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Court
Judgements
IN
THE HIGH COURT OF JUDICATURE ANDHRA PRADESH; AT HYDERABAD.
(SPECIAL ORIGINAL JURISDICTION) FRIDAY
THE
TWENTYSIXTH
DAY OF
MARCH.
PRESENT THE
HON’BLE
MR. JUSTICE
S .R. NAYAK Between: Anjuman-e-Alavi,
………..Petitioner
AND 1.
Andhra Pradesh State Wakf Board. rep. by Its Chief Executive
Officer, Syed Shah 2. Ibadath Khana-e-Hussaini, Darul Shifa, Rep. By its Secretary of its managing committee, Baquar Ali Khan. …….Respondent. Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue the order or direction more particularly in the nature of a writ of ceritarary directing the Respondent to permit the members of the petitioner’s community. Shia Imamia Ithna-e-Ashri Akhbari to perform the Eid Prayers in congrigation on 29-3-99 and subsequent period led by Pesh-e-Namaz Moulana Syed Riazuddin Hyder Jafri Akhbari and daily obligatory prayers. For
the petitioner: Mr. M.A. Bari, Advocate SRNJ. WRIT PETITION NO. 6162 of 1999. Rule nisi. Sri A.M. Qureshi, standing counsel for Wakf Board to notice for the Respondents. Writ petition was heard finally with the consent of both the parties. The petitioner is an Association of the persons professing the faith of Shia Imamia Ithna Ashari Akhbari and they claim that the members of the petitioner Association have a right to offer prayers in the Second Respondent-Institution. So claiming, the petitioner Association has sought for a direction to the Respondents to permit the members of the Petitioner to offer Eid prayers in the congregation on 29-3-1999 and also subsequent periods led by Pesh-e-Namaz Moulana Syed Riazuddin Hyder Jaffery Akhbari and daily obligatory prayers. The Writ petition is coming up before the court for hearing for admission as lunch motion today. The Court has no time to call upon the other side to file their counter –Affidavits to meet the case of the petitioner. However, I should state, in all fairness, the learned counsel for the Wakf Board had no objection to make some suitable arrangements for the members of the petitioner to visit the Second Respondent and to offer prayers on 29.3.1999. It is also brought to my notice that in similar facts –situation such arrangement was made on earlier occasions. In the result, I dispose of the writ petition directing the first respondent to allot a particular duration of time during which the members of the association led by Pesh-e-Namaz Moulana Syed Riazuddin Hyder Jaffery Akhbari cam visit the Second Respondent institution and to offer Eid prayers in congregation on 29.3.1999. No costs. // TRUE COPY // Sd/- P.VANAKUMARI, ASST.REGISTRAR. Section Officer. To Syed
Shah Burhanuddin Quadri Garu, having its office at Razak Manzil, Opp,
Public Gardens, Nampally, Hyderabad. 2.
The Secretary of its managing Committee, Ibadath Khana-e-Hussaini,
Darush Shifa, Baquer Ali Khan, Panjetan Colony, Darul Shifa, Hyderabad. 3. 2 CD copies. One
CC to Mr. M.A. Bari, Advocate/opuc/ IN THE HIGH COURT OF JUDICATURE: ANDHRA PRADESH AT HYDERABAD. (SPECIAL
ORIGINAL JURISDICTION) FRIDAY
THE TWENTY SIXTH DAY OF MARCH, ONE
THOUSAND NINE HUNDRED AND NINETY NINE. PRESENT THE
HONOURABLE MR. JUSTICE S. R. NAYAK. WRIT
PETITION MISSCELEANOUS PETITION No S.7961 & 7962 OF 1999. BETWEEN Ibadath
Khana-E-Hussaini, DarulShifa, Rep.
by its secretary of its managing committee, Baquar
Ali Khan. ….Petitioner Respondent
No 2 In
both petitions W.P. No 6162 / 1999. AND 1.
Anjuman-e-Alavi,
Shia
Imamiya Ithna-E-Ashari Akhbari,
Rep.
by Syed Waheeduddin Hyder Jafry Akhbari.
