# Smt. Laxmi Devi & Ors. Revisionists v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1809
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-12
- **Case number:** Civil Revision No. 114 of 2022
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-laxmi-devi-ors-revisionists-v-state-of-u-p-ors-50268
- **Pages:** 9

## Headnote

C.S.C., Amitabh Trivedi, Fatima Anjum, Sri
Manoj Kumar Singh, Sri Saurabh Tiwari, Sri
Syed Ahmed, Sri Vineett Sankalp, Sri
Zaheer, Sri Syed Ahmed Faizan, Sri Syed
Farman Ahmad Naqvi (Sr. Advocate)

Civil Law - Civil Revision- Code of Civil
Procedure, 1908- Order dismissing the
application seeking scientific investigation
of
the
structure(in
the
shape
of
Shivlingam)-challenged-report
sought
from Archaeological Survey of Indiaregarding
feasibility
of
scientific
investigation- scientific investigation of
the Shivlingam / site, under able guidance
of the Archaeological Survey of India
assisted
by
the
experts,
scientists,
archaeologist, can be done convenientlysubject to the rider that the site /
Shivlingam in question shall not be
damaged and it shall be preserved and
protected in its present shape-impugned
order based on reasoning alone minus
relevant material on record-arbitrary and
erroneous-cannot
be
sustained-
trial
Judge / District Judge, Varanasi will
proceed
further
with
the
case
and
scientific investigation of the site /
Shivlingam shall be directed to be done
under
aegis
and
guidance
of
the
Archaeological Survey of India.- revision
allowed. (Paras 20, 21, 23, 26 and 27)

HELD:
Now insofar as the above observation of the
District Judge, Varanasi in regard to direction
being
issued
for
carrying
out
scientific
1810 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation is concerned, it is admitted fact
that before passing the order (14.10.2022), due
diligence was not exercised by the District
Judge, Varanasi for the specific reason that the
finding reached by the District Judge, Varanasi
regarding damage being caused to the structure
in issue is assumptive and presumptive and the
same is not based upon any relevant material
on record as such not supported by record. If
the trial Judge had any apprehension of damage
being caused to the site in case scientific
investigation of the site is directed in that event
it was obligatory on his part to have sought
expert opinion of the persons well versed in
carrying out such type of enterprises like the
present one. The learned trial Judge, without
collecting specific data / material from the able
agency jumped upon the conclusion that
scientific investigation of the site / Shivlingam if
directed to be done will in all probability result
in destruction of the site / Shivlingam itself.
(Para 20)

This Court has no hesitation in observing that
the report forwarded by the Superintending
Archaeologist, ASI Sarnath Circle, Sarnath,
Varanasi, would make it feasible and convenient
that scientific investigation can be made to the
extent and purport without causing harm to the
site / Shivlingam in issue. That way, the natural
premise that would follow, would proceed on
theme that the actual site of the Shivlingam
would remain preserved and protected. It being
a factual reality, the technical and scientific
report of the Archaeological Survey of India has
opened
ways
for
carrying
out
scientific
investigation of the site / Shivlingam without
causing any damage to the structure in
question. (Para 21)

For the reasons aforesaid, the order impugned
dated 14.10.2022 passed by the District Judge,
Varanasi is found to be without merit, for the
reason that the finding to the import that any
scientific investigation would have impact of
causing harm to the structure is a finding not
supported by the relevant material on record.
(Para 23)

It is trite law that any finding recorded by a
court of law must be supported by relevant
material on record, whereas, any finding
recorded by a court of law on the strength of
reasoning alone minus relevant material on
record would be on the face arbitrary and
erroneous (finding). Therefore, the aforesaid
finding of the District Judge, Varanasi, recorded
vide order dated 14.10.2022 being erroneous
cannot be sustained. (Para 24)

It is directed that the trial Judge / District
Judge, Varanasi will proceed further with
the case and scientific in

## Text

5 All. Smt. Laxmi Devi & Ors. Vs. State of U.P. & Ors.
1809
purposes of retirement benefits under the
U.P. Retirement Benefits Rules 1961 and
other ancillary rules and Government
Orders in this regard as also the
Government Order dated 11.1.1993 and in
fact
the
Government
Order
dated
10.07.1998 as modified on 28.12.2001 is
not applicable to such employees.

