Malali Mosque Dispute: Karnataka High Court Rejects Challenge To Civil Court's Decision To Decide Maintainability Before Ordering Masjid Survey

A single judge bench of Justice Sachin Shankar Magadum rejected the petition filed by TA Dhananjaya and BA Manoj Kumar, who had challenged the order of the trial court dated June 6.

The trial court had passed the order while dismissing a memo filed by plaintiff Dhananjaya, urging the court to consider his Interlocutory Application seeking appointment of a court commissioner to survey the masjid.

The judge had said that the jurisdiction of the court must be decided first before proceeding with other applications. This was after the defendants (masjid authorities) had moved an application for rejection of the plaint.

Senior Advocate Jayakumar S Patil appearing for the respondents had argued in the High Court that if a suit is barred under legal provisions, under the Places of Worship Act and Waqf Act, the question has bearing on everything that is to be done in the suit. In case the court has no jurisdiction, doing all other things will amount to wasting of public time, he said.

Further, he argued that if the High Court directs the trial court to take up the application for appointment of local commissioner first, that would mean that the High Court was interfering with the functioning of the subordinate court. He had contended,

"It is not interfering with the order but interfering with the functioning of the court. Article 227 is not meant for this. Even under Article 227, the Writ Court should confine itself to the order which is challenged. The order which is challenged is that the trial court says I will take up this application first. Even if this discretion is not available for the court, it will be difficult for it to function."

Senior Advocate Vivek Subba Reddy appearing for the petitioners had contended in the entirety of the issue at hand, the court cannot give a ranking to the applications made.

He submitted that there may be circumstances where an application for appointment of Commissioner for carrying out a survey may have to be decided first and there may be circumstances where Order 7 Rule 11 applications may have to be decided first. However, he added that the trial court must keep in mind the "urgency" of the applications.

"In such a situation when parties come to court where there are certain exigencies, and a Commissioner is to be appointed, then the court is bound to place discretion on the issue and give a view and issue an order...Courts have to do substantive justice. This is the function...Evidence was to be collected of historical nature. Therefore, the court had to immediately send out the summons. Whenever, procedure law and substantive law collide, it is substantive law which wins."

He had also contended that in order to decide an application under Order 7 Rule 11 (d), as a pre-condition the court requires the report of the commissioner. The trial court ought to have procured the report and based on that the trial court should have decided on the validity of the suit.

He had added the Commissioners report is material because the question of fact is as to Ancient Monument. "Can ancients name be decided as a question of law? Ancient Monuments cannot be decided as a question of law. The actual rendering of fact based on scientific and technological evidence would aid the court to decide whether it is ancient or not."

Referring to the Gyanvapi Mosque Case, he had said, "Assuming in the Gyanvapi case the court did not exercise its discretion and no Commissioner was sent, would it be possible for the world to see that there was Hindu temple? Therefore it is germane to decide this issue first. Courts have to do substantive justice."

Case Title: Dhananjay v. Jumma Masjid Malalipete

Case No: WP 11528/2022

Citation: 2022 LiveLaw (Kar) 265