The Allahabad High Court has dismissed the petition of Shri Krishna Janambhoomi Mukti Nirman Trust.
A Single Bench of Justice Jayant Banerji passed this order while hearing a petition filed by Shri Krishna Janambhoomi Mukti Nirman Trust.
The petition has been filed with the following prayer:
“(i) Issue a writ, order or direction to set aside the order dated 31.03.2023 passed by Civil Judge, Senior Division, Mathura in Civil Case No 12/2023 (Shri Krishna Janam Bhoomi and others Vs Sahi Masjid Eidgah and others).
(ii) Issue a writ, order or direction in nature of mandamus directing the respondents to decide the application filed by the plaintiff under Order XXVI Rule 9 before the disposal of Order VII Rule 11 application.
(iii) Issue any other suitable writ, order, or direction as the Court may deem fit and proper in the facts and circumstances of the case.
(iv) Award the cost of the petition to the plaintiff.”
Counsel for the petitioner has stated that in a judgment and order dated 26.5.2023 passed by the Court in Transfer Application (Bhagwan Shrikrishna Virajman And 7 Others Vs U.P Sunni Central Waqf Board And 3 Others), the Court, while allowing the transfer application, has directed the District Judge to 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 the Court within two weeks and the same shall stand transferred to this Court in exercise of suo motu powers.
It is stated that pursuant thereto, among other suits, the Suit (Shri Krishna Janambhoomi Mukti Nirman Trust and others Vs Sahi Masjid Eidgah Management Committee and others), that is pending before the court of the Civil Judge (Senior Division), Mathura, has also been transferred to the court and therefore, the case be connected with that case.
The Court noted that the petition has been filed under Article 227 of the Constitution of India and the several suits including Suit have been transferred to the Court and therefore, the Court conducting the trial in the aforesaid suits that have been transferred to the Court would have no jurisdiction to adjudicate on the petition. As such, the request of the counsel for the petitioner is refused.
By the impugned order dated 31.3.2023, it appears that an application 31 filed by the defendant no 1 on the ground that before further proceedings, the application filed under Order 7 Rule 11(d) of the Code of Civil Procedure dated 8.2.2023 be decided first, has been allowed.
It is contended by the counsel for the petitioner that an application 41 was filed by the plaintiff-petitioner for rejecting the application of the defendant-respondents and that an independent/competent authority be directed under Order 26 Rule 9 of the CPC for an office survey and to constitute a scientific commission.
It is contended that without considering the application 41 T filed by the plaintiff-petitioner, the impugned order has been passed.
Puneet Kumar Gupta, counsel for the defendant- respondent has opposed the petition.
The Court further noted that,
Counsel for the petitioner states is the application of the plaintiff-petitioners bearing Paper No 41 T. A perusal of the application 41 T that is stated to be filed in opposition to the application 31 reveals that the reliefs sought for therein are that (a) the application of the defendant- respondents be rejected, and, (b) in the interest of justice under Order 26 Rule 9 of CPC the Court direct that, through an independent/competent authority, an office for survey and a scientific commission be constituted, which can inform the Court about the correct position.
As such, the purpose of a Commission is to make local investigation for the purpose of elucidating any matter in dispute the Court can direct the Commissioner to make such investigation and to report thereon to Court which report, when proved, would have evidentiary value. The procedure of the Commissioner is provided in Rule 10. Rule 10-A provides for Commission for scientific investigation. The aforesaid provisions of Order 26 provide a mechanism to gather evidence.
Order 7 Rule 11 of the CPC provides for rejection of plaint. Apparently, the application 20 T has been filed under Clause (d) of Rule 11, which provides for rejection of plaint where the suit appears from the statement in the plaint to be barred by any law
The Court said that it is settled law that for the purpose of considering an application under Order 7 Rule 11 of the CPC, only the entire plaint is required to be seen. No other pleading nor any evidence may be considered by the court while adjudicating in respect of an application under Order 7 Rule 11.
“As regards the second prayer made in the petition, it is prerogative of the trial court to proceed in the manner it deems fit unless there is an 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.
Under the facts and circumstances, I see no such error or illegality in the impugned order dated 31.3.2023 that may merit interference in exercise of jurisdiction under Article 227 of the Constitution of India”, the Court observed while dismissing the petition.