Sambhal Mosque Must Not Be Disputed Site | Ishrat Husain

March 4, 2025 is going to be a turning point in the history of Sambhal Jama Masjid case as the Allahabad High Court agreed to refer to the Sambhal Jama Masjid as a "disputed site." The court also instructed the stenographer to use the term "disputed structure" for the Shahi Masjid, following a request from other side. Though, it was oral instruction of the court and the next date is fixed on April 08, 2025. Such judicial instructions provide oxygen to the issues for political upheaval. It is pertinent to mention here that this instruction was given in Civil Revision (4/2025) on interim order of local civil court having original jurisdiction. Citing precedent, one party pointed out that the Babri Masjid-Ram Mandir site was referred to as a "disputed structure" for seven decades while the legal battle continued. Factually, there is huge difference between the two and that should not be ignored. The government declared the Babri mosque a “disputed property” on December 23, 1949 and locked its gate after idols of Ram deity were allegedly placed inside the structure. Muslims had not offered prayers at the mosque after that. Sambhal case is now moving to the direction of Ayodhya dispute case. As the dynamics of the Ayodhya dispute case kept changing from its inception to the end. At a time, it was a dispute of possession of some part of the disputed site which ultimately turned into the issue of ownership in 1950 and finally after 1992 it became purely an issue of faith to a section of country.

Is it truly a civil suit?

Civil Court has jurisdiction under Section 9 of the Civil Procedure Code, 1908 to try a suit if two conditions are satisfied (1) the suit must be of civil nature and (2) the cognizance of such a suit should not have been expressly or impliedly barred. An express bar is where a Statute itself contains a provision that the jurisdiction of a Civil Court is barred. For instance, the bar contained in Section 293 of the Income Tax Act, 1961 and many others. In this case, it is expressly barred by Places of Worship (Special Provisions) Act, 1991. So far as first condition is concerned, Civil Procedure Code, 1908 does not define civil suit or suit of civil nature. If we go through the interpretation of Section 9 and its explanation 1 by the several courts including Apex Court, it is now an established law that the expression suit of civil nature covers private rights and obligations of a citizen. Political and religious disputes are not covered by that expression. A suit in which the principal question relates to caste or religion is not a suit of civil nature. But if the principal question in a suit is of a civil nature (the right to property or to an office) and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be suit of a civil nature and the jurisdiction of a civil court is not barred.

Disputed Structure

The term issue in a civil case is synonym to a disputed question (here disputed structure) relating to rival contentions in a suit. Framing of issues is the most important part of the trail of a civil suit. If correct and accurate issues are not framed, it may lead to gross injustice. Issue means a material point of fact or law in litigation. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other to the suit. According to Order 14 of Rule 1(2) of Civil Procedure Code, 1908, material propositions are those propositions of fact or law which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defense.

Rule 2 of same Order provides that where issues both of law and fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. The main object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determine where the parties differ. This entire exercise, as per law, is done in the court of original jurisdiction. The court of original jurisdiction in this case is in Sambhal (Chandausi). The Supreme Court in several cases (like in MB Sanghvi v Secretary, Madras Chillies Merchant) has ruled that ‘no issue need to be framed on a point of law which is perfectly clear.

When issues are framed:

According to Rule 1(5) of Order 14, issues are framed and recorded by the court at the first hearing after reading the plaint, written statement, examining and hearing of parties and their pleaders. Where the Court finds that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day. The duty to frame proper issues rests primarily on the Court of original jurisdiction. The judge must apply his mind with due care, caution and diligence and understand the facts of the case before framing issues. Issues must be specific and clear and not vague or evasive. The court may examine the witnesses or inspect documents before framing issues.

It is an established law that the court cannot frame an issue which does not arise on the pleadings. Issues must be confined to the material question of fact or law not on subordinate facts. Finally, if the case goes to higher courts, it must be dealt with by the higher court on the issues (disputes) settled by the trial court. High Court is not supposed to change the nature of the case on the insistence of interested party. In the case of Jama Masjid Sambhal, everything seems to be done prematurely.

(Author: Prof. Ishrat Husain, Department of Law, AMU, Aligarh