# C/M Anjuman Intezamia Masajid Varanasi v. Shailendra Kumar Pathak & Anr

- **Citation:** (2024) 3 ILRA 1729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-26
- **Case number:** First Appeal from Order No. 226 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-anjuman-intezamia-masajid-varanasi-v-shailendra-kumar-pathak-anr-51602
- **Pages:** 37

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order XL Rule 1, Sections 151 & 152 -
Appointment
of
Receiver
-
Interlocutory
Mandatory Injunction - Appeals under Order
XLIII Rule 1(s) challenging orders dated
17.01.2024 and 31.01.2024 appointing District
Magistrate, Varanasi as Receiver for Vyas Ji
Tehkhana (cellar) and directing worship/rituals -
Held, appointment of Receiver justified as
plaintiff established strong prima facie case of
possession by Vyas family since 1551, supported
by map in Din Mohammad case (1937) and
Commissioner's report (1996) - No evidence of
appellant's possession - Order dated 31.01.2024
correcting omission of relief (b) valid under
Sections 151/152 CPC, rectifying accidental slip
(actus curiae neminem gravabit) - Interlocutory
mandatory
injunction
to
restore
worship
(stopped in 1993) upheld, restoring status quo
ante, not final relief - No clash of interest in
District Magistrate's role as Receiver and exofficio member of Kashi Vishwanath Trust Board
- Pleas of limitation, res judicata, and nonjoinder/mis-joinder premature without written
St.ment or framed issues - Dorab Cawasji
Warden guidelines satisfied . (Para 61-165)

Appeals dismissed.

List of Cases Cited:

## Text

_Characters 0–39,825 of 124,899. This is a partial read: ask again with offset=39825 for what follows._

3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1729

12. The powers of the inquiry court
are not fettered in any manner and it may
call the witnesses, if in its view their
evidence may prove useful for just decision
in the matter for the purpose of summoning
the accused persons.

13. In the instant matter, the learned
trial court as well as the court of revision,
ignored the important provisions of law
under section 202(2) Cr.P.C. The approach
of the Courts was casual and cavalier. Even
the doctor who had examined the injured
was not summoned. His examination was,
quite important to draw an inference
whether prima facie an offence under
section 307 IPC is made out against the
accused persons. Any summoning order
passed ignoring the mandatory provisions
of law is vulnerable and is liable to be setaside.

14. In view of the above, the petition
is allowed. The impugned orders are setaside. The matter is remanded back to the
trial court concerned for passing a fresh
order in accordance with law.
----------
(2024) 3 ILRA 1729
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

First Appeal from Order No. 226 of 2024
with
First Appeal from Order No. 227 of 2024

C/M Anjuman Intezamia Masajid Varanasi
 ...Appellant
Versus
Shailendra Kumar Pathak & Anr.
 ...Respondents
Counsel for the Appellants:
Sri Syed Ahmed Faizan, Sri Zaheer Asghar
Counsel for the Respondents:
Sri Prabhash Pandey, Sri Pradeep Kumar
Sharma, Sri Vineet Sankalp

Civil Law - Civil Procedure Code, 1908 -
Order XL Rule 1, Sections 151 & 152 -
Appointment
of
Receiver
-
Interlocutory
Mandatory Injunction - Appeals under Order
XLIII Rule 1(s) challenging orders dated
17.01.2024 and 31.01.2024 appointing District
Magistrate, Varanasi as Receiver for Vyas Ji
Tehkhana (cellar) and directing worship/rituals -
Held, appointment of Receiver justified as
plaintiff established strong prima facie case of
possession by Vyas family since 1551, supported
by map in Din Mohammad case (1937) and
Commissioner's report (1996) - No evidence of
appellant's possession - Order dated 31.01.2024
correcting omission of relief (b) valid under
Sections 151/152 CPC, rectifying accidental slip
(actus curiae neminem gravabit) - Interlocutory
mandatory
injunction
to
restore
worship
(stopped in 1993) upheld, restoring status quo
ante, not final relief - No clash of interest in
District Magistrate's role as Receiver and exofficio member of Kashi Vishwanath Trust Board
- Pleas of limitation, res judicata, and nonjoinder/mis-joinder premature without written
St.ment or framed issues - Dorab Cawasji
Warden guidelines satisfied . (Para 61-165)

Appeals dismissed.

