Gyanvapi case: SC to wait for Varanasi district court’s decision on suit maintainability

Supreme Court
Image Courtesy: newsbytesapp.com

In latest developments in the matter pertaining to the various litigations and controversies surrounding the Gyanvapi mosque, the Supreme Court has decided to wait for the Varanasi district court’s decision pertaining specifically to the maintainability of the case under Order 7, Rule 11 of the Civil Procedure Code (CPC). The court, accordingly, adjourned the matter till the first week of October.

The bench of Justices DY Chandrachud, Surya Kant and PS Narasimha was hearing a petition by the AnjumanIntezamia Masjid (AIM) which is the mosque management authority of the Gyanvapi mosque, challenging the lower courts order to conduct a survey of the mosque.

Senior Advocate Huzefa Ahmedi appeared for the mosque committee and submitted that the mosque committee had raised objections even before the commission to conduct the survey was even appointed. Readers would recall that a survey had been ordered by a lower court even though the judgment in the original title suit before the Allahabad High Court was pending. Judgment in the title suit had been reserved in April 2021.

But the trial court rejected their contention, forcing them to move Allahabad High Court. The High Court also rejected their petition against the survey and it was conducted in May 2022, even as the AIM moved Supreme Court.

Sen. Adv. Ahmedi also submitted that the commission report was passed ex-parte and they were not given a chance to file their objections. LiveLaw quoted him as saying, “There was no cause to order the commission report ex-parte. Post this order, there is a domino effect across the country where similar applications have been filed.”

The matter will now be heard after the court of District Judge Ajay Krishna Vishwesha arrives at a decision regarding the maintainability of the Shringar Gauri suit, where five Hindu women had moved a Varanasi court seeking permission to offer prayers at what they say used to be a temple of the deity named Shringar Gauri, and where traditional Hindu prayers were offered until 1993.

What is Order 7 Rule 11

According to Order 7, Rule 11 of the CPC, a court can reject a plaint:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

The suit was originally filed in August 2021, by a few Hindu women before the Civil Court (Senior Division), demanding that the Maa Shringar Gauri Temple located on the premises of the Gyanvapi mosque be reopened, and people be allowed to offer prayers before the idols that are still kept there. The petitioners cited the right to practice one’s faith and religious freedom guaranteed by Article 25 of the Constitution.

Following this a video survey of the area was ordered and the survey was carried out despite objections raised by the mosque management authority. After the Allahabad High Court denied their appeal against the survey, the AIM moved SC where it highlighted how the Places of Worship Act, 1991, prohibits changing the character of a place of worship from what it was on August 15, 1947. Thus, AIM said that the suit was not maintainable as per Order 7, Rule 11 (d) of the CPC.

Worship and carbon dating of “Shivling”

Readers would recall that on July 15, Rajesh Mani Tripathi, president of Krishna Janmabhoomi Mukti Dal, moved an application before the SC saying, “Applicant wishes to perform their religious practices as guaranteed under the Constitution of India, on the “Shiv Linga” found during the survey conducted in pursuance to the order passed by the concerned Court of Varanasi. It is a matter of record that the said “Shiv Linga” found during the survey has duly been protected vide the order passed by the concerned court.” The petitioner also claimed that though the “Shivling” is protected, so far, there is no restriction to devotees to offer prayers to it.

On July 17, seven Hindu women moved Supreme Court demanding carbon dating of the structure discovered during the video survey. The petitioners claim that this is a “Shiving”, and have also demanded a Ground Penetrating Radar (GPR) survey of the area.

According to Times of India, the women include an advocate, a professor and five social workers and are represented by advocate Vishnu Jain. They have sought directions from the Supreme Court to the Kashi Vishwanath Temple Trust to take over the “Shivling” and the adjacent area, claiming that the deity had dominion over five kos or 15 kilometers of peripheral land.

TOI quoted an excerpt from their petition: “The exact age and dimensions of the discovered Shivling could be ascertained only after its GPR survey and carbon dating by or under supervision of Archaeological Survey of India.”

On Thursday, July 21, 2022, the Supreme Court refused to entertain these two petitions. Both petitions have now been withdrawn with liberty to pursue liberties available under law, reported LiveLaw.

Brief background of the “Shivling” controversy

Readers would recall that during the video survey of the mosque premises, a structure had been found submerged in the WazuKhana or ablution tank of the mosque in May. Even though the findings of the survey have still not been released, the lawyer for Hindu petitioners in the Shringar Gauri case had on May 16, a day before the deadline for the survey report to be submitted, informed the court that had ordered the survey that the structure was a “Shivling”, a symbol associated with the deity Shiva and considered holy by Hindus. The court of Civil Judge (Senior Division) had then ordered the area sealed.

However, the AIM had rubbished these claims saying it was a part of a now defunct fountain, and not a “Shivling”. Two mahants associated with the Kashi Vishwanath temple had also debunked the “Shivling” claims.

The AIM moved an appeal against the lower court’s order to seal the premises, but the Supreme Court on May 17, 2022, ordered to protect the area where the “Shivling” was found at Varanasi’s Gyanvapi mosque, without impeding Muslims’ right to enter the mosque and pray.

The Supreme Court subsequently transferred the matter pertaining to determining the maintainability of the suit, where five Hindu women had demanded the right to offer prayers at the Shringar Gauri temple, to the court of Varanasi district judge AK Vishwesha. That case is being heard on a day-to-day basis at the district court in Varanasi.