S/o
moulana Syed Riazuddin Hyder Jafry Akhbari,
44
years R/o H No 22-3-885 Darul Shifa Hyderabad…
writ petitioner in
W.P. : 6162/99. 2
Andhra Pradesh State Wakf Board, rep. by its Chief Executive
Officer, Syed
Shah Barhanuddin Quadri Garu, having its Office at
Razak
Manzil, opp Public Gardens, Nampally, Hyderabad. Respondent No 1 in W.P. :6162/99 in both W.P.M.P. No : 7961 / 1999: Petition under order 9 rule 13 C.P.C., praying that in the circumstances stated in the affidavit filed therewith, the High court will be pleased to set aside the exparte order dated 26th March 1999 passed in W.P.:6162/99 on the the file of the Hon’ble Court. W.P.M.P. No : 7962 /
1999: Petition filed u/s 151 of CPC, praying the High Court to suspend the exparte order dated 26th March 1999 passed in W.P.:6162/99 on the file of this Hon’ble court. The petition coming on for house motion for hearing upon pursuing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr M.V.S. Suresh Kumar , Advocate on behalf of the petitioner in W.P.M.P. No 7961 & 7962 of 99, and Mr A M Qureshi, standing counsel on behalf of the respondent no 2 in W.P.M.P No’s : 7961 and 7962/99 the court made the following order :- ORDER : ( Per the Hon’ble Mr S T Nayak Judge ) These applications are placed before me today at 3:45 pm as house-motion matter as directed by the Hon’ble chief justice. Heard Sri M V S Suresh Kumar, learned counsel for the petitioner herein, Sri M A Bari, learned counsel for the respondent no 1 and Sri A M Qureshi, learned standing counsel for wakf board. The pleading filed before the court throw a controversy regarding the entitlement to offer prayers by the member of the writ-petitioner of the association led by pesh-e-namaz moulana Syed Riazuddin Hyder Jafri Akhbari. Article 226 proceeding is not an appropriate proceeding to decide this actual controversy. The writ petitioner has to work out appropriate remedy elsewhere. I should state that, in all fairness, counsel appearing for all the parties have tentatively and as a stop-gap arrangements only for Eid-ul-Zuha to celebrate on 29th March 1999 agreed for the following arrangement : In that view of the matter and in modification of the order of this court dated 26.3.99 in W.P.No 6162/99. I directed that the members of the writ petitioners associations led by pesh-e-namaz moulana Syed Riazuddin Hyder Jafri Akhbari can visit the respondent no 2 ( in the main writ petition ) between 11 am to 12 noom on 29.3.99 and offer their prayer led by pesh-e-namaz moulana Syed Riazuddin Hyder Jafri Akhbari and they shall positively vacate at 12 noon. All the contentions raised by the parties in their pleadings are kept opened to be agitated in appropriate legal proceedings. With these directions W.P.M.P’s stand disposed of. // TRUE COPY // Sd/- D. LAKSHMINARAYANA ASST. REGISTRAR SECTION OFFICER To
1.
The Chief Executive Officer A P State Wakf Board, Syed Shah
Barhanuddin Quadri garu, having its office at Razzaq Manzil opp Public
Gardens Nampally Hyderabad. 2.
The Secretary of its managing committee Ibadath Khana-e-Hussaini,
Baquar Ali Khan Panjetan Colony, Darul Shifa Hyderabad. 3.
1 CC to Mr M.V.S. Suresh Kumar Advocate
} 4.
1 CC to Mr M A Bari, Advocate.
} ( FREE
OF COST ) 5.
1 CC to Mr A M Qureshi Advocate,
} 6.
1 spare copy
MEMORANDUM
OF WRIT PETITION FILED UNDER
ARTICLE 226 OF THE
CONSTITUTION OF INDIA IN
THE HIGH COURT OF JUDICATURE OF
ANDHRA PRADESH AT
HYDERABAD. W.P.NO. 7179 of 1997Between: Anjuman-e-Alavi
Shia Imamia Ithna Ashari Akhbari AND
The
Union of India, represented by its AFFIDAVIT
I, Syed Waheeduddin Hyder S/o Moulana Syed Riazuddin Hyder Qibla,Aged 42 years, Occ: Business and Religious affairs R/o H.NO. 22-3/885, Darush Shifa Hyderabad, do hereby solemnly and sincerely affirm and state as follows:- 1.
I am the Secretary of the
Anjuman-e-Alavi Shia Imamia Ashari 3.
I, submit that the Shia Imamia Ithna Ashari Akhbari perform the
“Maatham” as one of the articles of their faith in paying their humage
and exhibiting their allegience to Hazrath Imam Hussain (A.S.) and Hazrath
Zainab (A.S.), the sister of Hazrath
Imam Hussain (A.S.), who had herself commemorated
the Martyrdom of her brother and his associates
by holding a Manjlis and thereafter shedding her own blood. 4.