List of Cases Cited:

1. Dorab Cawasji Warden Vs Coomi Sorab
Warden, (1990) 2 SCC 117

2. T. Krishnaswamy Chetty Vs C. Thangavelu
Chetty, AIR 1955 Mad 430

3. Dwaraka Das Vs St. of M.P., (1999) 3 SCC 500

4. Niyamat Ali Molla Vs Sonargon Housing
Cooperative Society Ltd., (2007) 13 SCC 421

5. Vareed Jacob Vs Sosamma Geevarghese,
(2004) 6 SCC 378

6. Satyanarayan Banerji Vs Kalyani Prosad Singh
Deo Bahadur, AIR 1945 Cal 387
1730 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Jet Ply Wood (P) Ltd. Vs Madhukar Nowlakha,
(2006) 3 SCC 699

8. Manohar Lal Chopra Vs Rai Bahadur Rao Raja
Ji Seth Hira Lal, AIR 1962 SC 527

9. Balasaria Construction (P) Ltd. Vs Hanuman
Sewa Trust, (2006) 5 SCC 658

10. Subramanian Swamy Vs St. of Tamil Nadu,
(2014) 5 SCC 75

(Delivered by Hon'ble Hon'ble Rohit
Ranjan Agarwal, J.)

1. These two appeals filed under
Order XLIII Rule 1 (s) of Civil Procedure
Code, 1908 (hereinafter called as 'CPC')
arise out of order dated 17.01.2024 and
order dated 31.01.2024 passed by the
District Judge, Varanasi on application 9-C
filed under Order XL Rule 1 CPC in
Original Suit No. 34 of 2023 (Shailendra
Kumar
Pathak
Vs.
Committee
of
Management Anjuman Intezamia Maszid
and another).

2. F.A.F.O. (Defective) No. 136 of
2024 (New Number 226 of 2024) was
nominated to this Court by orders of
Hon'ble
Acting
Chief
Justice
dated
01.02.2024. F.A.F.O. (Defective) No. 156
of 2024 (New Number 227 of 2024) was
nominated to this Court by the orders of
Hon'ble
the
Chief
Justice
dated
06.02.2024. F.A.F.O. No. 227 of 2024
arises out of order dated 17.01.2024, while
F.A.F.O. No. 226 of 2024 arises out of
order dated 31.01.2024 passed by the
District Judge, Varanasi.

3. Both these appeals are heard
together with the consent of both the parties
and are being decided together by a
common judgment and order.

FACTS

4. The facts leading to filing of these
two appeals are, that plaintiff respondent
no. 1, Shailendra Kumar Pathak 'Vyas'
filed an Original Suit No. 844 of 2023
before the Court of Civil Judge (Senior
Division), Varanasi against the appellant
defendant no. 1 and Board of Trustees of
Sri Kashi Vishwanath Temple as defendant
no. 2 claiming following reliefs;

"(a)
Decree
the
suit
for
declaration declaring that Plaintiff is
entitled to perform all the rituals of Maa
Sringar
Gauri,
Lord
Ganesh,
Lord
Hanuman and other visible and invisible
deities within old temple complex and also
within the cellar (Tehkhana) existing within
temple of Lord Adi Visheshwar (alleged
Gyanvapi Mosque) at Settlement Plot No.
9130 (Nine Thousand One Hundred Thirty)
Ward and P.S. Chowk District Varanasi,

(b) Decree the suit for permanent
injunction restraining the Defendants from
creating
any
obstacle,
hindrance
or
interference in performance of daily Pooja,
Aarti, Bhog and observance of all the
rituals of Maa Sringar Gauri, Lord Ganesh,
Lord Hanuman and other visible and
invisible
deities
within
the
cellar
(Tehkhana) existing within old temple of
Lord Adi Visheshwar (alleged Gyanvapi
Mosque) existing at Settlement Plot No.
9130(Nine Thousand One Hundred Thirty)
Ward and P.S. Chowk District Varanasi;

(c) Deerce the suit for permanent
injunction restraining the Defendants from
demolishing,
damaging,
destroying
or
causing any damage to the images of
deities Goddess Maa Sringar Gauri at
Asthan of Lord Adi Visheshwar along with
Lord
Ganesh,
Lord
Ganesh,
Lord
Hanuman, Nandiji and other visible and
invisible
deities
within
the
cellar
(Tehkhana) existing within old temple of
Lord Adi Visheshwar (alleged Gyanvapi
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1731
Mosque) existing at Settlement Plot No.
9130(Nine Thousand One Hundred Thirty)
Ward and P.S. Chowk District Varanasi;

(d) Decree the suit for mandatory
injunction directing Shri Kashi Vishwanath
Trust Board to allow the Plaintiff, coPujaris and the devotees to perform Pooja
and rituals within the cellar (Tehkhana)
within old temple of Lord Adi Visheshwar
(alleged Gyanvapi Mosque) existing at
Settlement Plot No.9130 (Ninety One
Hundred and Thirty) within the area of P.S.
Chowk, Varanasi after making suitable
provisions
and
if
required,
making
appropriate changes in the iron fencing for
the said purpose within the time provided
by the Hon'ble Court;

(e) Decree the suit for mandatory
injunction
directing
the
Shri
Kashi
Vishwanath
Trust
Board
to
act
in
accordance with Section 13 (Thirteen) and
14 (Fourteen) of Shri Kashi Vishwanath
Temple Act, 1983 (Nineteen Hundred
Eighty-Three) and to make provisions for
pooja and worship within cellar (Tehkhana)
existing within settlement plot No.9130
(Ninety-One Hundred and Thirty) of Shri
Adi Visheshwar Temple Complex (alleged
Gyanvapi mosque);