(iii) The Division Bench judgment in
the case of Ram Shanker Gupta (supra) is
in conflict with the earlier decisions by
Coordinate Benches in the cases of
Shankatha
Prasad
Mishra
(surpa);
Hridayesh
Dayal
Srivastava
(surpa);
Mirtuyanjay
Prasad
Singh
(surpa);
Keshav Ram Pandey (supra) and State of
U.P. and others versus Amar Pal Singh. It
is the decision in Ram Shanker Gupta
(supra) which lays down the law correctly
and for the reasons already discussed, the
other decisions do not lay down the law
correctly

46.

Reference
is
answered
accordingly.

47. Ordinarily after answering the
questions before us, we remit the matter
back to the writ Court, but, it would be a
futile exercise in the facts of this case, as
nothing survives for further adjudication by
the writ Court. The very basis of the claim
of petitioner having been found to be nonexistent on facts as also in law, we do not
see as to why we should send the matter
back to the writ Court for passing final
orders. In our view, as all the issues have
already been decided by us, we dismiss the
writ petition.
----------
(2023) 5 ILRA 1809
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2023

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Revision No. 114 of 2022

Smt. Laxmi Devi & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Prabhash Pandey, Vishnu Shankar Jain, Sri
Pradeep Kumar Sharma, Sri Hari Shanker
Jain (Sr. Advocate)

Counsel for the Opposite Parties:
C.S.C., Amitabh Trivedi, Fatima Anjum, Sri
Manoj Kumar Singh, Sri Saurabh Tiwari, Sri
Syed Ahmed, Sri Vineett Sankalp, Sri
Zaheer, Sri Syed Ahmed Faizan, Sri Syed
Farman Ahmad Naqvi (Sr. Advocate)

Civil Law - Civil Revision- Code of Civil
Procedure, 1908- Order dismissing the
application seeking scientific investigation
of
the
structure(in
the
shape
of
Shivlingam)-challenged-report
sought
from Archaeological Survey of Indiaregarding
feasibility
of
scientific
investigation- scientific investigation of
the Shivlingam / site, under able guidance
of the Archaeological Survey of India
assisted
by
the
experts,
scientists,
archaeologist, can be done convenientlysubject to the rider that the site /
Shivlingam in question shall not be
damaged and it shall be preserved and
protected in its present shape-impugned
order based on reasoning alone minus
relevant material on record-arbitrary and
erroneous-cannot
be
sustained-
trial
Judge / District Judge, Varanasi will
proceed
further
with
the
case
and
scientific investigation of the site /
Shivlingam shall be directed to be done
under
aegis
and
guidance
of
the
Archaeological Survey of India.- revision
allowed. (Paras 20, 21, 23, 26 and 27)

HELD:
Now insofar as the above observation of the
District Judge, Varanasi in regard to direction
being
issued
for
carrying
out
scientific
1810 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation is concerned, it is admitted fact
that before passing the order (14.10.2022), due
diligence was not exercised by the District
Judge, Varanasi for the specific reason that the
finding reached by the District Judge, Varanasi
regarding damage being caused to the structure
in issue is assumptive and presumptive and the
same is not based upon any relevant material
on record as such not supported by record. If
the trial Judge had any apprehension of damage
being caused to the site in case scientific
investigation of the site is directed in that event
it was obligatory on his part to have sought
expert opinion of the persons well versed in
carrying out such type of enterprises like the
present one. The learned trial Judge, without
collecting specific data / material from the able
agency jumped upon the conclusion that
scientific investigation of the site / Shivlingam if
directed to be done will in all probability result
in destruction of the site / Shivlingam itself.
(Para 20)

