Prayagraj, Dec 15 – In an important decision, the Allahabad High Court on Thursday admitted an application to appoint an advocate commission to survey the premises of Shahi Eidgah complex in Mathura related to Shri Krishna Janmabhoomi and Shahi Eidgah mosque dispute.
The order was passed by the bench of Justice Mayank Kumar Jain in the original suit of 2023 of Bhagwan Shrikrishna Virajman At Katra Keshav Dev and seven others versus Uttar Pradesh Sunni Central Waqf Board and three others.
The bench said, “Considering the facts of the case, preposition of the law, the arguments advanced by the counsel for the parties, the observation made by the Apex Court and the HC, the application 130C moved by plaintiffs under Order 26 Rule 9 and 10 read with section 151 of the Code of Civil Procedure (CPC) deserved to be allowed. Accordingly, the application 130C of the plaintiff to appoint commission is hereby allowed.”
The court observed that from the texture of the languages coined in Rule 9 to Order 26 CPC, it is explicit that it does not make any distinction between the plaintiff and the defendant or it does not have any reference to show that a particular party either the plaintiff or the defendant alone shall apply with a prayer to appoint an Advocate Commissioner.
It said, “What it transpires is, where the court deems a local investigation to be requisite or proper in any suit for the purpose of elucidating any matter, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court.”
It observed that the expression ‘elucidate’ means to make lucid or clear, throw light upon, explain, enlighten. “Where the court is satisfied on the materials available on the record that a party is not able to produce the desired evidence for reasonable circumstances, it may assist the party to appoint a ‘Commissioner’ to get the evidence,” it stated.
The court, however, stated that such evidence is not binding on the court, which is to appreciate the same along with other evidence. “The party can ‘countermand’ the evidence of the Commissioner’s report by giving any other evidence.”
The bench observed that the object of Order 26 Rule 9 CPC, is not to assist a party to collect evidence where it can get the evidence itself, but the real object is for elucidating any matter in dispute by local investigation at the spot.
The court said in the proceedings for appointment of commission by the court, the defendants can participate. “Moreover, if they feel aggrieved by the report of the commission, they have an opportunity to file their objections against the said report. The report filed by the commissioner is always subject to evidence of the parties and is admissible in evidence.”
The bench observed. “The commissioners are competent witnesses and they may be called for evidence during the trial, if desired by any party to the suit. The other party will always have an opportunity to cross-examine them.”
It said that it is also to be kept in mind that by appointment of a panel of three advocates as commission, either party would not suffer any harm or injury.
The bench said the commissioner’s report does not affect the merits of the case and noted that during the execution of the commission, the sanctity of the campus can be directed to be maintained strictly.
It also directed that no harm or injury should be caused to the structure in any manner.
The court said the commission was duty-bound to submit its “fair and impartial report” based on the actual status of the property. “The commission may also submit its discovery as to the existence of particular signs at the property as referred to by the plaintiffs.”
The court allowed the representative of the plaintiffs, as well as the defendant, to accompany the panel of advocates to be appointed as commission to assist them so that the correct position of the spot may be noted and brought before the court.
It stated, “So far as the objections raised by counsel for defendants about the cause of action is concerned, it is a settled law that the cause of action is to be proved by the plaintiffs by evidence otherwise their suit will fail. The cause of action is a bundle of facts which the plaintiff has to prove to succeed in his suit.”
The bench observed, “At the time of disposal of the application for the appointment of Commission the cause of action is not to be examined since burden of proof lies upon the plaintiffs to prove their cause of action by evidence, which stage shall arise only, later.”
It stated, “So far as the argument of the learned counsel for the defendants is concerned, that the suit was filed in the year 2020 and the application for appointment of Commission is preferred in the year 2023 and no reason is assigned by the plaintiffs for such delay, this court does not find any substance in this argument in view of the chain of proceedings from filing of the suit before the trial court, its rejection, proceedings before the revision court and thereafter registration of original suit on May 26, 2022.”
It said, “Thereafter, all the suits pending before the trial court involving the same subject matter were transferred to this Court which is not disputed on behalf of the defendants. The application for appointment of commission is filed by the plaintiffs on the first date of hearing before this court. Moreover, the application for appointment can be moved by any party to the suit at any stage and any time during the pendency of the suit. Even otherwise, if the application for appointment of commission is allowed by this court, the rights of the defendants would not be prejudiced in any way.”
The bench observed. “Therefore, it is concluded that the prayer for appointment of commission by the plaintiffs cannot be refused on the ground that it is filed after a delay of almost three years. Considering the facts of the case, preposition of the law, the arguments advanced by the learned counsel for the parties, the observation made by Hon’ble Apex Court and this Court, the application 130C moved by plaintiffs under Order 26 Rule 9 and 10 read with section 151 of the Code deserved to be allowed.”
It ordered, “Accordingly, the application number 130 C of the plaintiffs to appoint commission is hereby allowed. So far as the modalities and composition of the commission is concerned, this court feels it proper to hear the counsel for the parties for such purposes. Let this matter be listed on December 18 for hearing.”
It may be noted that in the application moved by the plaintiff, its counsel Vishnu Shankar Jain submitted that there are several signs which establish that the building in question is a Hindu temple. He claimed that a Kalash could be observed on the top of the building and the pinnacle exemplifies Hindu architectural style.
It was claimed that a pillar existed above the main gate with a lotus-shaped top and the image of Lord Sheshnag is etched on the wall of the current structure.
It was argued that the proper adjudication of the dispute without the actual and factual position of the building was not possible. It was stated that the evidence available on the building could be placed before the court only through photograph and videography to be conducted by the commission appointed by the court and all such evidence cannot be proved or brought on record only by adducing oral evidence.
It was prayed that it would be expedient in the interest of justice to appoint a panel of three advocate commissioners with certain directions. It was claimed that the appointment of the commission and submission of a report of the disputed property is not going to cause any harm or injury to any party to the suit, rather it would facilitate and crystallise each and every issue in the matter.
