Gyanvapi Mosque - Kashi Vishwanath Temple dispute: Allahabad High Court upholds order directing videography of site

In the Gyanvapi mosque - Kashi Vishwanath temple dispute, the Allahabad High Court on Thursday dismissed a petition challenging the orders of a lower court which had appointed a court commissioner to inspect the site at Varanasi to which Muslims and Hindus have laid claim for right to worship [Anjuman Intezamia Masajid vs Rakhi Singh & 8 others].Single-judge Justice JJ Munir was hearing a petition filed by Anjuman Intezamia Masajid, Varanasi, taking exception to the claim of nine persons led by one Rakhi Singh, who had moved a civil court seeking declaration that their right to profess their religion as guaranteed under Article 25 of the Constitution is breached.The Anjuman Intezamia Masajid, claimed Muslims have been offering prayers (Namaaz) at the site in question for over 600 years and that there is a Mosque at the site.However, the respondents Rakhi and others have claimed that there are deities such as Maa Gauri, Lord Ganesh and Hanuman etc at the site and that the Hindus should be allowed to enter the site and offer their prayers and perform pooja and offer bhog to their deities..The civil judge after hearing the contentions had passed an order on August 18, 2021 appointing an advocate commissioner. The judge had also ordered the commissioner to visit the site and inspect and collect evidence as to whether the deities as contended by Rakhi, exist at the site. The commissioner was further given liberty to seek police force assistance in case of any disturbance or resistance to collection evidence by virtue of videography.The petitioner-Masajid board moved High Court contending that the civil judge ought not have appointed a court commissioner. It was also contended that the court shouldn't have granted liberty to seek police assistance even before the commissioner could visit the site.Justice Munir, however, dismissed the petition summarily, saying the contentions of the petitioner board are ill-founded."Apparently, the suit claims the existence of the named Deities on the property in dispute and that is a kind of evidence that would fall under the exception to the normal rule for issue of a commission, spoken of in K. Raghunath Rao's case. The existence or non-existence of the deities on the property in dispute is a matter about which the parties under the circumstances can hardly produce evidence. Even otherwise, it is evidence which is to be found on the spot where the disputed property exists and can be best gathered therefrom. If the Court has exercised its discretion to issue a commission, so that evidence about the fact in issue can be collected, it cannot be said that the order is beyond jurisdiction of the Court under Order XXVI Rule 9 of the Code of Civil Procedure," the High Court said. It further said that in certain instance it becomes necessary to secure evidence on the spot which parties cannot produce and a court commissioner can be tasked with the same. "It is not always that a commission is issued to elucidate evidence already on record. There can be cases where it is necessary to secure evidence, which is available on the spot and the parties cannot produce it. The commission issued here clearly falls into that category. Quite apart, the commission does not, in any way, impinge upon the rights of the petitioner. If anything is said in the report of the Advocate Commissioner that the petitioner or any other defendant to the suit feels is contrary to the spot position, he can always object to the Commissioner's report, which would then be a subject matter for decision by the Court on the basis of evidence on record," the judge opined..Senior Advocate Sayed Ahmed Faizan appeared for the petitioners.Advocate Hari Shankar Jain appeared for the respondents. .[Read Order]