This Court has no hesitation in observing that
the report forwarded by the Superintending
Archaeologist, ASI Sarnath Circle, Sarnath,
Varanasi, would make it feasible and convenient
that scientific investigation can be made to the
extent and purport without causing harm to the
site / Shivlingam in issue. That way, the natural
premise that would follow, would proceed on
theme that the actual site of the Shivlingam
would remain preserved and protected. It being
a factual reality, the technical and scientific
report of the Archaeological Survey of India has
opened
ways
for
carrying
out
scientific
investigation of the site / Shivlingam without
causing any damage to the structure in
question. (Para 21)

For the reasons aforesaid, the order impugned
dated 14.10.2022 passed by the District Judge,
Varanasi is found to be without merit, for the
reason that the finding to the import that any
scientific investigation would have impact of
causing harm to the structure is a finding not
supported by the relevant material on record.
(Para 23)

It is trite law that any finding recorded by a
court of law must be supported by relevant
material on record, whereas, any finding
recorded by a court of law on the strength of
reasoning alone minus relevant material on
record would be on the face arbitrary and
erroneous (finding). Therefore, the aforesaid
finding of the District Judge, Varanasi, recorded
vide order dated 14.10.2022 being erroneous
cannot be sustained. (Para 24)

It is directed that the trial Judge / District
Judge, Varanasi will proceed further with
the case and scientific investigation of the
site / Shivlingam shall be directed to be
done under aegis and guidance of the
Archaeological Survey of India to the extent
and import as observed hereinabove in this
order and the entire exercise shall be done
under direction and supervision of the trial
court
and
all
consequential
necessary
directions shall be passed / issued in that
regard by it. (Para 27)

Revision allowed. (E-14)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Pursuant to the order of this Court
dated
04.11.2022,
Director
General,
Archaeological Survey of India, New Delhi
was directed for expressing opinion on the
point whether scientific investigation of the
'structure' found at the site - subject matter of
original suit no.18 of 2022, can be done
through the method of carbon dating, ground
penetrating radar (GPR), excavation and
other scientific methods to be adopted to
determine its age, nature and other relevant
information without causing damage to it?

2. In that regard, the report has been
submitted
by
the
learned Additional
Solicitor General of India - Sri Shashi
Prakash Singh assisted by learned counsel
Sri Manoj Kumar Singh.

3. Noticeable that the aforesaid report
was produced in a sealed envelope by the
5 All. Smt. Laxmi Devi & Ors. Vs. State of U.P. & Ors.
1811
Additional Solicitor General of India for
perusal of the Court on 11.05.2023
whereupon the sealed envelope was opened
in Court and copy of the report was sought
to be made available to the counsel for the
revisionists as well as the contesting
respondents whereupon the copy was
supplied to them so that the parties may
come to know about the substance and
contents of the report submitted by the
Archaeological Survey of India, Sarnath
Circle, Sarnath, Varanasi. At this juncture
this was considered appropriate to give at
least one day time to both the sides to
peruse the copy of the report and to state
their respective stand so that the matter
may be finally considered for disposal and
the proceeding of this case was adjourned
for the next following day i.e. 12.05.2023.

4. This Court carefully perused the
original report which has been submitted to
this Court by the covering letter of the
Superintending Archaeologist, ASI, Sarnath
Circle, Sarnath, Varanasi, dated 17.04.2023,
thus communicating to this Court about the
report which runs in as many as 52 pages
and
the
learned Additional
Solicitor
General of India explained the various
contents and aspects of this report - as
submitted.

5. The learned Additional Solicitor
General described the report by summing
up that the opinion of the Archaeological
Survey
of
India
is
based
upon
views/opinions of various renowned IITs
(Indian Institutes of Technology) located in
various regions of India, also about the
scientific analysis of various methods and
approach likely to be adopted for carrying
out survey of the structure in question on
the site.

