14 Aug 2023 10:29 AM GMT
The Shri Krishna Janmabhoomi Mukti Nirman Trust has moved the Supreme Court praying for a scientific survey of Shahi Eidgah Masjid premises, which is claimed to be built over Krishna Janmabhoomi. This development comes a month after the Allahabad High Court dismissed the writ petition filed by the trust seeking a direction to a local court to decide an application for a scientific survey of...
The Shri Krishna Janmabhoomi Mukti Nirman Trust has moved the Supreme Court praying for a scientific survey of Shahi Eidgah Masjid premises, which is claimed to be built over Krishna Janmabhoomi. This development comes a month after the Allahabad High Court dismissed the writ petition filed by the trust seeking a direction to a local court to decide an application for a scientific survey of the premises of the mosque in Uttar Pradesh's Mathura.
The trust has approached the top court after being aggrieved by the high court's order upholding the civil judge's decision to first consider an application filed by the mosque committee under Order VII Rule 11 urging the court to reject the plaint on the ground of non-maintainability, before examining the plaintiff's application for "an office for a survey and scientific commission to be constituted through an independent and competent authority" to inform the court about the 'correct position' with respect to the disputed site.
The special leave petition reads:
"The controversy in the present petition relates to the identification, location, or measurement of the land at this age before the application under Order VII Rule 11 is decided. A local investigation is necessary at this stage. Once there is a controversy as to the identification, location, or measurement of the land, a local investigation should be done at an early stage so that the parties are aware of the report of the commissioner. The trial court ought to have considered the appointment of a commissioner for the purpose of identification and thereafter should have ordered for deciding on the application under Order VII Rule 11."
The Shahi Eidgah mosque was built on the orders of Mughal Emperor Aurangzeb adjacent to the Krishna Janmasthan Temple, which is believed to be the place where the Hindu god Krishna was born. In 1968, a 'compromise agreement' was brokered between the Shri Krishna Janmasthan Seva Sansthan, which is the temple management authority, and the Trust Shahi Masjid Eidgah allowing both places of worship to operate simultaneously. However, litigants who have sought various forms of relief in court with respect to the Krishna Janmabhoomi, including the trust that has now approached the Supreme Court, insist that the compromise agreement was made fraudulently and is invalid in law.
The current controversy is over whether an application questioning the maintainability of the plaint filed by the Shri Krishna Janmabhoomi Mukti Nirman Trust ought to be considered before deciding on an application seeking a scientific survey. In a civil suit filed in a Mathura court, the petitioner-trust, seeking to represent the rights of the Hindu community over the mosque which was allegedly constructed after demolishing Hindu temples, prayed for the relief of injunction and a declaration that such a construction cannot be a mosque and that the compromise in 1968 on the basis of which a decree was passed, was a 'sham' and 'fraud' which was played on the court, making both the compromise and the subsequent decree 'null and void'. The petitioner-trust had also claimed the right to worship at the site where the mosque stands today, and accordingly, sought its removal.
The local court decided to consider the aspect of maintainability raised by the mosque committee in an application under Order VII Rule 11 of the Code of Civil Procedure before considering the petitioner's application for rejection of the respondent's plaint, as well as for "an office for a survey and scientific commission to be constituted through an independent and competent authority" to inform the court about the 'correct position' with respect to the disputed site. Aggrieved by this order, the trust moved the Allahabad High Court, but a single-judge bench dismissed its writ petition. In appeal, the petitioner-trust has now approached the top court.
The petitioner-trust contended before the high court that the civil judge should adjudicate its application before deciding an Order VII Rule 11 CPC application of the Mosque Committee and UP Sunni Central Waqf Board objecting to the suit filed by Bhagwan Shrikrishna Virajman and others. However, a bench of Justice Jayant Banerji held that it was settled law that where in a suit, its maintainability has been questioned, then that fact has to be determined first and no other pleading nor any evidence may be considered by the court while adjudicating in respect of an application under Order VII Rule 11. The court remarked:
"...It is prerogative of the trial court to proceed in the manner it deems fit unless there is a specific provision that provides for a particular methodology or process to be adopted. The trial court, in the impugned order has observed that where in a suit, its maintainability has been questioned, then that fact has to be determined first. Therefore, hearing on the question of maintainability of the suit is proper and justified."
In May, the Allahabad High Court transferred to itself all the suits pending before the Mathura court praying for various reliefs pertaining to the Sri Krishna Janmabhoomi-Shahi Eidgah Mosque dispute, allowing the transfer application filed by Bhagwan Shrikrishna Virajman and seven others. In the operative part of its order, a single-judge bench of Justice observed:
"...Looking to the fact that as many as 10 suits are stated to be pending before the civil court and also there 25 should be more suits that can be said to be pending and issue can be said to be seminal public importance affected the masses beyond tribe and beyond communities having not proceeded an inch further since their institution on merits for past two to three years, provides full justification for withdrawal of all the suits touching upon the issue involved in the suit from the civil court concerned to this Court under Section 24(1)(b) CPC."
Justice Banerjee, while dismissing Shri Krishna Janmabhoomi Mukti Nirman Trust's writ petition, cited the transfer order. In light of the transfer of the suits, the Mathurs court would have no jurisdiction to adjudicate on the plea filed by the trust, the single-judge bench held. This transfer order was also challenged in the Supreme Court. While hearing the plea, a division bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia indicated that it would be better if the high court decided the matter. Justice Kaul observed during the brief hearing:
"Looking at the nature of the matter, is it not better that the high court tries the matter? Thinking aloud, if it is tried at a higher level...pendency of matter causes its own disquiet, one side or the other...A multiplicity of proceedings and prolongation are not in the interest of anybody. The objective as we see it is to ensure that further proceedings are not filed in the present matter. It is in the larger interest of everybody that the matter is decided at a higher level."
The apex court also sought details from the Registrar of the Allahabad High Court regarding the civil suits that were directed to be consolidated and transferred to the high court from the trial court.
The Krishna Janmabhoomi-Eidgah Mosque dispute is over a claim that Mathura's Shahi Eidgah Masjid is built over Krishna Janmabhoomi land. In a similar dispute related to the Gyanvapi mosque in Varanasi, the District Court had allowed a plea of certain worshippers for an ASI survey of the premises to ascertain if the structure was built over a temple. This order was later upheld by the Allahabad High Court as well as the Supreme Court.
Shri Krishna Janambhoomi Mukti Nirman Trust v. Sahi Masjid Eidgah Management Committee | Special Leave Petition (Civil) No. ___ of 2023