I submit that the
Hindi Film “ZIDDI” which is going to be exhibited and
screened in two Cinema
theatres Odeon and Tirumala
of Hyderabad City from 11th
April 1997, Friday concludes with scene of the procession of “Maatham”
with “Alams”. The Scene exhibits
the Azadars engaged in the “Maatham” by using “Zanjeer” (Chain)
with blood coming out of their hacked
bodies while they
are raising slogans of “Hai Hussain” “Hai Hussain”
meanwhile the “VILLAIN” comes
running and enter the
“Maatham” procession. Meanwhile the Hero of the Film comes chasing the
Villain and snatches a “Zanjeer” from one of the “Maatham”
processionists and makes a deadly assault with the “Zanjeer”(Iron
Chain) against the "VILLAIN” who dies on the spot.
The Respondents No.3 and 4 are the producer and Director of the
film, respondents No. 7 and 8 are the agencies releasing the said film,
while the respondents No.5 and 6 are the exhibitors. 5.
I, submit that the Scene is insulting and hurts the religious
feelings of the Shia community and is likely to incite the people to
indulge in commission of offences, as the result of the
provocation which is
likely to create law and order situation
under section 153 IPC. The
Weapons use for the
“Maatham” are having a symbolic religious significance but the
depiction of Murder committed by such a weapon gives an impression
that Shias could use
them against others in real life. These
is most shocking totally misleading and injurious to religious feelings of
the Shia community. 6.
I submit that Ist scene of the said Film “ ZIDDI” in violative of articles 21 and 25 of the constitution of India and malignantly and wantedly gives
provocation to the religious feeling which is not considered by respondent
NO.2. 7.
I submit that I came to know that particulars of the above scene
and its provocative defamatory and insulting nature from the stills
exhibited at the theatres and thew trailers shown. 8.
I submit that there
is no other effective
and effcacious
remedy available to the petitioner to invoke this extraordinary
writ jurisdication
under article 226 of the constitution of
the India. 9.
It is therefore prayed that this Hon’ble court may be pleased to
issue an order or direction more particularly in the nature of writ of
prohibition or any appropriate writ or order directing the respondents to
remove the part of the film “ZIDDI”, which exhibits the scene of the
“Maatham” and “Alam” of the Shias and the Hero of the said film
snatching away the “Zanjeer” from one of the persons engaged in the
“Maatham” and killing the Villain by the said Weapon holding that it
is violative of the section 5 (B) of the cinematography act. 1952, against
the public order and likely to incite the people to indulge in the
commission of offences and to create ill-feelings against the Shias and
insulting the religious feelings of the Shias (Class of citizens of India)
which is proposed to be exhibited
in the theatres of the odeon
70 MM and Tirumala 70 MM Hyderabad or
any other theatre in India and to pass such
order or orders as this Hon'ble court may deem fit
and proper in the
interest of justice. 10.
It is further prayed
that this Hon’ble court may be pleased to stay of the
exhibition of the film “ZIDDI”
in the theatres ODEON 70 mm, TIRUMALA 70 mm, Hyderabad or any other
theatre in India, until the disposal of the writ petition and to pass such
order or orders as this Hon’ble court may be deem fit and proper in the
interest of justice.
DEPONENT Sworn
and signed on this Advocate
/ Hyderabad. MEMORANDUM OF WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD. W.
P. No
of 1997. Between : Anjuman-e-Alavi
Shia Imamia Ithna Ashari Akhbari Occ
: Business, Religious affairs, R/o
H No 22-3-885, Darul Shifa, Hyderabad.
…….Petitioner And1.
The Union of India, represented by its secretary, 2.
Central Board of Film Certification, 3.
Shri N.R. Pachisia, Film Producer, R/o Bombay. 4.
Shri Gudde Dhansa, Film Director, R/o Bombay. 5.
M/s Odeon 70mm theatre, R.T.C Cross Roads, 6.
M/s Tirumala 70mm theatre, Chaderghat, Hyderbad., 7.
M/s Sahayog Films Rep. By its propreitor, 8.
M/s Shakir Enterprises ( Motion Film distributors and The
address of the petitioner for the service of all the notices and process
is C/o M/s M A Bari & K Venumadhav, Advocate H No 11-3-627 Mosque
Road, Mallapally, Hyderabad. The
address of the respondents is as stated above. For
the reasons mentioned in the accompanying affidavit it is therefore prayed
that this Hon’ble court may be pleased to issue an order or direction
more particularly in the nature of writ of order directing the respondents
to remove the part of the Film “ZIDDI”, Which exhibits the scene of
the “ Maatham” and “Alams” of the shias and the Hero of the said
film snatching away the “Zanjeer” from one of the persons engaged in
the “Maatham” and killing the Villain of the Section 5(b) of the
Cinematography Act, 1952, against the public order and likely to incite
the people to indulge in the commission of offenses and to create feelings
hatred against a community and the religious feelings of the Shias ( a
class of the citizens of India ) proposed to be exhibited in the theaters
of the twin cities including ODEON 70mm, Tirumala 70mm Hyderabad or any
other theatre in India and to pass such other order or orders as this
Hon’ble Court may deem fit and proper in the interest of justice. Dated
:- 07-04-1997. Place
:- Hyderabad.
