2 The respondent-plaintiffs filed a suit (Civil Suit No 18 of 2022) seeking a declaration 2 that they were entitled to perform rituals of deities which are allegedly present within the premises of the Gyanvapi mosque. This Court by an order dated 17 May 2022 directed the order of the Civil Judge dated 16 May 2022 shall not restrain the access of Muslims to the mosque or the use of the mosque for the purpose of performing Namaz. The District Judge allowed the applications and directed the ASI to “undertake the scientific investigation/survey/excavation on the property bearing Settlement Plot
No 9130”, excluding certain areas which were sealed by the orders of this Court dated 17 May 2022, 20 May 2022 and 11 November 2022.
The submissions which were made by the Additional Director General have been recorded in the following extract of the judgment of the High Court: 7 9 The High Court held that the order of the District Judge directing a survey falls within the ambit of Order XXVI Rule 10A of the Code of Civil Procedure 1908. The High Court observed that since the Department of Archeology and counsel representing the Department had expressly stated that no damage would be caused to the property in question, the survey which is proposed, may be permitted to be carried out.
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On behalf of the petitioner, it has been submitted by Mr Huzefa A Ahmadi, senior counsel that this Court ought to interfere with the order of the High Court because: The carrying out of a survey is contrary to the provisions of the Places of Worship (Special Provisions) In the course of the proceedings before this Court, the order for survey was stayed, on the Solicitor General joining in the submission that the process of carbon dating may partake of an 2 3 9 invasive nature; (iv)
An order of status quo in respect of the property was passed in the judgment of this Court in Mohd Aslam Alias Bhure vs Union of India and Others because of a threat to the property; and (v) On the other hand, Ms Madhavi Divan, senior counsel appearing on behalf of the original plaintiffs in the suit submitted that: An order under Order XXVI is essentially for the benefit of the court which requires such a survey to be conducted to assist it in deciding the substance of the controversy in a suit; (ii)
The order of the trial Judge ordering a survey is neither adversarial nor prejudicial since it is not determinative of the substance of the rights of the parties; (iii) All parties would be entitled to file their objections to the report of the ASI and to seek cross-examination should the survey be intended to be let into substantive evidence; 4 10 (iv) The issue in terms of the provisions of Section 4(1) of the Places of Worship (Special Provisions) Act 1991 is as regards the religious character of the place.
In this backdrop, when the Trial judge allowed an application for a survey by the ASI, the order was stayed by the High Court during the pendency of the proceedings. Rules 9 and 10 of Order XXVI therefore assume relevance and are extracted below: 12 In terms of Order XXVI Rule 10, the Commissioner has to submit a report in writing to the court. 15
At this stage, the court must notice that the District Judge while acting as a trial Judge in the suit exercised discretion under Order XXVI Rule 10A to direct a scientific investigation by the ASI. 17
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We reiterate the direction of the High Court that there shall be no excavation at the site which was in accordance with the statement which was made before the High Court by the Additional Solicitor General and which has been reiterated in the submissions made by the Solicitor General on behalf of the ASI.
Case Title: COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA MASAJID VARANASI Vs. RAKHI SINGH (2023 INSC 702)
Case Number: / 0