6. Heard Sri Hari Shanker Jain,
learned Senior Advocate, through virtualmode, assisted by Sri Vishnu Shanker Jain,
Sri Prabhash Pandey, Sri Pradeep Kumar
Sharma,
learned
Counsel
for
the
revisionists through hybrid mode, Sri
Shashi Prakash Singh, Additional Solicitor
General of India, assisted by Sri Manoj
Kumar Singh, Advocate appearing for
Archaeological
Survey
of
India,
Sri
Mahesh
Chandra
Chaturvedi,
learned
Additional Advocate General assisted by
Sri Bipin Bihari Pandey, learned Chief
Standing Counsel, Sri Ramanjay Singh,
learned Additional Chief Standing Counsel,
Sri Ankit Gaur, Sri Shravan Kumar Dubey,
Sri Gyanedra Singh, Sri Hare Ram Tripathi,
learned
Standing
Counsel
for
the
respondent nos. 1,2 and 3. Sri Syed Farman
Ahmad Naqvi, learned Senior Advocate
assisted by Sri Syed Ahmed Faizan, learned
counsel for the respondent no.4, Sri. Vineet
Sankalp, learned counsel for the respondent
No.5. No one appears on behalf of the
respondent no.6 in spite of repeated calls,
also perused the record as available.

7. By way of the instant revision,
challenge has been made to the impugned
order dated 14.10.2022 passed by the trial
Judge / District Judge, Varanasi, in Original
Suit No.18 of 2022 Rakhi Singh Vs. State
of U.P. and others, whereby the application
numbered 250 C moved by the plaintiffrevisionist and objection 255 C and 262 C
were
considered
and
the
application
aforesaid was dismissed by observation that
the prayer made for scientific investigation
of
the
structure
(in
the
shape
of
Shivlingam) cannot be ordered as that
would be in violation of the order dated
17.05.2022 passed by the Hon'ble Apex
Court directing the site / Shivlingum to be
preserved and protected. The trial court
1812 INDIAN LAW REPORTS ALLAHABAD SERIES
also observed that in view of above, there is
no need for calling any report from the
Archaeological Survey of India.

8. Learned counsel for the revisionists
has vociferously claimed that the entire
report on the point in issue for scientific
investigation
of
the
site
by
the
Archaeological Survey of India when taken
into
consideration
would
reflect
connotation, expressed and implied, that
scientific survey of the site / Shivlingam
can be managed and done without causing
harm to the site in question. In support of
his claim, learned counsel has engaged
attention of this Court to the various pages
of the aforesaid report to be specific page
nos.1, 6, 8, 17, 18, 19, 21 and claimed that
opinion
/
report
submitted
by
the
Archaeological Survey of India comes out
with
all
the
options
available
for
conducting scientific survey of the site with
possible
outcome
of
the
scientific
investigation
and
it
elaborates
those
methods by adopting which some data
regarding age of the site / carbon dating of
the site can be done without causing
damage to the site and he proceeded to
conclude that opinion submitted by the
scientists from the various IITs is based
upon scientific analysis of the 'modus
operandi' to be applied in this case. Learned
counsel also suggested that those methods
by adopting which site might be damaged
may be discarded and the one which helps
in carrying out scientific investigation /
survey of the site without damaging it
should be adhered to and given green signal
by this Court so that actual age of the
Shivlingam / site may be ascertained.

9. At the very outset, learned Senior
Counsel appearing for the respondent no.4
has raised preliminary objection regarding
the proceeding of this Court in view of the
order dated 17.05.2022 passed by the
Hon'ble Apex Court. Learned Senior
Counsel has read out the directions of the
Hon'ble Apex Court that the structure in
issue is required to be protected/preserved,
therefore, it cannot be disturbed and any
order passed for carrying out survey or
scientific investigation of the site would be
violative of the aforesaid order.