(f) Grant such other relief for
which the Plaintiff may be found entitled to
or which may be deem fit and necessary in
the interest of justice; and

(g) Decree the suit with costs in
favour
of
Plaintiff
and
against
the
Defendants;"

5. The plaint case is that there is a
Jyotirlinga established by Lord Shiva
himself in Kashi since time immemorial
where
stands
temple
of
Lord
Adi
Visheshwar which was constructed, and is
situated at settlement plot no. 9130. The
said temple is called by the defendant
appellant as Gyanwapi Mosque. There is a
tehkhana (cellar) in the southern side of
subject building which is the principal seat
of hereditary pujari of Vyas family i.e.
predecessors in interest of the plaintiff
respondent no. 1 from time immemorial.
According to them, plaintiff is entitled to
perform puja and other rituals in the same
manner which was being performed till the
year 1993 within and outside the tehkhana
(cellar). The suit was filed against the
action of the State Government and district
administration restricting the plaintiff to
enter into the temple and fundamental right
granted under Article 25 of the Constitution
of India being infringed.

6. The plaintiff is hereditary pujari of
Sri Vyaspeeth situated within the temple
and has been in continuous possession over
the same from time of his ancestors
performing various puja, rituals, katha and
other religious functions. The puja was
abruptly
stopped
by
oral
orders
in
November and December 1993 and the
temple complex was iron-fenced.

7. The family pedigree of Vyas family
has been given in paragraph no. 4 of the
plaint. The plaintiff by virtue of Will deed
dated 28.02.2000 executed by Sri Somnath
Vyas and Will deed dated 21.01.2014
executed by Pt. Chandra Nath Vyas is
entitled to continue in hereditary office of
pujari
and
perform
the
function
at
Vyaspeeth.

8. It is further averred that the temple
of Sri Adi Visheshwar Jyotirlinga which
stood
from
time
immemorial
was
damaged/destroyed and defiled number of
times by the invaders. Pt. Narayan Bhatt,
the Guru of Raja Todarmal, got constructed
and restored the temple which includes
mandaps, subsidiary deities, shrines, peepal
tree and several other objects of worship
1732 INDIAN LAW REPORTS ALLAHABAD SERIES
including the creation of Vyaspeeth for due
performance of rituals, puja and worship of
deities. It was in pursuance of Farman
issued by Aurangzeb in the year 1669 that
Sri Adi Visheshwar temple complex was
substantially
damaged.
The
Muslims
forcibly and without any authority of law
occupied the first floor of building to use
same as Mosque and since then it is called
Gyanwapi Masjid. After demolition, the
Hindus continued to worship over the
major portion including lower portion
which is called tehkhana (cellar) of the
temple complex.

9. It was in the year 1780-1790 that
Rani
Ahilyabai
Holkar
of
Indore
constructed a temple of Lord Shiva and
established a Shivalingam adjacent to old
temple which is called new temple and Sri
Adi Visheshwar temple as old temple.

10. In paragraph no. 16 of the plaint,
it has been averred that Case No. 30 was
decided in favour of predecessors-ininterest of plaintiff from the Court of
Assistant Magistrate on 11.08.1843, which
was contested between Jai Gopal 'Mukhtar'
of Musammat Rukmin Vs. Amanat Ali and
Wahid Ali. In paragraph no. 18 reference
has been given of Case No. 04 of 1852
decided on 12.05.1852 between Mahadeo
Beas (Vyas), Grandson of Musammat
Rukmin Vs. Amanat Ali. Further, in
paragraph no. 19 reference of Case No. 28
decided on 18.02.1886 by the District
Magistrate between Mutawalli Gyanwapi
Mosque and Laxmi Narayan Vyas in regard
to opening of doors and setting up
staircase, has been given. Paragraph no. 20
speaks
about
copy
of
order
dated
02.05.1906 forming part of record of Misc.
Case No. 3 has been given for complying
the order dated 26.03.1906.

11. Paragraph no. 21 of the plaint
discloses the order passed by the District
Magistrate, Varanasi in Case No. 65 dated
10.06.1925 relating to tehkhana (cellar)
possessed by Baba Raghunath Vyas and
also regarding tehkhana (cellar) within
northern side of the subject building.
Paragraph no. 26 of the plaint defines
Section 4 (9) of Sri Kashi Vishwanath
Temple Act 1983 (hereinafter referred as
the 'Temple Act of 1983'), which means
Temple of Adi Vishweshwar popularly
known as Sri Kashi Vishwanath Temple,
situated in the city of Varanasi which is
used as a place of public religious worship
and dedicated to or for the benefit of or
used as of right by the Hindus, as a place of
public religious worship of the Jyotirlinga
and includes all subordinate temples,
shrines, subshrines and the ashthan of all
other images and deities, mandaps, wells,
tanks and other necessary structures and
land appurtenant thereto.

