The Supreme Court today dismissed a Special Leave Petition challenging an order of the Allahabad High Court which refused to direct the trial court to decide an application for a scientific survey of Krishna Janmabhoomi-Shahi Masjid Eidgah premises before disposing of the objections by the management committee of the mosque and the Uttar Pradesh Sunni Central Waqf Board to its suit. The bench has left the questions to be decided upon by the High Court which had transferred all the pending petitions from Mathura Court to itself. The suit filed by Shri Krishna Janmabhoomi Mukti Nirman Trust alleges that the Shahi Idgah mosque is built over the Sri Krishna Janmabhoomi, and therefore, seeks the mosque to be removed. It further alleges that the agreement made in the year 1968, pertaining to the land is illegal.

The trial court in the impugned order dated March 31, 2023, had noted that the application filed by the defendant in the suit under Order 7 Rule 11 CPC does not have to await the application of the plaintiff under Order 26 Rule 9 CPC. Aggrieved by the same, the present petitioner preferred a revision petition under Article 227 of the Constitution of India. In the interregnum period, the High Court passed an order dated May 25, 2023 transferring the same before the High Court to be tried by the High Court. This was highlighted before the Single judge, who dismissed the petition in its order dated July 10, 2023 finding no error in the order of the trial court.

A bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia while dismissing the SLP observed, "We are conscious of the fact that all related proceedings including the suit in question, stands transferred to the High Court by an order dated 26-05-2023. However, the trial court passed the order before such transfer took place, and it cannot be said that the trial court did not have the jurisdiction to pass such an order. The High Court on transfer of all the cases will do the trial and be the court of instance. That being the position it cannot urged as the counsel for the petitioner submits that the said court alone should have exercised the jurisdiction as the revisionary court also 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 relating to order 26 rule 9 CPC should be decided first, whether this suit should await that proceedings, are all matters to be considered by the High Court on transfer of the matters".

Accordingly, the bench further observed, "Thus we feel that we are not required to exercise jurisdiction under Article 136 of the Constitution of India, more so in the interim order, as there are various issues at large which are pending before the High Court as a court of first instance. We may note the submission of the learned counsel for the respondent that against the order dated 26-05-2023 an SLP is pending before this court. Thus, what we have observed aforesaid is without prejudice to the rights and contentions of the respondent in that SLP".

Senior Advocate Gaurav Bhatia appeared for the petitioner, and Advocate Tasneem Ahmadi appeared for the respondent.

Bhatia appearing for the Trust, at the outset argued that the High Court ought to have applied its mind while it was considering the revision application challenging the trial court's order.

To which, noting that a transferred court cannot become the revisionary court against the High Court order, Justice Kaul asked, “How can the High Court which is trying the suit now also sit in revision over an order of the trial court in the same matter?”.

In the present case, the applicants (petitioner herein) filed a suit before the High Court for declaration, injunction, and right to worship at the site of Shri Krishna Janmasthan and also to seek the removal of the present structure alleged to be Shahi Eidgah Mosque. The suit was registered in the court of the Civil Judge (Senior Division), Mathura.

The applicants had requested via their plea that the original trial be conducted by the High Court itself like the Ayodhya dispute. The counsel for the applicants had explained before the Court the historical and religious nature of the suit and claimed that the history of 'Karagar' (jail) of Kans wherein Lord Krishna incarnated in human form, is sacred and divine for the Hindu devotees.

It is to be noted that a Single Bench of Justice Arvind Kumar Mishra of the Allahabad High Court, noting that as many as 10 suits are stated to be pending before the civil court, ordered, “Let the District Judge, Mathura prepare a list of all such cases of similar nature involving the subject matter and touching upon its periphery, expressly or by implication include particulars of such cases and these suits/cases along with record, as above, shall be duly forwarded to this Court within two weeks and the same shall stand transferred to this Court in exercise of suo motu powers of this Court.”

Cause Title: Shri Krishna Janambhoomi Mukti Nirman Trust v. Shahi Masjid Eidgah Management Committee

Justice Sanjay Kishan KaulJustice Sudhanshu DhuliaKrishna Janmabhoomi SuitShahi Idgah Mosque

Agatha Shukla