10.
Learned
counsel
for
the
revisionists intervened and in reply to the
aforesaid contention, submitted that insofar
as the order dated 17.05.2022 passed by
Hon'ble Apex Court is concerned that
would
not
deter
this
Court
from
considering the aspect of the scientific
investigation to be done in the manner that
it is done without causing damage to the
site in question and the site remains
protected and preserved.

11. In support of his submission, Sri
Vishnu Shanker Jain, learned counsel for
the revisionists engaged attention of this
Court to the very order dated 20.05.2022
passed by the Hon'ble Apex Court and read
out the same in its entirety and claimed that
in the order itself, the Hon'ble Apex Court
has directed the trial Judge / District Judge,
Varanasi to proceed with the trial touching
upon ancillary matter. It is noticeable that
during course of proceeding of this suit in
question, application 250 C was moved (by
the plaintiff-revisionist) calling for carrying
out scientific investigation of the site which
was considered more on technical grounds
than on merits and perfunctorily rejected
the application under garb of the aforesaid
order dated 17.05.2022 that the site /
Shivlingam has been directed to be
5 All. Smt. Laxmi Devi & Ors. Vs. State of U.P. & Ors.
1813
protected and preserved, therefore, the trial
Judge was of the opinion that there is no
need for calling any report on the point
under
consideration
from
the
the
Archaeological
Survey
of
India
for
determining the age, nature and structure of
the Shivlingam. He repeated his claim that
conduction of the scientific investigation
for determination of the age of the site in
question would not in all probability
damage and destroy the site / Shivlingam
and would not change its nature as existing
on date.

12. At this stage, Mr. Syed Farman
Ahmad Naqvi, learned Senior Counsel for
the respondent no.4 was posed specific
query as to whether the report of the
Archaeological
Survey
of
India
as
submitted
by
the
learned Additional
Solicitor General of India, inescapably
connotes to the import that order for any
scientific investigation of the site /
Shivlingam if made, would have the effect
of destroying the site itself then learned
Senior Counsel tried to hammer on certain
points by reading out contents of page no.4
of the aforesaid report. However, he was
intercepted by the learned counsel for the
revisionists
by
clarifying
the
factual
situation by reading out the contents of
page nos.6 and 8 of the aforesaid report,
which gesture was ostensibly not opposed
by the learned Senior Counsel for the
respondent no.4. It may be observed that
the learned Senior Counsel for the
respondent no.4 drew blank on the point of
specific query by this Court that any sort of
scientific
investigation
will
in
all
probability cause damage to the structure.

13. As the Court proceeded further and
asked the learned Additional Solicitor
General of India, Sri Shashi Prakash Singh
assisted by Sri Manoj Kumar Singh to
express his views about the express and
implied connotations emerging from the
aforesaid report by the Archaeological
Survey of India whereupon he elaborated
various details of the report and brought to
the notice of this Court that the ground
penetrating radar technique / method will
be helpful towards identifying the remains
of the ancient structures buried if any at the
site and he proceeded to explain that as per
advice and various opinions subsurface
stratigraphic section would be ideal to
study the different culture level at the site.
He claimed that IIT Kanpur has specific
suggestion on the point in that regard. After
lot of discussion on the various methods
suggested
in
the
report
of
the
Archaeological Survey of India, the learned
Additional Solicitor General suggested that
scientific investigation of the site can be
ably done without causing harm to the
Shivlingam / site. He was innocuous on
point while claiming that a cumulative
reading of the report submitted by the
Archaeological Survey of India does not
make it a point that any scientific
investigation of the Shivlingam / site, if
carried out, would damage it.