12. In paragraph no. 33, it has been
alleged that in December 1993 the then
Pujari Sri Somnath Vyas was directed by
then District Magistrate not to enter into the
premises. Having no option left he locked
the door and tehkhana (cellar). It has been
further alleged that in Civil Suit No. 637 of
1996, Civil Judge, Varanasi on 27.07.1996
had appointed an Advocate Commissioner
to make survey. The survey was conducted
on 30.07.1996 and a report was submitted
in the Court. It was mentioned in the report
that two locks were put on the western side
of tehkhana (cellar), one by the district
administration and another by Sri Somnath
Vyas. The City Magistrate could not open
the lock as there was no order of the Court
to do so while Sri Somnath Vyas having
one key opened the lock.
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1733

13. In paragraph no. 45 of the plaint it
has been averred that the plaintiff and his
brother
had
executed
a
registered
Shebaitnama in favour of Mandir Trust on
25.02.2016 to the extent of half share of the
temple. In paragraph no. 66 it has been
stated that the cause of action arose on
17.09.2023, when the Muslim community
threatened that as soon as ASI team goes
they will capture the entire tehkhana
(cellar) of southern side of old temple and
would damage/destroy everything of Hindu
worship lying there.

14. An application under Order XL
Rule 1 CPC was filed by the plaintiff for
appointing Receiver of tehkhana (cellar) in
the southern side of building situated on
settlement plot no. 9130 and also a
direction was sought to direct the Receiver
to allow the plaintiff, co-pujaris, nominee
of Sri Kashi Vishwanath Trust Board and
devotees to perform pooja and rituals
within the same.

15. On 07.11.2023 an objection was
filed by the appellant defendant no. 1 to
application 9-C moved for appointing
Receiver on the ground that Vyas family
had never performed any puja in the said
premises. Further, no question arises as to
stopping them from performing their
religious rights since December 1993. It
was further averred that the tehkhana
(cellar) was in possession of the appellant
and there is no image of any God or
Goddess in the said tehkhana (cellar). In
paragraph no. 9 of the objection, it has been
stated that a Mosque exists on settlement
plot no. 9130 and is in possession of the
appellant from thousands of years.

16. In paragraph no. 10, it has been
stated that in the suit filed by one Din
Mohammad in the year 1936 being Suit
No. 62 of 1936 which was decided on
25.08.1937 by the Additional Civil Judge
the property in dispute has been declared as
Mosque and the courtyard with land
underneath are Hanafi Muslim Waqf. The
said decision exist till date and no question
arises for appointing any Receiver. In
paragraph no. 12, it has been stated that the
plaintiff who succeeded the shebiatship in
view of Will deed dated 28.02.2000
transferred their right in favour of temple
trust on 08.07.2016, thus, have no locus
standi
to
proceed
with
the
matter.
Moreover, in view of the decision rendered
in the year 1937 in case of Din Mohammad
no right of Vyas family survives over the
property in dispute.

17. By the orders of 27.10.2023 the suit
was transferred to the Court of District
Judge, Varanasi as Civil Suit No. 34 of
2023. The District Judge vide order dated
17.01.2024 allowed the application 9-C and
appointed District Magistrate, Varanasi as
Receiver for tehkhana (cellar) situated on
the southern side of the building on
settlement plot no. 9130 with the direction
that he will take the property in his custody
and control, and preserve the same during
pendency of suit without any change in the
nature of property. By the order dated
31.01.2024 the relief (b) sought in
application 9-C was added and the District
Magistrate, Varanasi/Receiver was directed
for arranging worship and rituals by priest
appointed
by
plaintiff
and
Kashi
Vishwanath Trust Board of the deities, in
the cellar. Hence, these appeals.

ARGUMENTS
FROM
THE
APPELLANT SIDE

18. Sri S.F.A. Naqvi, learned Senior
Counsel appearing for the appellant, while
laying challenge to both the appeals
1734 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that final relief cannot be granted
in a suit at initial stage, when neither issues
have been framed, nor written statement
has been filed and the evidences are yet to
be led by the parties. Reliance has been
placed upon the decision of Apex Court in
case of Bharat Sanchar Nigam Limited
Vs. Prem Chandra Premi, 2005 (13) SCC
505.

19. He next contended that the Court
below could not have passed the order
dated 17.01.2024 appointing Receiver
under Order XL Rule 1 CPC as there was
no cause of action at all for the plaintiff.
According to him the order appointing
Receiver was in teeth of orders dated
24.09.1993 passed in Writ Petition (Civil)
No. 611 of 1993 and order dated
14.03.1997 passed by the Apex Court in
Writ Petition (Civil) No. 131 of 1997 as
well as the order dated 17.08.1995 passed
in Writ Petition (Civil) No. 541 of 1995
(Mohd. Aslam @ Bhure Vs. Union of India
& Others) 1997 (5) SCC 575.