COUNSEL FOR THE PETITIONER IN
THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD. (
special original jurisdiction ) Thursday,
the first day of May one thousand nine hundred and ninety seven. PRESENTThe
Hon’ble
AND The
Hon’ble Mr Justice B K Somasekhara Writ
petition No 7179 of 1977. Between
For
CT and prayer vide separate sheet attached
Petitioner.
AND
Respondent Petition
under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed here in the High court will be
pleased to For
Petitioner :
Mr M A Bari Advocate. For
the respondent 1: Mrs A Chaya Devi, S.C. for ruling central govt. For
the respondent 3: Mr. Venugopal Advocate. For
the respondent : IN THE HIGH
COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD C.T.
& Prayer W. P. No
7179 of 1997. Between : Anjuman-e-Alavi
Shia Imamia Ithna Ashari Akhbari (Registered
society under the Societies Registered Act) represented
by its secretary, Syed Waheeduddin Hyder S/o
Moulana Syed Riazuddin Hyder Qibla, aged 42 yrs, Occ
: Business, Religious affairs, R/o
H No 22-3-885, Darul Shifa, Hyderabad.
…….Petitioner And1.
The Union of India, represented by its secretary, 2.
Central Board of Film Certification, 1.
Shri N.R. Pachisia, Film Producer, R/o Bombay. 2.
Shri Gudde Dhansa, Film Director, R/o Bombay. 3.
M/s Odeon 70mm theatre, R.T.C Cross Roads, Hyderabad,
represented by its Manager. 4.
M/s Tirumala 70mm theatre, Chaderghat, Hyderbad., 5.
M/s Sahayog Films Rep. By its propreitor, Having
its office at Rashtrapati Road, Secunderabad. 6.
M/s Shakir Enterprises ( Motion Film distributors and exhibitors)
Rep by its proprietor, having its office at 5-1-27,
First Floor, Rashtrapati Road, Secunderabad.
………Respondents Issue
an order or direction more particularly in the nature of writ of order
directing the respondents to remove the part of the Film “ZIDDI” Which
exhibits the scene of the ”Maatham” and “Alams” of the shias an d
the Hero of the said film snatching away the “Zanjeer” from one of the
persons engaged in the “Maatham” and killing the Villain of the
section 5(b) of the Cinematography Act 1952, against the public order and
likely to incite the people to indulge in the commission of offenses and
to create feelings hatred against a community and the religious feelings
of the Shias ( a class of the citizens of India ) proposed to be exhibited
in the theatres of the twin cities including ODEON 70mm, Tirumala 70mm
Hyderabad or any other theatre in India. Dated
:- 07-04-1997 Place
:- Hyderabad
COUNSEL FOR THE PETITIONER. WRIT PETITION NUMBER 7179 OF 1997ORDERThe
parties have filed compromise petitions of Execution recorded in open
court. Heard
both the sides. The
petition is disposed of in
terms of the compromise petition.
Sd/- K V Hanumantha
Rao
ASSISTANT REGISTRAR.
TRUE COPY
SECTION OFFICER. Encl: Copy
of compromise petition. To
The
Secretary, 1.
Union of India, information and broad casting, shastry bhavan New
delhi. 2.
Central board of film certification chairman having its regional
office at near Hotel Sarovar, Adarshnagar Hyd. MEMORANDUM
OF W.P. MISCELLANEOUS PETITION . (
Under Order 23, Rule 3 C.P.C. ) IN
THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH: HYDERABAD. WPMP
No . of
1997 in Between: 1.
Anjumane-e-Alavi Shia Imamia Ithna Ashari Akhbari Registered
Society under the societies registration Act, represented by its secretary
Syed Waheeduddin Hyder S/o Moulana Syed Riazuddin Hyder Qibla, aged 42
years, Occ: Business, Religious Affairs, R/o H No 22-3-885 Darul shifa
Hyderabad. 2.
Shri N. R. Pachsia, Film Producer, Resident of Bombay. -
and – 3.
Shri Gudde Dhansa, Film Director, R/o Bombay. 4.
M/s Odeon 70mm theatre, R.T.C Cross Roads, Hyderabad, represented
by its Manager. 5.
