1. When these appeals were called for commencement of hearing keeping in view the order dated 11.8.2017, Mr. Kapil Sibal, learned senior counsel appearing for the appellants in Civil Appeal Nos. 2894/2011 and 7226/2011 contrary to the spirit of the earlier order, filed a status report relating to filing of exhibits in various suits. The same was objected to by the learned counsel for the respondents on the ground that all the exhibits have been filed and there should not be any quarrel over the same. Before this Court could address the same, Dr. Rajeev Dhavan, learned senior counsel appearing for the appellants in Civil Appeal nos. 10866-10867 and 2215/2011 submitted, apart from filing of the exhibits, that the matter has to be referred to a larger Bench in view of the decision rendered by the Constitution Bench in Jamiat-Ulama-E-Hind v. Union of India, (1994) 6 SCC 360. He has drawn our attention to paragraph 82 of the said decision. It reads as follows:—
“82. The correct position may be summarised thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla's Principles of Mahomedan Law, 19 Edn., by M. Hidayatullah - Section 217; and Shahid Ganj v. Shiromani Gurdwara, AIR 1940 PC 116 : 44 CWN 957 : 67 IA 251). If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practise the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right of worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right.”
2. The said submission was opposed to by Mr. K. Parasaran and Mr. Harish Salve, learned senior counsel appearing for respondents, and the appellants in some appeals, on the ground that the issue whether the matter should be referred to a larger Bench or not, cannot be adjudged at this juncture, because the judgment by the Constitution Bench is binding on this Court and further if an occasion arises and if the context so requires, the matter may be considered at that stage, but that should not stall the process of hearing of this matter.
3. We will be failing in our duty if we do not note some submissions advanced by Mr. Kapil Sibal that these are not ordinary appeals arising out of ordinary suits and, therefore, it should not be heard at present. Mr. Dushyant Dave, learned senior counsel appearing in Civil Appeal No. 5498/2011 echoed the submissions made by Mr. Kapil Sibal, apart from stating certain other aspects which are not worth noting because they do not relate to the lis. In fact a novel prayer was advanced that the matter should be listed some time in 2019. Dr. Dhavan, learned senior counsel almost thought of writing a Shavian preface, which can more than be main drama or a play, by stating that he would require four months to read, prepare and argue. We have noted this, as the said submission was advanced with medieval passion and sans reason. Before we could further travel to the issue of filing of exhibits, Mr. C.S Vaidyanathan, learned senior counsel reminded us that today we are supposed to commence hearing in the appeals with a statement of case.
4. At this juncture, we are compelled to note that Mr. Sibal, Dr. Dhavan and Mr. Dushyant Dave sought leave of this Court to recuse themselves from proceeding with the argument. We declined the said permission and we must say, that they accepted. If we permit ourselves to say so, the submission was shocking and surprising and when we proceeded to record so, prayer was made not to do so and we, accepting the fervent request made by the counsel, refrain from recording so.
5. Coming back to the filing of documents, as far as the status report is concerned, we think it appropriate to reproduce the same:—
“STATUS OF FILING OF EXHIBITS RELIED UPON BY THE PLAINTIFFS IN SUIT NO. 1 OF 1989, SUIT NO. 3 OF 1989 AND SUIT NO. 5 OF 1989 AND DEFENDANTS IN SUIT NO. 4 OF 1989
1. LIST OF EXHIBITS FILED BY THE PLAINTIFFS IN SUIT NO. 1 OF 1989
Total Exhibits - [34]
Status: ALL FILED
2. LIST OF EXHIBITS FILED BY THE PLAINTIFFS IN SUIT NO. 3 OF 1989
Total Exhibits - [21]
Number of Exhibits filed - [10]
Total remaining: 21-10 = [11]
Status: 11 EXHIBITS REMAINING
3. LIST OF EXHIBITS FILED BY THE CONTESTING DEFENDANTS IN SUIT NO. 4 OF 1989
Total Exhibits - [83]
Number of Exhibits filed - [10]
Total remaining: 83-10 = [73]
Status: 73 EXHIBITS REMAINING
4. LIST OF EXHIBITS FILED BY THE PLAINTIFFS IN SUIT NO. 5 OF 1989
Total Exhibits - [132]
Number of Exhibits filed - [81]
Total remaining: 132-81 = [51]
Status: 51 EXHIBITS REMAINING
5. LIST OF EXHIBITS FILED BY THE CONTESTING DEFENDANTS IN SUIT NO. 5 OF 1989
Total Exhibits - [11]
Number of Exhibits filed - [8]
Total remaining: 11-8 = [3]
Status: 3 EXHIBITS REMAINING
II. STATUS OF FILING OF EXHIBITS RELIED UPON BY THE CONTESTING DEFENDANTS IN SUIT NO. 1 OF 1989, PLAINTIFFS IN SUIT NO. 4 OF 1989 AND CONTESTING DEFENDANTS IN SUIT NO. 5 OF 1989
1. LIST OF EXHIBITS FILED BY THE CONTESTING DEFENDANTS IN SUIT NO. 1 OF 1989
Total Exhibits not relevant (as per the list of the Hon'ble High Court) - [3]
Total Exhibits relevant - [70]
Total Exhibits filed - [61]
Total Exhibits not filed - [9]
Status: 9 EXHIBITS REMAINING
2. LIST OF EXHIBITS FILED BY THE PLAINTIFFS IN SUIT NO. 4 OF 1989
Total Number of Exhibits - [128]
Total Exhibits filed - [34]
Total Exhibits not available - [9] (Awaited from the Registry)
Status: 94 EXHIBITS REMAINING
3. LIST OF EXHIBITS FILED BY THE CONTESTING DEFENDANTS IN SUIT NO. 5 OF 1989
Total Number of Exhibits - [50]
Total Exhibits filed - [50]
Status: ALL EXHIBITS ARE FILED”
6. The Advocates-on-Record appearing for the parties have assured this Court that they will sit together, work in harmony and will see to it that the documents are filed within a timeframe, if not already filed. If any part of the pleadings are required to be exchanged, that should be exchanged so that there will be no adjournment on this score, and hearing in the case can commence. The documents shall be numbered by the Advocates-on-Record. They shall file a common memorandum when all documents are ready. If there is any problem, they may contact the Registry of this Court. If required, the Registry shall permit inspection of documents by Advocates-on-Record for both sides.
7. Let the matter be listed on 8.2.2018
8. We are sure that learned counsel for the parties will come prepared to argue the matter and shall not seek any adjournment. However, the Advocates-on-Record shall intimate to the Registry as directed herein above, and if the Registry finds that the matter is incomplete for some reason or the other, it shall place the matter before the learned Chief Justice of India on the administrative side for fixing a date for completion of the record.
9. Call on date fixed.