20. According to him the matter
relating to mosque and courtyard with the
land underneath already stood settled as
Hanafi Muslim Waqf in the judgment
rendered in Civil Suit No. 62 of 1936 (Din
Mohammad & Others Vs. The Secretary of
State for India in Council) decided on
25.08.1937. Once the cellar has been
declared as Hanafi Muslim Waqf, the
application 9-C could not have been
entertained and Receiver could not have
been appointed. The question regarding
cellar has already attained finality in view
of the decision in case of Din Mohammad
(Supra). He further contended that the
Order XL Rule 1 CPC does not apply in the
present case. Reliance has been placed
upon a decision of Madras High Court in
case of T. Krishnaswamy Chetty Vs. C.
Thangavelu Chetty, AIR 1955 Mad 430.

21. He next contended that once the
application 9-C was disposed off on
17.01.2024,
appointing
the
District
Magistrate, Varanasi as Receiver of the
property in dispute, subsequent order dated
31.01.2024 passed by the Court below was
illegal once application stood disposed off,
and no application was moved by the
plaintiff under Section 151 or 152 of CPC
for amending the judgment, decree or
order. Further, there was no clerical,
arithmetical mistake in the order or errors
arising therein from any accidental slip or
omission which the Court could have
corrected on its own motion. Reliance has
been placed upon the decision of Apex
Court in case of Dwaraka Das Vs. State of
M.P. & Another, 1999 (3) SCC 500.
Relevant paragraph no. 6 is extracted here
as under;

"6. Section 152 C.P.C. provides
for correction of clerical arithmetical
mistakes in judgments, decrees or orders or
errors arising therein from any accidental
slip or omission. The exercise of this power
contemplates the correction of mistakes by
the Court of its ministerial actions and does
not contemplate of passing effective
judicial orders after the judgment, decree or
order. The settled position of law is that
after the passing of the judgment, decree or
order, court or the tribunal becomes functus
officio and thus being not entitled to vary
the terms of the judgments, decrees and
orders earlier passed. The correction
contemplated
are
of
correcting
only
accidental omission or mistakes and not all
omissions and mistakes which might have
been committed by the Court while passing
the judgment, decree or order. The
omission sought to be corrected which goes
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1735
to the merits of the case is beyond the
scope of Section 152 for which the proper
remedy for the aggrieved party is to file
appeal or review application. It implies that
the Section cannot be pressed into service
to correct an omission which is intentional,
how erroneous that may be. It has been
noticed that the courts below have been
liberally construing and applying the
province of Sections 151 and 152 of the
CPC even after passing of effective order in
the Us pending before them. No Court can
under the cover of the aforesaid sections
modify, alter or add to the terms of its
original judgment, decree or order. In the
instant case, the trial court had specifically
held the respondents-State liable to pay
future interest only despite the prayer of the
appellant for grant of interest with effect
from the date of alleged breach which
impliedly meant that the court had rejected
the claim of the appellant in so far as
pendente lite interest was concerned. The
omission in not granting the pendente lite
interest could not be held to be accidental
omission or mistake as was wrongly done
by the trial court vide order dated 30th
November, 1973. The High Court was,
therefore, justified in setting aside the
aforesaid order by accepting the revision
petition filed by the State."

22. Reliance has been placed upon the
decision of Apex Court rendered in case of
My Palace Mutually Aided Copperative
Vs. B. Mahesh, 2022 LiveLaw (SC) 698,
and upon decision in case of UPSRTC Vs.
Imtiaz Hussain, 2006 (1) SCC 380, relevant
paragraph nos. 7 and 8 are extracted here as
under;

"7. Section 152 provides for
correction of clerical or arithmetical
mistakes in judgments, decrees or orders or
errors arising therein from any accidental
slip or omission. The exercise of this power
contemplates the correction of mistakes by
the Court of its ministerial actions and does
not contemplate of passing effective
judicial orders after the judgment, decree or
order. The settled position of law is that
after the passing of the judgment, decree or
order, the same becomes final subject to
any further avenues of remedies provided
in respect of the same and the very Court or
the tribunal cannot, on mere change of
view, is not entitled to vary the terms of the
judgments, decrees and orders earlier
passed except by means of review, if
statutorily provided specifically therefor
and subject to the conditions or limitations
provided therein. The powers under Section
152 of the Code are neither to be equated
with the power of review nor can be said to
be akin to review or even said to clothe the
Court concerned under the guise of
invoking after the result of the judgment
earlier rendered, in its entirety or any
portion or part of it. The corrections
contemplated
are
of
correcting
only
accidental omissions or mistakes and not
all omissions and mistakes which might
have been committed by the Court while
passing the judgment, decree or order. The
omission sought to be corrected which goes
to the merits of the case is beyond the
scope of Section 152 as if it is looking into
it for the first time, for which the proper
remedy for the aggrieved party if at all is to
file appeal or revision before the higher
forum or review application before the very
forum, subject to the limitations in respect
of such review. It implies that the Section
cannot be pressed into service to correct an
omission which is intentional, however
erroneous that may be. It has been noticed
that the courts below have been liberally
construing and applying the provisions of
Sections 151 and 152 of Code even after
passing of effective orders in the lis
1736 INDIAN LAW REPORTS ALLAHABAD SERIES
pending before them. No Court can, under
the cover of the aforesaid sections, modify,
alter or add to the terms of its original
judgment, decree or order. Similar view
was expressed by this Court in Dwaraka
Das v. State of Madhya Pradesh and Anr.
(1999 (3) SCC 500 and Jayalakshmi
Coelho v. Oswald Joseph Coelho (2001 (4)
SCC 181).