M/s Tirumala 70mm theatre, Chaderghat, Hyderbad., Represented by
its Manager. 6.
M/s Sahayog Films Rep. By its propreitor, Having
its office at Rashtrapati Road, Secunderabad. 7.
M/s Shakir Enterprises ( Motion Film distributors and exhibitors)
Rep by its proprietor, having its office at 5-1-27,
First Floor, Rashtrapati Road, Secunderabad. For
the reasons stated in the accompanying terms of compromise, the
petitioners pray that this Hon’ble
court may be pleased to record the terms of the compromise between the
petitioners and pass such other and further orders or order as this Hon’ble court may deem fit. Hyderabad Dt
: 11-4-1997 Counsel
for Petitioners. District
Hyderabad. High
Court : Hyderabad. W.P.M.P.
No
of 1997 In W.P.
No 7179 of
1997. Petition
filed on behalf of petitioners under Or. 23 Rule 3 C.P.C. Filed
on : -4-1997. Filed
by: M/s
M A Bari
P.
Venugopal (1997) Counsel
for petitioners ( Writ Petr & 3rd Respdt. ). IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH HYDERABAD. W.P.
No 7179 of
1997. Between:
Anjuman-e-Alavi Shia Imamia Ithna Ashari Akhbari And1.
The Union of India, represented by its secretary, 2.
Central Board of Film Certification, 3.
Shri N.R. Pachisia, Film Producer, R/o Bombay. 4.
Shri Gudde Dhansa, Film Director, R/o Bombay. 5.
M/s Odeon 70mm theatre, R.T.C Cross Roads, Hyderabad, represented
by its Manager. 6.
M/s Tirumala 70mm theatre, Chaderghat, Hyderbad., Represented by
its Manager. 7.
M/s Sahayog Films Rep. By its propreitor, Having
its office at Rashtrapati Road, Secunderabad. 8.
M/s Shakir Enterprises ( Motion Film distributors and exhibitors)
Rep by its proprietor, having its office at 5-1-27,
First Floor, Rashtrapati Road, Secunderabad.
…..Respondents Whereas
after filing of the above writ petition and after service of telegraphic
notice by this Hon’ble court on respondents 5 and 6, the Hindi Feature
Film “ZIDDI” was shown by the respondent no. 7 i.e., the distributor
of the said film for the Nizam Territory to the members of the petitioner
society which was also seen by the learned counsel appearing for the
petitioner. Whereas
after seeing the above film, the Respondent no. 3 agreed to delete the
scene of “Matham” of “Alams” and the scene where the Hero of the
film kills the Villain with the weapon “Zanjeer” which is given by one
of the persons engaged in the “Matham” in Part 16 of the Film in its
territory and the petitioner and respondent no 3 compromised the matter on
the following terms and conditions: 1.
The resondent no 3 agreed to delete the scene of the “Matham”
and the “Alams” and the scene where the Hero of the film kills the
Villain with the weapon “Zanjeer” which is given by one of the persons
engaged in the “Matham” in part 16 of the film in all territories of
India. However since about 250 release prints have been despatched to the
respective distributors all over the country a few days ago and the film
has also been released in many territories on 9.4.1997 and 10.4.1997
atleast two weeks time is given to the respondent no 3 to enable his
editors to go to the individual theatres and delete the above said
objectionable portion. The respondent no 3 shall not screen the said
objectionable portion. 2.
The petitioner does
not have any objection for screening of the rest of the complete hindi
feature film “ZIDDI”. 3.
The petitioner and Respondent no 3 shall beast their own costs in
this writ petition. The
petitioner and respondent no 3 pray this hon’ble court to record this
compromise petition and close the writ petition against respondent no 3
and pass such further or other order or orders as this hon’ble court may
deem fit. (
ATLURI VENKAT )
( SYED WAHEEDUDDIN HYDER ) S/o
A. Nageshwar Rao
writ petitioner Power
of Attorney Holder of Sri
N R PACHISIA Resptdt-3. Counsel
for respondent no 3
Counsel for petitioner. IN THE COURT OF VI ASST.JUDGGE CITY CIVIL COURT AT HYDERABAD O.S. 1781 OF 1995 BETWEEN : M. A Hafeez Khan Drawadi Plaintiff And 1. Syed Ghulam Hussain Raza Agha 2. Syed Riazuddin Hyder Defendant Interpleader suit under 88 R/W under order 35 of CPC written Statement of the Defendant No. 2 1.
