeat what he has said.It is, in my opinion, unnecessary to consider the questions whetherthe action is a bona fide one or not, and whether the pagoda ceremony,which forms its subject-matter, is or is not in accordance with theprinciples of Muhammadan law. Two propositions of law, as towhich there is no controversy, are involved in this appeal. In thefirst place, no secular tribunal will take cognizance of, or adjudicateupon, controversies between rival religious sects as to points ofdoctrine or ceremonial where nothing else is at issue. In the second
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place, no secular tribunal will refuse to take cognizance of, and to 1914.adjudicate upon, such controversies where civil rights are at stake, vtfoonor hesitate, in that event, to consider and to pronounce an opinion Rbntok CJ.
upon what would otherwise be purely ecclesiatical questions.
These two propositions are clearly established by the Indian andlocal cases cited in the course of the argument. (Jawahra v.
Akbar Husain.1 Jangu v. Alumnd Ullah,2 Venkaiachalapati v.Subbarayadu3 Faeal Karim v. Mania Baksh* Vasudcv v. Vamnaji,*
Subbaraya Mudaliar v. Vedantachariar,6 Aysa Oemma n. SagoAbdul LebbeJ) Nor are they confined to questions of Hindu orMuhammadan law. They are equally applicable* to other religioussystems (see Free Church of Scotland, General Assembly of, v.
Overtouna). The application of these principles to the facts ofthe present case does not, to my mind, present any seriousdifficulty. I entirely agree with the view taken of themby the learned District Judge. The evidence shows that thepagoda procession has been in voguC in connection with themosque at Puttalam for n period extending far beyond livingmemory; that the plaintiffs and the defendants in their time havetaken part in it, with all its attendant ceremonies, on numerous
occasions; and that until within, a quite recent period it has never ^been considered as involving either a breach of Muhammadan lawor any hindrance or obstruction to the prayers of the faithful. I amassuming, for the purpose of this judgment, that the plaintiffs andtiie first defendant, who associates himself with them in their presentopposition to the pagoda ceremony, are acting in good faith. Theircontention is that during recent years there has been growing upamong the Muhammadans in Puttalam who frequent this mosquea belief that the ceremony itself is a direct violation of the preceptsof the Koran and the sacred commentators, and that in thesecircumstances its continuance is an outrage to their religiousfeelings. They object to the ceremony, because the noise andclamour which accompany it disturb the prayers of worshippersin the mosque, because .the pagoda is housed in a room which is anintegral part of the mosque premises, and because the process ofremoving it from and returning it* into that room for the purposesof the ceremony—a process in which persons who are not Muham-madans take pkrt—defiles the front verandah of the mosque, which,like the pagoda room itself, is part of the sacred edifice. The seconddefendant, who is one of the trustees of the mosque, maintains, onthe other hand, that the pagoda ceremony is in no sense repugnantto Muhammadan law; that, it does not disturb the prayers ofworshippers; that neither the pagoda nor the verandah, to whichthe plaintiffs and the first defendant refer, forms 'part of the mosque
Pitch*Tamby v.Cas&iinMarikar
*asm /. l. r. 7 ail m.
(1889) /. L. R. 13 All, 419.
(1889) 7. L. R. Mad. 293.
(1891) I. As. R. Cal. 44ft.
s (1880) I. 1. R. Bam. 80..« (1904) I. L. R. Had. 23.
(1863-08) Ram. 240.
(1904) A. C. 515.
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1914.
Wood
Renton C.J.
PitcheTamby v.GtttetmMarikttr
proper; and that steps are taken, while the pagoda ceremony is beingcarried out, which prevent worshippers who have performed theirablutions in the washing place outside the mosque from contractingany defilement in the course of their passage into the mosque itself.
The learned District Judge has held upon the evidence, and I amdisposed to agree with his finding on the point, that neither thepagoda room nor the verandah in question has been shown to formpart of the mosque proper. But, apart from considerations of thatkind, the plaintiffs have failed entirely to show that any civil rightis involved in the controversy* The second de&mdant in his answerclaims Rb. 5,000 damages from the plaintiffs and the first defendanton the ground of expenses incurred by him in connection with theproposed pagoda procession in March, 1918, which they had inducedthe Assistant Government Agent to refuse to license. But nothingwas said as to that claim at the hearing of the appeal, and jit is not apoint of which the plaintiffs and the first defendant could make anyuse for the purpose of establishing the existence of a civil right inthemselves. They do not say that they were being disturbed in theexercise of any office in connection with the mosque, or that thecontinuance of the pagoda ceremony is involving them in the loss ofany emoluments. It was'argued before us that the evidence wassufficient to establish a nuisance which would entitle a secularCourt to interfere. It is quite true that there are incidental state*ments in the evidence of* various witnesses called in-support of theaction to the effect that the noise accompanying the processiondisturbs worshippers who are praying inside the mosque. Butequally good evidence to the contrary was adduced on behalf of thesecond defendant. It would require much stronger evidence thananything that I can find in the record to justify us in holding that apractice, in which the Muhammadans of Puttalam have acquiescedfor several centuries, and which has been participated in by theplaintiffs and the first defendant for a long period, without anysuggestion that it interfered with religious devotions, has suddenlydeveloped into’ a nuisance which the law ought to abate. The wholetrend of the evidence of the plaintiffs and of the first defendantshows that their real objection to the pagoda ceremony is basedupon the assumption that it involves sacrilege. I may refer insupport of this statement to the following passages:—
** This noise/' says Nalla Ibrahim, " of tom*toms and stickdancers, and the fact of people of strange religionsentering without washing their feet, are all objectionableand wrong; such people defile the mosque—many of usare- anxious that, these practices be stopped as contratyto our religion. The Alims preach that it is bad."