8. The basis of the provision
under Section 152 of the Code is founded
on the maxim 'actus curiae neminem
gravabit' i.e. an act of Court shall prejudice
no man. The maxim "is founded upon
justice and good sense, and affords a safe
and certain guide for the administration of
the law", said Cresswell J. in Freeman v.
Tranah (12 C.B. 406). An unintentional
mistake of the Court which may prejudice
the cause of any party must and alone could
be rectified. In Master Constitution Co. (P)
Ltd. v. State of Orissa (AIR 1966 SC 1047)
it was observed that the arithmetical
mistake is a mistake of calculation, a
clerical mistake is a mistake in writing or
typing whereas an error arising out of or
occurring from accidental slip or omission
is an error due to careless mistake on the
part of the Court liable to be corrected. To
illustrate this point it was said that in a case
where the order contains something which
is not mentioned in the decree, it would be
a case of unintentional omission or mistake
as the mistake or omission is attributable to
the Court which may say something or omit
to say something which it did not intend to
say or omit. No new arguments or rearguments on merits can be entertained to
facilitate such rectification of mistakes. The
provision cannot be invoked to modify,
alter or add to the terms of the original
order or decree so as to, in effect, pass an
effective judicial order after the judgment
in the case."

23. Reliance has also been placed
upon a decision of Apex Court rendered in
case of Plasto Pack, Mumbai Vs.
Ratnakar Bank Ltd. 2001 (6) SCC 683.
Relevant paragraph no. 12 is extracted here
as under;

"12. By order dated 3.3.1995
relief (a) set out in the plaint was granted
'as it was', without specifying the exact
decretal amount and the rate of interest
allowed by the Court. Such of the prayers
as were not granted by decree dated
3.3.1995 would be deemed to have been
refused and to that extent the suit shall be
deemed to have been dismissed. More than
two years and eight months later the Court
could not have, on a mere notice of motion,
substituted almost a new decree in place of
the old one by granting such reliefs as were
not granted earlier and that too without
noticing the defendant-appellants. As held
in K. Rajamouli Vs. AVKN Swamy, (2001)
5 SCC 37 power to amend a decree cannot
be exercised so as to add to or subtract
from any relief granted earlier. A case for
setting aside the decree was earlier made
out. In the facts and circumstances of the
case the Division Bench ought to have
taken a liberal view of the events and
entertained the appeal for consideration on
merits by condoning the delay in filing the
same. However, that was not done. We are
satisfied that grave injustice has been done
to the appellants by denying them an
opportunity of hearing and contesting the
suit on its merits. We are also of the
opinion that the respondent-bank ought to
have taken a reasonable stand and should
have
sympathetically
considered
the
proposal of the appellants which was not
lacking in bona fides and in the interest of
avoiding litigation and early recovery of
outstanding debts the respondent should
have compromised the suit. Even if the
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1737
appellants' proposal was not acceptable to
the respondent, at least a counter-proposal
should have been made in which case
across the table discussion between the
parties with the assistance of their learned
counsel would have brought out a mutually
accepted resolution and an end to the
litigation. We are constrained to observe
that this litigation is being perpetuated
because of the unreasonable and rigid
attitude of the respondent-bank."

24. Reliance has been placed upon a
decision of Apex Court rendered in case of
Metro Marines & Another Vs. Bonus
Watch Co. (P) Ltd. & Others, 2004 (7)
SCC 478. Relevant paragraph no. 9 is
extracted here as under;

"9.
Having
considered
the
arguments of the learned counsel for the
parties and having perused the documents
produced, we are satisfied that the
impugned order of the Appellate Court
cannot be sustained either on facts or in
law. As noticed by this Court in the case of
Dorab Cawasji Warden vs. Coomi Sorab
Warden (supra) has held that an interim
mandatory injunction can be granted only
in exceptional cases coming within the
exceptions noticed in the said judgment. In
our opinion, the case of the respondent
herein does not come under anyone of
those exceptions and even on facts it is not
such a case which calls for the issuance of
an interim mandatory injunction directing
the possession being handed over to the
respondent. As observed by the learned
Single Judge the issue whether the plaintiff
is entitled for possession is yet to be
decided in the Trial Court and granting of
any interim order directing handing over of
a possession would only mean decreeing
the suit even before trial. Once the
possession of the appellant either directly
or through his agent (caretaker) is admitted
then the fact that the appellant is not using
the said property for commercial purpose
or not using the same for any beneficial
purpose or the appellant has to pay huge
amount by way of damages in the event of
he loosing the case or the fact that the
litigation between the parties is a luxury
litigation are all facts which are irrelevant
for changing the status-quo in regard to
possession during the pendency of the
suit."