Para one of brief facts of this case narrated by plaintiff shows
that he has no accurate knowledge about the religious, pious and spiritual
personalities of the Shias in the twin cities of Hyderabad who may be
rightful claimant to collect the money of Khums ( Share of Imam), and need
no reply. 2.
In reply to para (2), The plaintiff stated that the Jafferi School
of though into two main branches is not correct. This defendant submits
that the Islam, Which was presented by Prophet Mohammed (S.A), was
Tampered surfing the period. It was protected by 3rd Imam ( the
successor of the prophet). Imam
Hussian (A.S) by not conferring the Yazid as Khalifa (successor of Prophet
Mohammed) in 61H/680 AD. It was the same slam which consists Quran and
tradition and not Usuli Islam (Ijtehad) Again it was tampered as per the
Whrims and fancy of Kalifa and Mujtahids. Because of this the number of
school/sect came into existence. The origin Islam was again presented by
the 6th Imam (5th successor of Prophet), Imam Jaffer Sadiq (A.S).
Therefore the followers 12 Imams were also called Jafferi same followers
were also called Akhbari as they have not deviated in any manner from the
teachings of 12 Imams. (a)
Shia: According to shi`is belief, the Hazrath Ali (A.S) position is
confirmed by Prophet Mohammed (S.A) as his immediate successor as he was
nominated by Almighty. They are divided in different sects like Zaidis,
Ismailis, IthnaAshari(twelver) (b)
Itna Ashari: Those people who accepts the 12 infallible imams first
Imam being Hazrath Ali (A.S) nominated by Almighty. This sect during the
period is further divided into two sub sect, Akhabari and Usooli on the
basis of sources of Islamic law & Beliefs. (c)
Akhbari : prophet means messenger who give the message /Akhbar (Akhbar
means traditions) they believe that complete religion is encompassed or
covered by quran and traditions only which were narrated or confirmed by
14 infalliables ( Prophet Mohammed (S.A) hazrath Fatima A.S and 12 Imams
A.S The
Akhbari rely on four books tradition and regard those book as canonical.
They are (1) Al Kafi fi Ilm ad Din (2) Man la Yahzuruhu-al-Fagih (3) Al-Istibsar
(4) Tahzib al Ahkam. In addition to these books like Al-wafi,
Ahkamul-Aimma, Wasail-ush-Shia are also relevent traditions books for
them. Infact,
the Akhbari stream of thoughts faith, jurisprudence and concept regarding
religion are the same as in the period of prophet and Imam (A.S.) and
never accepted and regarded any new concept from any non-infallible person
either in faith or in jurisprudence. The
Akhbaris are also called Imamiya & Jafferi on the basis of belief and
obey to 14 Infallibles ( Refer Nahjil Balaga & Fi Sabilil Wahadatil
Islamia) The D-2 belong to Akhbari Sect. USULI
: They believe that sources of Islam are 4 (1) Quran (2) Tradition (3)
Ijma (Consensus) (4)
Intellect. They accept 12 Infallible
Imams but refer to Mujtahid Marja-e-Taqleed who use all the 4 sources of
Islam liberally & have no limits for all activities of life. The Ijtehad may be defined as the process of arriving at judgements on points of religious law using reasons & the principles of jurisprudence (Usual at figh) (Ref An Introduction to Shi’i Islam 186). Naib ul Imam Ayatulla Khaminai stated that a student can become mujtahid without going through Quran at all. Further he said that they are not aware of traditions (Refer Sada-e-Jaffaria dt 1-3-1992). Naturally,
the differences developed between Akhbaris and Usulis concept During
the period., Further the Usoolis had differences among Mujtahids (Fatawas)
even during the same period. (Refer Sermon no 18 of Nahjul Balaga). One
Mujtahid can not reject other mujtahid’s Fatwa inspite of having
contrary opinion. Further followers (Muqallid) is not permitted to ask the
evidence from Mujtahid. Similarly
the differences were developed between Akhbari & Usooli concept and
law. Mohammad
Baqir Ibne Mohammad Akmal Bihbahani (1706/1118 to 1792/1207 AD) is
considered to be the founder of Usooli school. Wahid Bihbahani brought the
threat of takfir (condemn as an infide) into the central field of theology
and jurisprudence, where previously only ikhtilaf (difference of opinion)
(between Usooli and Akhbari) had existed.
(An Introduction to Shi’i Islam p.128). This attitude changed the
Shia Usuli world radically (i.e., declaring the akhbari are infidels)
which immediately divided the Usuli sect into two groups, mujtahid (who
can have their own independent judgement) and Muqallid (who had to follow
the rulings of mujtahid). One result of this division made Usooli (General
Public) to fall sharply in the hierarchy of mujtahid.