14.
Learned
Additional
Advocate
General, Sri Mahesh Chandra Chaturvedi,
appearing for the State also dittoed the line of
argument and suggestion advanced by the
Additional Solicitor General of India and
claimed that there is nothing in the entire
report which may cause damage to the
Shivlingam / site if scientific investigation of
the site is directed to be done. Therefore, to
claim that the nature of the property of the
site / Shivlingam would not be protected /
preserved in case of scientific investigation is
baseless argument without any rationale.
1814 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In the wake of the above discussed
rival contentions and the fact position in the
light of the report of the Archaeological
Survey of India as submitted by the
Additional Solicitor General of India, the
solitary
issue
that
crops
up
for
consideration of this Court pertains to fact
whether scientific investigation of the site /
Shivlingam,
without
harming
and
damaging the site / Shivlingam, can be
directed or not?

16. While proceeding in the matter and
viewing the things from that angle, the
overall impression that trickles out from the
careful perusal of the report of the
Archaeological Survey of India indicates,
to all intents and purposes, that scientific
investigation of the site can be suitably
carried out without causing harm to the site
/ Shivlingam in issue as such it can be
concluded that the Shivlimgam / site would
remain preserved and protected even after
the scientific investigation for determining
the age, nature and status of the site /
Shivlingam is done. The various reports of
the scientific institutions do indicate to the
same purport that scientific investigation
can be carried out without causing harm to
the site / Shivlingam. Since the entire
report submitted by the Archaeological
Survey of India has been made part of the
record of this case, there is no need of
describing the various extracts of these
reports / opinion contained in the report
itself.

17. In view of above discussion,
natural conclusion emerges that scientific
investigation of the Shivlingam / site, under
able guidance of the Archaeological Survey
of India assisted by the experts, scientists,
archaeologist, can be done conveniently
subject to the rider that the site /
Shivlingam in question shall not be
damaged and it shall be preserved and
protected in its present shape.

18. At this juncture, proper scrutiny of
the impugned order dated 14.10.2022
passed by the District Judge, Varanasi need
be done both on legal as well as factual
aspects.

19.
Bare
perusal
of
the
order
impugned dated 14.10.2022 passed by the
District Judge, Varanasi reveals that an
application numbered 250 C was moved by
the plaintiff-revisionists under Order 26
Rule 10 A read with 151 Civil Procedure
Code, 1908 was moved with the prayer that
the nature, age and status of the Shivlingam
discovered on the site on 16.05.2022 in the
survey done by Advocate Commissioner
(of the site) be directed to be scientifically
investigated by the Archaeological Survey
of
India
by
resorting
to
scientific
techniques and technique for carbon dating.
The contents of the order impugned
proceeds further with the elaboration of the
background of the original suit no.18 of
2022 and takes note of fact that some
structure in the shape of Shivlingam was
found by the Advocate Commissioner
while survey of the site was made and a
detailed discussion regarding nature and
age of the substance of the Shivlingam was
exhaustively taken into consideration by
the trial Judge. Apart from that, objection
255 C filed by the defendant side was also
taken into consideration and contents
thereof discussed. After discussing factual
aspect of the case, the trial Judge was of the
view that the Hon'ble Apex Court vide its
order dated 17.05.2022 has directed that the
Shivlingam that was found on the spot in
5 All. Smt. Laxmi Devi & Ors. Vs. State of U.P. & Ors.
1815
the survey commission should be protected
and preserved and in case any direction for
using carbon dating technique or ground
penetrating
radar
is
made
there
is
possibility
of
causing
harm
to
the
Shivlingam itself and that would be in
derogation of the order dated 17.05.2022
passed by the Hon'ble Apex Court. Apart
from that, it would adversely affect
religious feeling of the masses at large.
Therefore, the prayer made in the aforesaid
application by the plaintiff- revisionist was
disallowed. Consequently the application
numbered 250 C was rejected.