25. According to learned Senior
Counsel the provisions of Section 152 CPC
cannot be invoked to modify, alter or add to
the terms of original order or decree as to in
fact pass an effective order after the order
or judgment in a case. Liberal use of
Section 152 CPC is beyond the scope of
and has been deprecated by the Apex Court
in case of Jayalakshmi Coelho v. Oswald
Joseph Coelho 2001 (4) SCC 181.

26.

He
then
contended
that
appointment
of
District
Magistrate,
Varanasi, who being ex officio Member of
Board of Trustees as per Section 6 (2) (i) of
the Temple Act of 1983 creates clash of
interest in between the office of District
Magistrate, Varanasi, who hold overall
control over the city being executive head
as well as in-charge of revenue district. He
also contended that executive committee is
constituted under Section 19 (1) of the
Temple Act of 1983 which is to work
subject to direction of Board or the State
Government and is responsible for the
superintendence, direction and control of
the affairs of the temple. Section 19 (2)
provides for the Members of the Executive
Committee and the District Magistrate,
Varanasi is a Member of the Executive
Committee.
1738 INDIAN LAW REPORTS ALLAHABAD SERIES

27. Sri Naqvi then contended that
once it is a settled position that mosque and
courtyard with the land underneath are
Hanafi Muslim 'Waqf' any claim seeking
any relief regarding the land underneath
has to be decided in a proper suit and not
by the interim orders. According to him the
present suit was entertained after a delay of
31 years without any explanation for such a
long delay as provided under Order VII
Rule 6 CPC and the Limitation Act.

28. The case set up by the plaintiff
that State Government had removed them
from disputed place by some oral order is a
fact, which raises a question that since year
1993 the plaintiff sat tight over the matter
and has not adjudicated the issue before
any forum or Court of law. According to
learned Senior Counsel the suit has been
filed seeking relief of declaration and
mandatory injunction for restoring an
alleged right from which they were evicted
in the year 1993 without seeking any
exemption as provided under Order VII
Rule 6 CPC. Once the Trial Court proceeds
the first question will be that whether the
suit is barred because it was filed beyond
the limitation as provided under the
Limitation Act. Reliance has been placed
upon a decision of Madras High Court AIR
1940 Madras 617 Subramania Gurukul
Abhinav Poornpriya A. Sriniwas Rao
Saheb and the judgment of Apex Court in
case of M. Sadiq Vs. Suresh Das, 2020 (1)
SCC 1, relevant paragraph nos. 472, 473
and 479.

29. He next contended that the suit is
liable to be dismissed for non-joinder of
necessary party i.e. State of U.P. against
whom reliefs were sought and also on the
ground of joinder of unnecessary party i.e.
appellant. According to him it is admitted
that right of Shebaitship was transferred by
the plaintiff to defendant no. 2 on
25.02.2016 and also by transfer of
surrender deed dated 08.07.2016, hence
plaintiff
himself
has
voluntarily
surrendered his rights to suit. The appellant
has no role assigned in the alleged removal
of Shebait from the place in question, in
such circumstances any relief sought
against the defendant no. 1 is nothing but a
futile exercise and the suit itself is barred
by unnecessary joinder of parties and also
non-joinder of necessary party i.e. the
State. Reliance has been placed upon a
decision of Apex Court rendered in case of
Kasturi Vs. Iyyamperumal, 2005 (6) SCC
733. Reliance has also been placed upon
decision of Apex Court rendered in case of
Moreshar
Yadaorao
Mahajan
Vs.
Vyankatesh Sitaram Bhedi (D) throguh
LRs & Others, 2022 Supreme (SC) 986.

30. It was then contended that the suit
is barred under Order VII Rule 11 (d) CPC
by operation of law i.e. Section 4 of the
Places of Worship (Special Provision) Act
1991. According to him the mosque and its
underneath portion were always there and
were
never
disturbed
since
time
immemorial. On 15.08.1947 the mosque
and its underneath portion alongwith
appurtenant land were existing, hence,
provisions of the Act No. 42 of 1991 are
applicable and the suit is barred by
operation of law. The application under
Order VII Rule 11 (d) CPC has been filed
on 30.01.2024. The Act No. 42 of 1991 in
its opening statement defines the purpose
of the Act, which prohibits conversion of
any place of worship and to provide for the
maintenance of religious character of any
place of worship as it existed on the 15th
date of August 1947. Thus, the present suit
is barred by this Act and same cannot be
proceeded. Reliance has been placed upon
a decision of Apex Court rendered in case
3 All. C/M Anjuman Intezamia Masajid Varanasi Vs. Shailendra Kumar Pathak & Anr.
1739
of Prem Kishore & Others Vs. Brahm
Prakash & Others, 2023 LiveLaw (SC)
266.

