Abdul Gaffoor Hadjiar Et Al. V. Ahamadu Lebbe Marikar

1931  Present: Lyall Grant and Brieberg JJ.

ABDUL GAFFOOR HADJIAR et al. v. AHAMADU LEBBE
MARIKAR et al.

367-8-D. C. Colombo, 34,834

Action-Trustees of mosque-Appointment of priests-Meeting of congregation -Exclusion of electors-Declaration that the proceedings are irregular Civil right-Maradana Mosque Ordinance. No. 22 of 1924.

By Ordinance No. 22 of 1924 meetings of the congregation of the Maradana Mosque have to be called by the Secretary of the Board of Trustees on the request of the Board or the Executive Committee or of fifty members of the congregation. The control of the priests is vested in the Executive Committee, who are given, inter alia, the power to fill any vacancy caused among the priests, subject to the approval or otherwise of the congregation. A chartered accountant to audit the half-yearly balance sheet has to be selected by the congregation. Certain members of the Executive Committee acting in concert excluded from a meeting held for submitting for approval the appointment of two priests and for appointing an auditor, a large number of the congregation who had not registered themselves, registration not being a test of membership under the Ordinance.

Held, that action lay against the members of the Executive Committee who required the Secretary of the Board of Trustees to call the meeting. and the Secretary of the Board of Trustees, at the suit of the plaintiffs as members of the congregation, for a declaration that the meeting was irregular and the proceedings void.

A claim by the congregation to appoint a priest of their choice is not a matter involving any question of religious rites or practice.

The right of the congregation to select a chartered accountant to audit the accounts of the mosque funds is a civil right.

THE plaintiffs instituted this action against the first to fifteenth defendants for a declaration that a meeting of the congregation of the Maradana Mosque held on August 25, 1929, was irregularly held, that it was null and void, and that the resolutions passed there were not duly passed, and they asked that the resolutions be expunged from the minute book. The plaintiffs also prayed that the defendants be directed to submit a half-yearly balance sheet. The plaintiffs were members of the Board of Trustees of the mosque, and the defendants, with the exception of the second defendant, who is the Secretary of the Board of Trustees, are members of the Executive Committee. It would appear that on the resignation of a priest of the mosque, the Executive Committee on May 30 appointed two others in his place, but no action was taken to obtain the approval of the congregation, until July 18, when the Executive Committee resolved to call a meeting for the purpose. The plaintiffs' case was that the defendants wrongfully excluded from the meeting a large number of the congregation by limiting the meeting to those who had registered themselves as members of the congregation in compliance

with a notice issued by the Committee. They said that that was illegal and not bona fide and was a dishonest device to exclude many members of the congregation from the meeting. The learned District Judge gave judgment for the plaintiffs holding that the action of the defendants in requiring registration as a qualification for attending the meeting was unlawful.

H. V. Perera (with him Ismail and Mahroof), for first to sixth and fifteenth defendants, appellants.-The District Court has jurisdiction only where a plaintiff asserts he has a civil right, e.g., a right of property. As to distinction between civil and religious rights see Marshall's Judgments, (1893), p. 656, as. 7, 8. A right to vote in the deliberations of a body of people is not a civil right.

A civil right and an infringement of it are necessary ingredients of a civil action. In 1 S. C. R. 354, action lay for a declaration that a priest of a

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