The Allahabad High Court held that the State Government's actions since 1993, restraining the Vyas family and devotees from performing religious worship and rituals at the Gyanvyapi temple complex, constituted a continuous wrong.

These appeals, filed under Order XLIII Rule 1(s) of the Civil Procedure Code, stem from orders issued by the District Judge of Varanasi in response to an application filed under Order XL Rule 1 of the CPC in Original Suit.

The plaintiff filed the Original Suit in the Court of Civil Judge (Senior Division), Varanasi claiming various reliefs related to the performance of rituals and worship at the temple complex of Lord Adi Visheshwar, also known as the alleged Gyanvapi Mosque, situated at Settlement Plot. The suit was filed against the State Government and district administration alleging infringement of fundamental rights under Article 25 of the Constitution of India.

A Bench of Justice Rohit Ranjan Agarwal held, “I find that act of the State Government since year 1993 restraining Vyas family from performing religious worship and rituals and also by the devotees was a continues wrong being perpetuated.”

The plaintiff asserted his hereditary right as a pujari (priest) of Sri Vyaspeeth within the temple complex, tracing back to his ancestors.

The defendants, however, disputed the plaintiff's claims, asserting ownership and control over the property, citing historical precedents and legal judgments, including a decision in 1937 declaring the disputed property as a mosque.

The Court found that the evidence, including a historical map and a Commissioner's report, supported the plaintiff's claim. The Court said, “Plaintiff’s contention cannot be discarded at the stage of appointment of Receiver in view of documents placed demonstrating worship being carried out in Vyas Ji tehkhana (cellar) by Vyas family since British era having been abruptly stopped in December 1993, when the disputed area of Settlement Plot No. 9130 was barricaded and iron[1]fenced subsequent to the demolition of Babri Mosque in the year 1992

The order passed on application 9-C on January 31, 2024, alleged to have been made by the lower court under Section 151/152 of the Civil Procedure Code (CPC). The appellant argued that only clerical and arithmetical mistakes or errors arising from accidental slip or omission can be corrected by the court on its own motion or on application by a party.

The Court explained Section 151 of the CPC provides inherent power to the court to make orders necessary for the ends of justice or to prevent abuse of the court's process, while Section 152 deals with the amendment of judgments, decrees, or orders to correct clerical or arithmetical mistakes or errors arising from accidental slip or omission.

The Court held, “The omission/mistake, which was sought to be corrected does not affect the merit of the case, as application 9-C was allowed in entirety on 17.01.2024, where both the prayers were made by the plaintiff, and only first prayer finds mention in the order.

The Court emphasized that when the CPC was silent on a procedural aspect, the inherent power of the court can be invoked to ensure justice between the parties. This power is not restricted to correcting errors made by ministerial staff but extends to correcting judgments pronounced and signed by the court itself.

The Court cited various precedents and legal principles to support its decision to rectify the omission in the order dated January 17, 2024, which granted relief (a) but omitted relief (b).

The Court held, “I find that there is no illegality or mistake committed by the Court below while appointing Receiver under Order XL Rule 1 CPC on 17.01.2024 and, thereafter, directing for arranging worship in Vyas Ji tehkhana (cellar) on 31.01.2024 in view of the application 9-C having been allowed earlier and forming part of the earlier order

Additionally, the Court discussed the duties of the Board of Trustees of the Sri Kashi Vishwanath Temple under the Temple Act, 1983, emphasizing the obligation to ensure proper worship and rituals according to Hindu scriptures. The Court added, “Failure of appellant to establish prima facie possession over the disputed property, and plaintiff succeeding in building up a strong prima facie case negating the stand of appellant, leads to undeniable situation that stopping worship and performance of rituals by the devotees in the cellar would be against their interest.”

The Court concluded that allowing worship in the cellar under the Receiver's supervision aligns with the duties of the Board of Trustees and serves the interests of justice. The Court added, “I find that allowing worship and rituals in the cellar under the supervision of Receiver appointed by the Court below requires no interference by this Court. The possession of cellar was already taken by the Receiver on 24.01.2024 and the worship and rituals have already started from 01.02.2024.”

The Court said, “Appellant having not claimed the cellar at any point of time from Vyas family after 1937 till December 1993 leads to adverse inference against them as to possession over the cellar. Plaintiff has been successful in prima facie establishing their possession through Vyas family since 1551.

The Court further added, “I find that there is no force in the argument led from the appellant side as to the appointment of the District Magistrate, Varanasi as a Receiver of the property in question pending litigation. Moreover, no malice in law or malice in fact, can be or has been imputed to the District Magistrate, Varanasi in the instant case

The Court said that concerns about non-joinder of necessary parties and mis-joinder of defendants should be raised in the written statement, and the issue of res judicata does not apply as the orders were corrected to rectify an omission. The Court added, “I find that the question of limitation is a mixed question of law and fact, and once the appellant has not filed his written statement and issues have not been framed, this Court cannot go into the such question leaving it open to the appellant to raise such question when the issues are framed

The Court dismissed both appeals challenging the orders appointing the District Magistrate as Receiver and allowing worship in the cellar.

Cause Title: Committee Of Management Anjuman Intezamia Masajid Varanasi v. Shailendra Kumar Pathak Vyas & Anr., [2024:AHC:32769]


Appellant: Advocates S.F.A. Naqvi, Syed Ahmed Faizan, Zaheer Asghar

Respondents: Advocates Hari Shanker Jain, Vishnu Jain, Prabhash Pandey, Pradeep Kumar Sharma,Vineet Sankalp.

Click here to read/download Judgment