31. It was lastly contended that the
order
dated
17.01.2024
appointing
Receiver was modified on 31.01.2024 i.e.
last date of working of the Court concerned
as he was going to superannuate on the said
date, and such modification could not have
been made by him on the last day of his
working.

32. Sri Puneet Gupta, learned counsel,
also appearing for the appellant, submitted
that the order appointing Receiver dated
17.01.2024 and the order dated 31.01.2024
is in form of relief of interlocutory
mandatory injunction which the Court
could not have granted as it would amount
to granting of final relief. According to him
relief (e) in the plaint is for a decree of
mandatory injunction directing Shri Kashi
Vishwanath
Trust
Board
to
act
in
accordance with Section 13 and 14 of the
Temple Act of 1983 and to make
provisions of Puja and worship within
tehkhana
(cellar).
The
order
dated
31.01.2024 is in form of interlocutory
mandatory injunction which has provided
for the worship and rituals under the
custodianship of Receiver appointed on
17.01.2024, which is a final relief and
cannot be granted.

33. According to him the grant of
interlocutory mandatory injunction cannot
be in a routine manner and unless and until
the plaintiff make out a strong case only
then it can be granted. Reliance has been
placed upon the decision of Supreme Court
in case of Dorab Cawasji Warden Vs.
Coomi Sorab Warden & Others, 1990 (2)
SCC 117. Reliance has also been placed
upon another decision of Apex Court in
case of Gurunanak Dev University Vs.
Parminder Kumar Bansal & Another,
1993
Supreme
(SC)
458.
Relevant
paragraph no. 6 is extracted here as under;

"6. Sri Gambhir is right in his
submission. We are afraid that this kind of
administration of interlocutory remedies,
more guided by sympathy quite often
wholly misplaced, does no service to
anyone. From the series of orders that keep
coming before us in academic matters, we
find that loose, ill-conceived sympathy
masquerades
as
interlocutory
justice
exposing judicial discretion to the criticism
of degenerating into private benevolence.
This is subversive of academic discipline,
or whatever is left of it, leading to serious
impasse in academic life. Admissions
cannot be ordered without regard to the
eligibility of the candidates. Decisions on
matters relevant to be taken into account at
the interlocutory stage cannot be deferred
or decided later when serious complications
might ensue from the interim order itself.
In the present case, the High Court was
apparently moved by sympathy for the
candidates than by an accurate assessment
of even the prima facie legal position. Such
orders cannot be allowed to stand. The
Courts should not embarrass academic
authorities by itself taking over their
functions."

34. Reliance has also been placed
upon a decision of Supreme Court in case
of Samir Narain Bhojwani Vs. Aurora
Properties and Investments & Another,
2018 (17) SCC 203. Relevant paragraph
nos. 24, 25 and 26 are extracted here as
under;

"24. That apart, the learned
Single Judge as well as the Division Bench
have committed fundamental error in
1740 INDIAN LAW REPORTS ALLAHABAD SERIES
applying the principle of moulding of relief
which could at best be resorted to at the
time of consideration of final relief in the
main suit and not at an interlocutory stage.
The nature of order passed against the
appellant is undeniably a mandatory order
at an interlocutory stage. There is marked
distinction between moulding of relief and
granting
mandatory
relief
at
an
interlocutory stage. As regards the latter,
that can be granted only to restore the
status quo and not to establish a new set of
things differing from the state which
existed at the date when the suit was
instituted. This Court in Dorab Cawasji
Warden Versus Coomi Sorab Warden and
Others,2 has had occasion to consider the
circumstances
warranting
grant
of
interlocutory mandatory injunction. In
paragraphs 16 & 17, after analysing the
legal precedents on the point as noticed in
paragraphs 11-15, the Court went on to
observe as follows:

"16. The relief of interlocutory
mandatory injunctions are thus granted
generally to preserve or restore the status
quo of the last non-contested status which
preceded the pending controversy until the
final hearing when full relief may be
granted or to compel the undoing of those
acts that have been illegally done or the
restoration of that which was wrongfully
taken from the party complaining. But
since the granting of such an injunction to a
party who fails or would fail to establish
his right at the trial may cause great
injustice or irreparable harm to the party
against
whom
it
was
granted
or
alternatively not granting of it to a party
who succeeds or would succeed may
equally cause great injustice or irreparable
harm,
courts
have
evolved
certain
guidelines.
Generally
stated
these
guidelines are:

(1) The plaintiff has a strong case
for trial. That is, it shall be of a higher
standard than a prima facie case that is
normally
required
for
a
prohibitory
injunction.

(2) It is necessary to prevent
irreparable
or
serious
injury
which
normally cannot be compensated in terms
of money.

(3) The balance of convenience is
in favour of the one seeking such relief.

17.