This lead to the development of concept of Marja-e-Taqlid
(reference point for amulation) and frequent reference to him as Naib al
Imam (Deputy of the Imam) (Ref An Introduction of shii Islam p.204 &
140). The
Usuli had no definite and confirm books of traditions.
The rely on mujtahids Fatwa (opinion). They consider all the book
of traditions as probable valid (Zanni-ud-dalala). All
these concept of Usuli Shia Ijtehad, Mujtahid, Taqleed ( following the
opinion of non-infallible scholars), Naib al Imam ( Deputy of Imam who is
non-infallible) are developed during the late 18th & early
19th century and Akhbari rejects these concepts are contrary to
Quran & Traditions the D-1 belongs to Usuli sect.
In 1200/1785, the Moulana Sayyid Dildar Ali Naseerabadi (1166/1752
to 1215/1820 became the first Indian to return to India as recognized
Mujtahid. (An introduction to
the Shi’i Islam p.145). Difference
between Usooli & Akhbari It is submitted briefly as follows: -
3.
In reply to Para 3, plaintiff states that a Shia Syeda Sydanis
woman sent to the plaintiff an amount of Rs 1400/- being the Khums
Sahm-Iman (Share of Imam) and directed to pay the same to a competent and
rightful. Thus it shall be paid to any deserving sadaat who believe and
follow 12 infallible Imams (A.S.) The legal concept of Khums is stated as
follows :- Khums
(means one fifth):-This is levied by Shiis on 1/5th of net
income ( after paying all expenses). This tax is to be paid to the
Prophet, Imam and his family or his proginy (who are orphans, the needy
and travellers is exhausted) known as Sadaat who have faith on 12 Imams (A.S.)
and follow them. Half
of the Khums is to be paid to sadaat and rest half of the khums to be paid
to Prophet or Imam (A.S.). As they are not physically present among us,
Prophet Mohammad (A.S.) Hazrath Ali (A.S.) and 12th Imam (A.S.)
permitted the Khums payee to disburse their share to those sadaat who have
faith on 12 Imams (A.S.) and obey them. (If they are needy) (refer
Athar-e-Hyderi and Biharul Anwar vol XIII Bidayatul Hidaya). In
Usuli sect, Marjae-taqleed (reference point of emulation) collects the
share of Imam (Khums) compulsory, directly or through their nominated
agents, and consider themselves as authority.
Their rule of collecting the khums (share of Imam) and authority
can not be substantiated by Quran or relevant traditions. Their role is
nothing but self styled and
arbitrary. Precisely Abbas
Mirza, King of Iran turned towards ulama and obtained from shaikh jaffar
al kashiful ghita with others a declaration of Jahad (Holy war) against
Russia. Kashiful Ghita used this opportunity and started collecting the
religious tax of khums. (An introduction to shii islam p-191). Thus
as per the command and permission of Imam (A.S.) the share of Imam (A.S.)
must be paid to sadaat only. No
special designation or qualification or such things are required or to be
enquired. And neither it is
mentioned in Quran or traditions. Khums
cannot be utilised for any other purpose like charity, school fee, school
building, medicines, etc, other than payment to “Sadaat” the payment
of khums to sadaat shall be to the extent which may suffice for his annual
essential requirements. 4.
In reply to Para 4, it is again submitted that the khums to be paid
to only sadaat as per Imam’s (A.S.) order an Quranic verses (8:41) The
Usuli sect had propogated against Quran & traditions that the khums
(share of Imam) shall be compulsory paid to Marja-e-Taqlid or his
nominated agents (refer practical law of islam) by wrong propagation of
fatwas by usuli, khums were paid to marje-e-taqleed shaikh mohammad araki
in his period who was not a sadaat. Further
it is submitted that the big titles and appellations or having the number
of fans had nothing to do with the khums as per Quran and traditions.
Thus the Usuli school had deviated from the part of Quran and
tradition and relevant tradition in this regard also. 5.
In reply to Para 5, the D1 is of view that Ijtehad is a recognised
principle of jurisprudence right from the day of the ghaibat of 12th
Imam (A.S.) is certainly against fact.
