The Allahabad High Court has dismissed a petition filed by the managing committee of the Anjuman Intezamia Masjid on the Kashi Vishweshwar Nath Temple-Gyanvapi Masjid dispute in Varanasi.
A single-judge bench of Justice J.J Munir passed this order. In this petition, the plaintiff-respondents, who are five in number, have instituted regular Civil Suit in the Court of the Civil Judge (Sr. Div.), Varanasi for declaration, permanent injunction and mandatory injunction.
Through the suit, they have sought to enforce their right to profess, practice and propagate their religion, guaranteed under Article 25 of the Constitution. They have arrayed the defendant-petitioner, besides defendant nos1, 2, 3 and 5 as party defendants to the suit. The latter defendants are respondent nos 6, 7, 8 and 9 to the petition.
The plaintiff-respondents have pleaded violation of their right to darshan, pooja and performance of all rituals of Maa Shringar Gauri, Lord Ganesha, Lord Hanuman and other visible and invisible deities within the old temple complex, situated at Settlement Plot, falling in the area of Ward and Police Station Dashashwamedh, District Varanasi.
The plaintiff-respondents say that it is the defendant-petitioner who are in continuous violation of their aforesaid right.
Along with the suit, the plaintiff-respondents have also sought for the grant of a temporary injunction, seeking an ad interim injunction in similar terms, but temporary form. Along with the suit, an application for appointment of an Advocate Commissioner to make a local inspection of the property in question was also moved for the purpose of ascertaining the existence of the images of Deities Maa Shringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji and other Deities, at Settlement Plot, situate at Ward and Police Station Dashashwamedh, District Varanasi. The aforesaid application was moved invoking the provisions of Section 75 and Order XXVI Rules 9 and 10 read with Section 151 of the Code of Civil Procedure, 1908.
The Court noted,
The suit under reference was registered on the file of the Civil Judge (Sr. Div.), Varanasi on 18.08.2021 and on that day, three orders were made in the suit by the Trial Judge. By an order passed on the suit, he directed it to be registered and issued summonses to the defendants, fixing 17.09.2021 for the filing of a written statement and 24.09.2021 for the framing of issues. By an order passed on the temporary injunction application, the Judge issued notice to the defendants, which includes the defendant-petitioner, but declined to grant any ad interim injunction.
By an order passed on the application for appointment of a Commissioner to undertake a local inspection, he granted the application and directed that a commission be issued to an Advocate Commissioner from the list maintained for the purpose. The plaintiff-respondents were directed to take steps within three days. Post steps being taken, a writ was to be issued to the Advocate Commissioner concerned, who was directed to make a local inspection and submit a report to the Court before the date was fixed.
It appears that on the following day i.e 19.08.2021, a further application bearing paper was made on behalf of the plaintiff-respondents with a prayer that the Advocate Commissioner appointed order dated 18.08.2021, passed on the application paper, be directed to cause videography of the proceedings of the commission undertaken by him to be done.
It was further prayed that police assistance be provided to the Advocate Commissioner to assist him in the discharge of his commission. An objection to the said application was filed on behalf of the petitioner, where it was said that the application for appointment of a Commissioner to make a local inspection was allowed on 18.08.2021, that is to say, on the date that the suit was instituted and now, an application has been made on the following day for provision of police aid to the Advocate Commissioner, even before he has been appointed.
It was urged that an order for provision of police aid can be made only if the Advocate Commissioner, while executing the commission, finds himself obstructed and makes a report on that behalf.
The Court further noted,
The objection also mentions that there is a separate application made on behalf of the defendant-petitioner, seeking recall of the order appointing the Advocate Commissioner ex parte. An objection was also raised to the effect that in another suit, on a similar cause of action and the relief, brought under Order I Rule 8 of the Code, the Court, in Matters under Article 227, has stayed further proceedings of the suit till the next date of listing.