20.
Now
insofar
as
the
above
observation of the District Judge, Varanasi
in regard to direction being issued for
carrying out scientific investigation is
concerned, it is admitted fact that before
passing
the
order
(14.10.2022),
due
diligence was not exercised by the District
Judge, Varanasi for the specific reason that
the finding reached by the District Judge,
Varanasi regarding damage being caused to
the structure in issue is assumptive and
presumptive and the same is not based
upon any relevant material on record as
such not supported by record. If the trial
Judge had any apprehension of damage
being caused to the site in case scientific
investigation of the site is directed in that
event it was obligatory on his part to have
sought expert opinion of the persons well
versed in carrying out such type of
enterprises like the present one. The
learned trial Judge, without collecting
specific data / material from the able
agency jumped upon the conclusion that
scientific investigation of the site /
Shivlingam if directed to be done will in all
probability result in destruction of the site /
Shivlingam itself.

21. This Court has no hesitation in
observing that the report forwarded by the
Superintending Archaeologist, ASI Sarnath
Circle, Sarnath, Varanasi, would make it
feasible and convenient that scientific
investigation can be made to the extent and
purport without causing harm to the site /
Shivlingam in issue. That way, the natural
premise that would follow, would proceed
on theme that the actual site of the
Shivlingam would remain preserved and
protected. It being a factual reality, the
technical and scientific report of the
Archaeological Survey of India has opened
ways
for
carrying
out
scientific
investigation of the site / Shivlingam
without causing any damage to the
structure in question.

22. It being civil revision against the
order impugned dated 14.10.2022 passed
by the District Judge, Varanasi, merits of
the original suit is not to be touched by this
Court.

23. For the reasons aforesaid, the order
impugned dated 14.10.2022 passed by the
District Judge, Varanasi is found to be
without merit, for the reason that the
finding to the import that any scientific
investigation would have impact of causing
harm to the structure is a finding not
supported by the relevant material on
record.

24. It is trite law that any finding
recorded by a court of law must be
supported by relevant material on record,
whereas, any finding recorded by a court of
law on the strength of reasoning alone
minus relevant material on record would be
1816 INDIAN LAW REPORTS ALLAHABAD SERIES
on the face arbitrary and erroneous
(finding). Therefore, the aforesaid finding
of the District Judge, Varanasi, recorded
vide
order
dated
14.10.2022
being
erroneous cannot be sustained.

25. Consequently the order impugned
dated 14.10.2022 passed by the District
Judge, Varanasi, in Original Suit No.18 of
2022 Rakhi Singh Vs. State of U.P. and
others is hereby set aside.

26.
Therefore,
the
application
numbered 250 C moved by the plaintiffrevisionist before the trial Judge is allowed
to the effect and import that scientific
investigation of the site / Shivlingam shall
be carried out without causing damage to
the site / Shivlingam and it shall be
preserved in its present form. All objections
moved against the aforesaid application
250 C is hereby disallowed.

27. It is directed that the trial Judge /
District Judge, Varanasi will proceed
further with the case and scientific
investigation of the site / Shivlingam shall
be directed to be done under aegis and
guidance of the Archaeological Survey of
India to the extent and import as observed
hereinabove in this order and the entire
exercise shall be done under direction and
supervision of the trial court and all
consequential necessary directions shall be
passed / issued in that regard by it.

28. In order to facilitate further course
of action by the trial court of Varanasi
pertaining to original suit no.18 of 2022
Rakhi Singh Vs. State of U.P. and others,
learned Additional Solicitor General of
India is directed to issue suitable directions
to
the
concerned
authority
of
the
Archaeological Survey of India to appear
before the trial Judge / District Judge,
Varanasi on 22.05.2023, and the authority
so present would after seeking suitable
direction from the court of the District
Judge, Varanasi, will render assistance to
the trial Judge and will do the needful for
carrying out the scientific investigation of
the structure in the light of the observations
made in this order. Both the parties present
before this Court have also been apprised
of this specific date and all have agreed to
abide by it. Therefore, the parties are
required to appear before the trial court on
22.05.2023.

29. In order to ensure proper scientific
investigation as directed, let a copy of the
entire report of the Archaeological Survey
of India be transmitted forthwith to the trial
Judge / District Judge, Varanasi. It is made
clear that this report of the Archaeological
Survey of India which runs in as many as
52 pages forwarded by Superintending
Archaeologist, ASI Sarnath Circle Sarnath,
Varanasi, would form part/record of the
suit.