The Ijtehad is shi’i world never introduced before 7th
century of Hijra (i.e. 600 yrs after the death of Prophet Mohammad (A.S.)
and 300 yrs after the ghaibat or occulation of 12th Imam (A.S)
(refer raies-o-peshwa-e-mazhab Imam-e-Jafar-e-Sadiq (A.S) and
Ijtehad-o-Taqleed by moulana Zeeshan Hyder Jawwadi). Further,
it is stated that D1 is an authority and rightful claimant to collect the
khums and he is authority to control wakf and other matters touching shia
religion, In this regard, it is submitted that it is an allegation as it
is not supported by Quran or traditions. The system of khums as per Quran
and traditions are already mentioned above. The wakf order are mentioned
in their respective wakf deed. Nobody can interfere or control if it is
not mentioned clearly in wakf deed. Thus, as regards to para 5 the alleged
inquiry of plaintiff to this defendant on 24.04.1995 are denied as it is
not true in this regard. It
may not be out of place to mention that the akhbari while challenging the
constitution of wakf board by the govt of andhra pradesh in G.O. Ms no 74
have challenged the said constitution on the ground that most of the
properties belongs to akhbari sect, and none of the members nominated by
the govt from the community of Akhbari and all of them were Usuli.
Hon’ble Justice Motilal B Naik while disposing of W.P.No 16122
and 16111 of 94 through a common order dated 10-4-1995 held that
the akhbari should also be given due representation in the board, if a
fresh board is constituted by the govt, the appointment of all the members
including the shia members were quashed by on said judgement. 6.
The contents of para 6 is inaguagary, atleast regarding D2 who is
strict follower of Quran and tradition. Further it is submitted that this
Hon’ble court is neither competent nor entitled to adjudicate in manner
which will compel by shia member to give the khums to any particular
religious head. Further any
such order will be incapable of being enforced and will be illegal.
This defendant had not appeared to claim the khums but to present
the fact mentioned in Quran and tradition. So that the Hon’ble judge may
not be misguided by false stories. 7.
As regards para 7, it
is denied that any of the sympathisers of this defendant even approached
the plaintiff and canvas in the favour of this defendant the allegation of
the contrary are not only false but also bring down the dignity and
position of the defendant in the eyes of public at large and the shia
community particular. The allegations are invited to create an imaginary
dispute and to confers jurisdication to this Hon’ble court. This
defendant further submitted that this court is not competent to judge the
religious merit or superiority one over another which is a matter of
faith. Lastly it is once
again submitted the Akhbaris doctrine, law and jurisprudence are that same
as 12th Imam (A.S) narrated which is also known as Jaferi
school of thoughts. Where as the usuli law and jurisprudence varies from
time to time and one mujtahid to another. 8.
In reply to para 9 to 13, it is submitted that there are formal and
need not be transferred by the defendant No (2). It
is that the plaintiff of this suit claimed himself to be a journalist that
infact he is playing in the hands of usuli elements, who wants to create
unhealthy and disreputive atmosphere among shia and it differ the
defendant no 2 and Akhbari sect specially that suit is failed and
questioned which are the matters of the faith and should justicable by
court. Infact, the plaintiff could have referred authentic books and to
have the answer to the question of khums, which is clearly discussed in
the books to traditions and no opinion of the court needed to be expressed
through interpleader suit. It
is prayed suit of the plaintiff may be dismissed with exemplary cost of
the status of the defendant no (2). Defendant
no (2). Defendant
no (2) verified the contents of para no 1 to 8 of the W.S. to be true and
correct to the best of his knowledge and believe this day of 15-12-1995 at
Hyderabad. Defendant
no (2). IN THE COURT OF VI th ASST. JUDGE CITY CIVIL COURT HYDERABAD. O.S.
1781 of 315 BETWEEN HAFEEZ
KHAN DRAWADI And 1.
SYED GULAM HUSSAIN. 2.
SYED RIYAZUDDIN HYDER. W.S.
OF Deft. No 2. Revised
Copy Raza
Ali. Filed
by M A BARI, Advocate. IN THE COURT OF VI th ASST. JUDGE CITY CIVIL COURT HYDERABAD. DATED
THIS THE 28 DAY OF JAN 1998 PRESENT
: SRI C SYAMSUNDER., M.Com, LLB., VI
Jr Civil Judge. O. S. No 1781 of 1995 Between HAFEEZ
KHAN DRAWADI …PLAINTIFF And 1.
SYED GULAM HUSSAIN. 2.
SYED RIYAZUDDIN HYDER. …DEFENDANTS This suit is coming on this day before me for final hearing in the presence of Sri. G Shankar counsel for the Plaintiff, this court delivered the following : J U D G E M E N T Advocate for plaintiff called absent. No representation at 1 p.m. hence the suit is dismissed for default, Written
and pronounced in open court this the 28th day of January 1990. VI
JR CIVIL JUDGE CITY
CIVIL COURT, HYD. APPENDIX OF EVIDENCE For
Plaintiff For
Defendant Exhibits marked
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