By order dated 08.04.2022, the Civil Judge (Sr. Div.), Varanasi has allowed the plaintiff-respondents’ applications in terms that Ajay Kumar, Advocate has been appointed the Advocate Commissioner to undertake a local inspection in terms of the order of the Court dated 18.08.2021.
It has further been ordered that the Advocate Commissioner would cause videography to be undertaken, covering the proceedings of the commission.
It has been further directed that in case the Advocate Commissioner finds it appropriate that in the execution of his commission, he requires police assistance, he would be entitled to it and the police officials concerned would render him necessary assistance. It is this order passed by the Civil Judge (Sr. Div.), Varanasi that has made the fourth defendant to the suit to move this Court under Article 227 of the Constitution of India. Apart from the order dated 08.04.2022, the defendant-petitioner has also challenged the order dated 18.08.2021, whereby the plaintiff respondents’ application seeking appointment of an Advocate Commissioner to make a local inspection was allowed.
Senior Advocate S.F.A Naqvi’s submission is that the impugned orders are bad because a commission for local inspection cannot be issued for the purpose of collecting evidence by a party.
He submitted that the purpose of a commission under Order XXVI Rule 9 of the Code is to elucidate the matters in controversy, where evidence adduced by parties is shrouded in some doubt. It is to place evidence in clear perspective that a commission can be issued, but not to aid a party to collect evidence.
Naqvi further argued that the direction to provide police aid could never have been made unless the Advocate Commissioner, during execution of the commission, felt that there was some obstruction to the discharge of the commission by him, which needed to be abated by necessary police aid. It is emphasized that the commission has yet not been executed and no report made. As such, there is no basis whatsoever to the direction granting police aid.
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The Court observed that,
The Court has perused the orders dated 09.09.2021 besides the other material on records. The Court must say at once that the petition challenges orders that hardly decide any kind of rights of parties. The reliance placed by the Senior Advocate appearing for the defendant-petitioner on the decision of the Court in Sri Kant v Mool Chand and others, 2019 (6) AWC 5427 to support his contention that unless evidence is led by parties and there is some confusion about it, no commission for local inspection can be issued, is quite misplaced.
The other objection canvassed by the Senior Advocate appearing for the defendant-petitioner, that a particular Advocate Commissioner cannot be chosen by the plaintiff, is also not well-founded. A perusal of the order dated 08.04.2022 shows that the Trial Judge has taken note of the fact that the two Advocate Commissioners, earlier appointed from the list, had not discharged the commission. It is on that basis that the Trial Judge has remarked that the issue involved is serious, which the Advocate Commissioners are reluctant to enter upon.
The Court held that the third limb of the objection, that has been urged on behalf of the defendant-petitioner, is that the direction to provide police aid could not have been issued unless the Advocate Commissioner reported obstruction by the defendants or from any other quarter. This also is an objection not well-founded, in view of the nature of the order that the Trial Judge has passed. It is not that the Trial Judge has said that the Advocate Commissioner would go to execute his commission with an armed force at his command. The Trial Judge has merely directed that in case the Advocate Commissioner finds it appropriate that the police force should assist him in the execution of his commission, necessary aid would be provided to him. The Court, therefore, does not find any force in the aforesaid part of the petitioner’s challenge to the order dated 18.04.2022.
The Court further held that the challenge to the order dated 05.04.2022 is also not well-founded, because it is well-known that an application under Order VII Rule 11 of the Code can be considered at any stage of the suit if the grounds disclosed by Order VII Rule 11 to reject a plaint are made out. The issue of a commission prior to orders on a motion under Order VII Rule 11 of the Code is no more than a matter of priority in the discretion of the Trial Court. The Trial Judge has not declined to decide the motion under Order VII Rule 11 of the Code, but merely said that the applications would be decided first in order. This is not a matter that the Court can be invited to interfere with, in the exercise of its jurisdiction under Article 227 of the Constitution.
“In the entirety of circumstances obtained, the Court does not find it to be a case worth interference with any of the orders impugned”
-the Court further observed while dismissing the petition.