Krishna Janmabhoomi Case | Supreme Court Leaves It Open To Allahabad HC To Decide Plea For Survey Of Shahi Eidgah Mosque

The Supreme Court on Friday refused to entertain a plea by the Shri Krishna Janmabhoomi Mukti Nirman Trust seeking a scientific survey of Shahi Eidgah Masjid premises, which is claimed to be built over Krishna Janmabhoomi. The Court, however, clarified that all questions relating to the Shri Krishna Janmabhoomi-Shahi Eidgah Mosque dispute would be left open to the Allahabad High Court to decide, which recently transferred to itself a clutch of suits seeking various reliefs with respect to the ongoing land dispute.

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a special leave petition filed last month against a July 2023 order of the Allahabad High Court dismissing a 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. A bench of Justice Jayant Banerji of the High Court upheld the civil judge's decision to first consider an application filed by the mosque committee under Order VII Rule 11 for rejection of the plaint on the ground of non-maintainability, before examining the plaintiff's application for a scientific survey of the premises to ascertain the 'correct position' with respect to the disputed site.

During today's hearing, Senior Advocate Gaurav Bhatia, appearing for the Trust, pointed out that after the civil judge had in March accepted the mosque committee's application to hear its challenge to the trust's plaint first, the Allahabad High Court in May 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. The high court, the senior counsel representing the Trust urged, ought to have applied its mind when considering the revision application challenging the civil court's March 31 order.

Bhatia also argued that the Trial Court was precluded from passing this order in view of the transfer of the suits. In response, Justice Kaul pointed out that the Civil Judge's order preceded the Allahabad High Court's decision to transfer the suits. The Trial Court, therefore, had the jurisdiction to pass the order, the judge said. At the same time, the judge expressed surprise over the High Court exercising its revisionary jurisdiction with respect to the Trial Court's March 31 order, even after the transfer of the suits to itself. The consequence of the transfer order was that the High Court became the court of first instance or the 'trial court'. Noting this, Justice Kaul said, "The transferred court cannot be the revisionary court."

"In the peculiar circumstances," Bhatia asked the bench, "Could it be clarified that the Trust can approach the High Court with this plea so that I am not left in the lurch and remediless?"

At this juncture, Advocate Tasneem Ahmadi, the counsel appearing for the Committee of Management Trust Shahi Masjid Idgah, informed the bench that the High Court's transfer order was challenged by it in a special leave petition.

After hearing the submissions of both counsel, the bench clarified that while it was unwilling to invoke its powers under Article 136 in view of the pendency of the litigation before the high court, all questions relating to the Krishna Janmabhoomi-Shahi Eidgah Masjid dispute would be left open for the Allahabad High Court. While dismissing the petition, Justice Kaul pronounced:

"The trial court passed the order before the transfer took place and so it cannot be said that the trial court did not have jurisdiction to pass the order. The High Court on transfer will do the trial court and become the court of the first instance. That being the position, it cannot be urged that the said court should also be the revisional court against the order of the trial court.

 As to what is the consequence of the transfer of the matters -whether the proceedings filed in other suits related to Order XXVI Rule 9 of the Code of Civil Procedure should be decided first, whether this suit should await those proceedings - are all matters to be considered by the high court on the transfer of the matter. Thus, we feel we are not required to exercise jurisdiction under Article 136, more so in the interregnum, as there are various issues at large that are pending before the high court as the court of first instance. We also note the submission of the respondent that against the order of the transfer order, a special leave petition is pending before this court. Thus, what we have observed above will be without prejudice to the rights and contentions of the respondent in that special leave petition. The petition is dismissed in the above terms."

The counsel appearing for the mosque committee argued, "This should not be read as any direction that the high court will decide the application under Order XXII first."

"Have we said that? We have only said it is for the high court to take a call," Justice Kaul assured.

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