Again—
411 object, " says Mohamadu Cassim Marikar, " to these pagodaprocessions traversing this verandah, as they interfere
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with .the worship. Stick-dancing, tom-tommg, cracker- 1914.firing, and other enjoyments take place in this verandah Wooj)as well as in the compound; non-Muhammadans take Rbsitoh C. J.
part in these ceremonies and enter the mosque withunwashed feet; this is very improper and against therules of our religion. The Koran so lays it down.”
PitcJ*Tamby v.OammMarikar
There are numerous other passages to the same effect. This caseappears to me to be directly covered by the judgment of Mr. JusticeNorris in No. 12,348, Kalutara, June 28, 1835.1
The plaintiffs in that case were the priests and officials of a mosqueat Marandahn, in the village of Barberyn. They sought to recoverdamages from the defendants, the priests of a rival mosque in thesame village, for having celebrated for several years certain festivals,which it was contended that only priests of the Marandahn Mosquehad the right to conduct, and having thereby diverted the offeringsof devotees to the defendants* mosque. The learned Judge con-sidered the case, because it involved a pecuniary claim, which,however, he held, in the event to be unfounded, as the offeringswere voluntary. But he clearly indicated that, had it not been forthe pecuniary claim, he would not have entertained the case at all.
“ Had the question,” he says ” simply related to the plaintiffs*right to celebrate .these festivals at their own mosque,without molestation or interruption, there could havebeen no room for doubt upon the subject; for theevidence is abundantly sufficient to show that, fromtime immemorial, the Marandahn Mosque has enjoyedthis privilege, and we are bound by law to protect allclasses of the people in the free and undisturbed exerciseof their religious rites and ceremonies. Again, had theinquiry been of a purely ecclesiastical nature, as, for,example, whether these festivals could, consistently withthe Muhammadan religion and the precepts of the Koran,be celebrated in more .than one consecrated mosque ofthe same village, and whether the favoured mosque atBarberyn was not that of the plaintiffs, the evidencemight, perhaps, be considered sufficient (supposing itwere the business—but it certainly is not—of This or ofany court of justice to decide such matters) to warranta decision of the former question in the negative, and ofthe latter in the affirmative. These, however, arequestions which we are neither called upon, nor willconsent, to decide. It is very possible that the Muham-madan worship may have been scandalized, and thereligious veneration due to the ancient mosque atMarandahn abated, . by the irregular practices andarrogant assumption of tbe priests officiating at the rival1 Marshall'* Judgments, 657.
13
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Woon
Renton’ C’.J.
Pitch pTambjf r.('nssimMarikar
mosque. But the law does not recognize these as civilinjuries for which compensation can be claimed in acourt of- justice. These are matters purely ecclesias-tical, and a remedy for the abuses complained of, ifobtainable at all; must be sought for in ecclesiasticalcensure or penance/*
I would dismiss the appeal with costs.
Ennis J.—
The cases cited during the argument show that it is a firmlyestablished principle that secular courts of law will protect allreligions but interfere in none. In pursuance of this principleCourts decline to go into a purely religious question unless somecivil right is involved. A worshipper in a mosque which is opento all Muhammadans is entitled to perform his worship with theceremonies which prevail in his sect, provided he does not therebydisturb the other worshippers. N
In the present case it appears that the carrying of a pagoda inprocession has been for centuries prevalent in Ceylon among certainMuhammadans, but in recent years a feeling has been growing thatit is idolatrous, and therefore contrary to the principles of the Islamiclaw. The defendants are the trustees of a mosque which is opento all Muhammadans, whatever their sect. The plaintiffs and thehist defendant have embraced the new opinion, and seek an injunc-tion against the trustees of the mosque to restrain them fromallowing a pagoda from being housed in a building, which they assert-is part of th* .mosque, and from allowing the pagoda procession frompassing through a covered way, which they also assert is part of themosque, on the ground that its presence in the mosque premises andcarrying it through the mosque premises with music and clamour is(I) repugnant to the principles of the Islamic faith; (2) interfereswith the devotions of the plaintiffs; (3) is a misuse of the mosque;(4) is a nuisance to the plaintiffs; and (5) is calculated to deterorthodox Muhammadans from worshipping in the mosque and fromsupporting and maintaining it.
The witnesses seem to concur that if the pagoda procession passedthrough the mosque it would be improper, and it was urged that thepassage way through which it passed was part of the mosque. Thelearned District Judge has found to the contrary, and in this I agreewith him. It is in evidence that the covered way is “ rnadapam/'or open court. The pagoda room was in this court as far back as.1353, as shown by the document 2 D 23, where the ridge wall, thepagoda room, is described as on the southern side wall of the mosque.When the inosque is full, this open court is used by the worshipperswho cannot find room in the mosque. This does not, in my opinion,make the covered way part of the mosque.
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I am unable to see in what way any civil light is involved in thiscase. The only question then remaining i$ whether the pagodaprocession is a nuisance. The evidence as .to this is extremelyweak and contradictory, but the main ground for considering it anuisance appears to be that it is against the rules of the Mutism*madan religion, and this is a purely religious question, which itwould not be proper for a secular court to consider.
I would dismiss the appeal with costs.
Appeal dismissed^
1914.Knnis .!.
Pitot#
Tttmbtf v.CastitnJitnrikar