30. This revision is allowed in terms
aforesaid.

31. Before parting with the judgment,
this Court records high appreciation for the
valuable
assistance
extended
by
the
Additional Solicitor General of India, Sri
Shashi Prakash Singh, assisted by Sri
Manoj Kumar Singh appearing for ASI
who took pains in elaborating the various
5 All. Sheshnath Singh Vs. Devendra Pratap Singh
1817
contents of the report of the Archaeological
Survey of India, thus assisting the Court to a
great extent in disposal of this case. Likewise,
this Court accords appreciation for the services
rendered by the learned Additional Advocate
General, Sri Mahesh Chandra Chaturvedi -
State of U.P.- and learned Chief Standing
Counsel - Sri Bipin Bihari Pandey - in
disposal of this case. Learned Senior Counsel
for the respondent no.4 Mr. Syed Farman
Ahmad Naqvi and his assisting counsel also
deserve appreciation for rendering useful help
to this Court in disposal of this case.

32. Let a copy of this order be
transmitted to the trial Judge/District Judge,
Varanasi,
forthwith
for
ensuring
compliance as above.

33. Costs easy.
----------
(2023) 5 ILRA 1817
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 126 of 2022

Sheshnath Singh ...Revisionist
Versus
Devendra Pratap Singh ...Opposite Party

Counsel for the Revisionist:
Sri Shailendra Kumar Singh, Sri Ashok
Kumar Upadhyay

Counsel for the Opposite Party:
Sri Tej Bhan Singh, Sri Meraj Ahmad Khan

Civil Law - Order rejecting defendantrevisionist's
application
for
leave
to
defend
in
a
summary
suit-
under
challenge- Civil Revision- Code of Civil
Procedure, 1908- Summary suit under
Order XXXVII of the Code- Rules 2 and 3
of
Order XXXVII
of
Code-Course
of
summary suit after service of summonsRule 3(5) provides the manner in which
the leave to defend is to be granted-Leave
to defend cannot be sought by the
defendant at the stage when he enters
appearance in response to summons-next
step must be taken by plaintiff-obtain
summons
for
judgement-hence,
defendant's
application
for
leave
to
defend was premature-order of learned
trial judge rejecting the application for
leave to defend on merits-ought to be
substituted by an order rejecting that
application as premature-application for
leave to defend to be considered againrevision allowed. (Paras 8, 9, 10, 11, 12
and 13)

HELD:
A reading of Rule 3 of Order XXXVII of the Code
shows
that
once
the
defendant
enters
appearance in response to the summons issued
in Form 4 of Appendix B to the Code, notice of
appearance is to be given by the defendant to
the plaintiff's Counsel, or if the plaintiff appears
in person, to the plaintiff himself, either by
notice delivered at or sent by a prepaid letter,
directed to the address of the plaintiff's pleader
or the plaintiff, as the case may be. Sub-rule (4)
of Rule 3 of Order XXXVII of the Code
postulates that after the defendant enters
appearance, the plaintiff is obliged to serve on
the defendant, summons for judgment in Form
4A set out in Appendix B to the Code. The
summons for judgement are to be made
returnable, not less than ten days from the date
of service. The summons for judgment are
required to be supported by affidavit, verifying
the cause of action and the amount claimed to
be due from the defendant. The statute also
requires the plaintiff to St.that in his belief, there
is no defence to the suit. It is upon service of
the said summons for judgment that within the
time period of ten days, the defendant can
apply for leave to defend the suit. Sub-rule(5) of
Rule 3 postulates that the leave prayed by the
defendant to be granted by the Court is
unconditional or upon such terms as the Court
may consider just. The two provisos appended
to sub-rule (5) are further guidance in the
matter to the Court how leave is to be granted