Issue under consideration : Order of the High Court dismissing the appeal against an order of the District Judge directing an archeological survey of the area in which the Gyanvapi Mosque is situated. Code of Civil Procedure, 1908 – Application u/s.75(c) and Or.26, r.10A of CPC allowed by the District Judge, directing ASI to undertake a scientific survey of the property – High Court affirmed the said order subject to certain observations made and affidavit filed by the ASI – Propriety of:
Held : The High Court had clarified that while it was affirming the order dated 21.07.2023 of the District Judge, it was subject to the observations of the High Court and the contents of the affidavit which was filed on behalf of ASI – Before the High Court, ASI had clarified on affidavit that it was neither carrying out any excavation nor would the survey involve any destruction of the property – It was apparent from the directions of the District Judge that there would be excavation at the site – However, the High Court had circumscribed the nature of the order passed by the District Judge – High Court permitted the proposed survey since the Department of Archeology had expressly stated that no damage would be caused to the property in question – Thus, the direction of the High Court is reiterated that there shall be no excavation at the site or any destruction of the structure – In addition, it is directed that the entire process to be conducted by any noninvasive methodology that may be adopted by the ASI. [Paras 9, 16 and 17] Code of Civil Procedure, 1908 – Or.XXVI, r.10A – Exercise of discretion by the District Judge:
Held : The District Judge while acting as a trial Judge in the suit exercised discretion under Order XXVI Rule 10A to direct a scientific investigation by the ASI – The order of the Trial Judge under Order XXVI Rule 10A cannot prima facie be construed to be without jurisdiction – The High Court also had found no reason to interfere – However, certain safeguards were introduced by the High Court. [Para 15] LIST OF CITATIONS AND OTHER REFERENCES
M Siddiq (Dead) Through Legal Representatives vs Mahant Suresh Das and Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Committee of Management Anjuman Intezamia Masajid, Varanasi vs Rakhi Singh and Others SLP (C) No 11351 of 2023; Mohd Aslam Alias Bhure vs Union of India and Others (1994) 2 SCC 48 – referred to.
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