New Delhi: Not satisfied with the proceedings of the Gyanvapi mosque case in a Varanasi court, the Supreme Court on Friday transferred the adjudication of the suit filed by the five-Hindu women plaintiffs from a Varanasi civil judge to a district judge. The apex court ordered the district judge to decide on priority the application by the committee of management of Anjuman e-Intezamia Masjid Varanasi challenging the maintainability of the suit under Order 7, Rule 11 of Civil Procedure Code (CPC). The mosque committee is contending that the suit is in the teeth of the Places of Worship Act 1991 and therefore barred.
Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected "where the suit appears from the statement in the plaint to be barred by any law."
Relieving the Varanasi civil judge from adjudicating the suit, Justice D.Y. Chandrachud, heading a bench also comprising Justices Surya Kant and Pamidighantam Sri Narasimha, said that in view of the complexity of the matter, a "senior and experienced" judicial officer of the Uttar Pradesh higher judicial service should examine the case.
"A slightly more seasoned and mature hand should hear this case. We are not making an assertion on the trial judge. But a more seasoned hand should deal with this case and it will benefit all the parties," the court said in the course of the hearing.
Entrusting the case to Varanasi district judge, the top court said that the May 16 ex-parte order passed by the civil judge sealing the area where "shivling" is found and restricting the entry of Muslims for offering prayers is subsumed in its (the top court's) May 17 order.
Justice Chandrachud said, “Our order is to maintain a certain degree of peace and calm and our interim order calms some frayed nerves with some healing touch. We are on a joint mission to preserve a sense of unification in the country.”
The order passed after nearly 45 minutes hearing, said that the Varanasi district judge will make appropriate arrangements for “wuzu” - washing hands and feet before offering prayers.
The top court said that its May 17 order to protect the shivling in the Gyanvapi Masjid without in anyway impeding the entry of Muslims in the mosque for offering prayers will remain in force till Varanasi district judge decides on the challenge to suit by the five-Hindu women plaintiff under Order 7, Rule 11 CPC. The court added that its May 17 will continue for another eight weeks after the decision, as either of the aggrieved parties may pursue legal remedies.
Today’s hearing in the Supreme Court saw solicitor general Tushar Mehta, senior lawyers Huzefa Ahmadi, C.S.Vaidyanathan and Ranjit Kumar appearing for different parties. While the solicitor general appeared for the Uttar Pradesh government, Mr Ahmadi represented the committee of management of the Varanasi mosque, Mr Vaidyanathan and Mr Kumar appeared for the five Hindu women plaintiffs who instituted the suit.
Drawing the attention of the top court over the "selective" leaks of the videos of the survey, Mr Ahmadi said a "narrative" that is capable of creating great public mischief is being sought to be created.
Mr Ahmadi regretted that the trial court, by its different orders, had changed the status quo that was being maintained for the last 500 years and it was clearly in breach of the provisions of the Places of Worship Act, 1991. He said that the 1991 law was enacted to prevent such situations from arising.
"What was being described as shivling was in fact a fountain where Muslims performed wuzu before offering prayers," Mr Ahmadi told the SC and sought restoration of that spot to Muslims.
Opposing the plea for restoration, Mr Mehta told the court that it could create a communal situation.
A good part of the hearing today was in the nature of a dialogue between the bench and Mr Ahmadi on the course to be followed. The apex court said that it will keep the appeal – challenging the survey of the mosque, the appointment of a court commissioner to conduct the survey and the ex-parte order of May 16 – by the mosque management committee pending and ask the Varanasi court to hear a challenge to the maintainability of the suit under Order 7, Rule 11 CPC.
The court said that if the mosque committee succeeds in its challenge to suit under Order 7, Rule 11 CPC, then all orders passed, including the order of survey, the appointment of court commissioner and the May 16 order will go.
"We don’t want the (adjudication) of Order 7, Rule 11 CPC to be put on back burners and the (Varanasi) court to deal with other issues, '' Justice Chandrachud said, pointing to the correctness of the course being suggested by them.
The court posted the matter for further hearing in the second week of July, after the summer vacation of the top court.
