IMPORTANT POINT
Appointment of Advocate Commissioner for inspection of Gyanvapi premises – Report of Commissioner does not by and of itself amount to a substantive finding on matters in dispute and is subject to process of court during course of trial.

JUDGMENT :

Dhananjaya Y Chandrachud, CJI.

1. The proceedings under Article 136 of the Constitution have been initiated to challenge an order of the High Court of Judicature at Allahabad dated 3 August 2023. The High Court dismissed the appeal against an order of the District Judge directing an archaeological survey of the area in which the Gyanvapi Mosque [Settlement Plot No. 9130] is situated.

2. The respondent-plaintiffs filed a suit (Civil Suit No. 18 of 2022) seeking a declaration that they were entitled to perform rituals of deities which are allegedly present within the premises of the Gyanvapi mosque. The respondents also filed an application under Section 75 and Order XXVI Rules 9 and 10 read with Section 151 of the Civil Procedure Code 1908¹[“CPC”] for the appointment of an Advocate Commissioner for inspection of the premises. The petitioner-defendant moved an application under Order 7 Rule 11(d) of the CPC for the dismissal of the suit on the ground that it is barred by the provisions of the Places of Worship (Special Provision) Act 1991.

3. The application seeking the appointment of the Advocate Commissioner was allowed by the Civil Judge. The appeal against the order of the Civil Judge was dismissed by the High Court by an order dated 21 April 2022. The petitioners instituted proceedings (SLP No. 9388 of 2022) under Article 136 challenging the order of the High Court. In the meanwhile, the Advocate Commissioner submitted a report recording that a Shivaling was found in the premises of the mosque. By an order dated 16 May 2022, the Civil Judge directed the place where the Shivaling was allegedly found be sealed. This Court by an order dated 17 May 2022 directed the order of the Civil Judge dated 16 May 2022 shall not restrain the access of Muslims to the mosque or the use of the mosque for the purpose of performing Namaz. By another order dated 20 May 2022, this Court directed that the application filed by the petitioner under Order VII Rule 11 of CPC be decided on priority.

4. The District Judge dismissed the application of the petitioner under Order VII Rule 11. The appeal against the order dismissing the application was dismissed by the High Court by an order dated 31 May 2023. The Special Leave Petition challenging the order of the High Court dismissing the Order 7 Rule 11 application of the petitioner is pending before this Court.

5. Meanwhile, the respondents filed application nos. 327C and 333C under Section 75(c) and Order 26 Rule 10A of the CPC seeking a direction to the Director of the Archaeological Survey of India (ASI) to undertake a scientific survey of Settlement Plot No 9130 for the purpose of ascertaining the nature of the construction and the age of the structure. The District Judge allowed the applications and directed the ASI to “undertake the scientific investigation/survey/excavation on the property bearing Settlement Plot No 9130”, excluding certain areas which were sealed by the orders of this Court dated 17 May 2022, 20 May 2022 and 11 November 2022. The District Judge while allowing the applications issued the following directions:

“(a) The Director of ASI is directed to undertake the scientific investigation/survey/excavation at the property in question i.e. at Settlement Plot No.9110 in the case excluding the areas scaled by the Hon'ble Supreme Court vide order dated 17.05.2022, 20.05.2022 as well as vide order dated 11.11.2022 in SLP(C) No.9388/2022 tilled as Committee of Management Anjuman lntejamia Masajid Varanasi vs. Rakhi Singh & Ors.;

(b) The Director of ASI is also directed to conduct a detailed scientific investigation by using GPR Survey, Excavation, Dating method and other modem techniques of the present structure to find out as to whether same has been constructed over a pre-existing structure of Hindu temple;

(c) The Director of ASI is also directed to conduct scientific investigation in the light of the averment made in this application after associating the Plaintiffs, Defendants an