Rajesh D. Darbar & Ors vs Narasingrao Krishnaji Kulkarni & Ors

These appeals are directed against the common judgment

of the High Court of Karnataka at Bangalore. The three

appeals which disposed of by the judgment were preferred

under Section 72(4) of the Bombay Public Trusts Act 1950

(for short the Act) wherein challenge was to the common

judgment and order dated 12.11.2003 passed in Civil

Miscellaneous Nos.60-62/2000 on the file of the Court of the

Second Additional District Judge, Bijapur. The dispute

relates to the elections claimed to have been conducted by

two rival groups for the Managing Committee of the Vidya

Vardhak Sangh, Bijapur, which is a society registered under

the Societies Registration Act, 1860 (in short the

'Societies Act'). It is also a registered body under the

provisions of the Act. The dispute arose because names of

38 persons were included in the electoral rolls for the

election. While the appellants claim that the 38 persons

whose names are included in the electoral roll were not

eligible to participate in the process of election, the

other group, that is, respondents 1 to 12 contested the

claim. Initially after the election, the elected Committee

started functioning in October 1996, as the date of election

was 6.10.1996. There is no dispute that subsequent

committees have been elected as the term of office is 3

years. But the basic dispute about the eligibility of the

38 persons still continues to haunt the Society. We need

not go into the various disputes both factual and legal in

detail. Two points have been urged by learned counsel for

the appellants. They pointed out that the High Court lost

sight of the fact that by passage of time the dispute as

regards the validity of the election in October 1996 became

non est. Secondly, the High Court erroneously came to the

conclusion that the 38 persons were legally inducted as

members. Such conclusion was arrived at by proceeding on

erroneous premises. The High Court committed a faux pas by

holding that the application filed by the respondents 1 to

12 for adducing additional evidence was not dealt with by

the Charity Commissioner thereby prejudicing case of the

respondents. It was pointed out by the appellant that the

application was not pressed by the applicants and it is not

as if the Charity Commissioner had not dealt with the

application in the proper perspective.

Per contra, the learned counsel for the respondents 1

to 12 submitted that the dispute did not become infructuous

by passage of time as these basic issues regarding

eligibility remained. Further, the materials relied upon by

the High Court to conclude that 38 persons were legally

inducted as members cannot be faulted because of the

materials considered by the High Court.

The impact of subsequent happenings may now be spelt

out. First, its bearing on the right of action, second, on

the nature of the relief and third, on its importance to

create or destroy substantive rights. Where the nature of

the relief, as originally sought, has become obsolete or

unserviceable or a new form of relief will be more

efficacious on account of developments subsequent to the

suit or even during the appellate stage, it is but fair that

the relief is moulded, varied or reshaped in the light of

updated facts. Patterson Vs. State of Alabama [(1934) 294

U.S.600, 607], illustrates this position. It is important

that the party claiming the relief or change of relief must

have the same right from which either the first or the

modified remedy may flow. Subsequent events in the course

of the case cannot be constitutive of substantive rights

enforceable in that very litigation except in a narrow

category (later spelt out) but may influence the equitable

jurisdiction to mould reliefs. Conversely, where rights

have already vested in a party, they cannot be nullified or

negated by subsequent events save where there is a change in

the law and it is made applicable at any stage. Lachmeshwar

Prasad vs. Keshwar Lal (1940 FCR 84 = AIR 1941 FC 5) falls

in this category. Courts of justice may, when the

compelling equities of a case oblige them, shape reliefs –

cannot deny rights – to make them justly relevant in the

updated circumstances. Where the relief is discretionary,

Courts may exercise this jurisdiction to avoid injustice.

Likewise, where the right to the remedy depends, under the

statute itself, on the presence or absence of certain basic

facts at the time the relief is to be ultimately granted,

the Court, even in appeal, can take note of such supervening

facts with fundamental impact. This Court's judgment in P.

Venkateswarlu v. The Motor & General Traders (AIR 1975 SC

1409) read in its statutory setting, falls in this category.

Where a cause of action is deficient but later events have

made up the deficiency, the Court may, in order to avoid

multiplicity of the litigation, permit amendment and

continue the proceeding, provided no prejudice is caused to

the other side. All these are done only in exceptional

situations and just cannot be done if the statute, on which

the legal proceeding is based, inhibits, by its scheme or

otherwise, such change in cause of action or relief. The

primary concern of the Court is to implement the justice of

the legislation. Rights vested by virtue of statute cannot

be divested by this equitable doctrine (See V.P.R.V.

Chokalingam Chetty vs. Seethai Ache and Ors.(AIR 1927 PC

252).

The law stated in Ramji Lal Vs. State of Punjab, [ILR

(1966) 2 Punj 125]=(AIR 1966 Punj; 374 (F.B) is sound:

"Courts do very often take notice of events

that happen subsequent to the filing of

suits and at times even those that have

occurred during the appellate stage and

permit pleadings to be amended for including

a prayer for relief on the basis of such

events but this is ordinarily done to avoid

multiplicity of the proceedings or when the

original relief claimed has, by reason of

change in the circumstances, become

inappropriate and not when the plaintiff's

suit would be wholly displaced by the

proposed amendment (see Steward Vs The North

Metropolitan Tramways Company (1885) 16 QBD

178) and a fresh suit by him would be so

barred by limitation."

These aspects were highlighted by this Court in

Rameshwar and Ors. vs. Jot Ram and Ors. (AIR 1976 SC 49).

The courts can take notice of the subsequent events and can

mould the relief accordingly. But there is a rider to these

well established principles. This can be done only in

exceptional circumstances, some of which have been

highlighted above. This equitable principle cannot,

however, stand on the way of the court adjudicating the

rights already vested by a statute. This well settled

position need not detain us, when the second point urged by

the appellants is focussed. There can be no quarrel with the

proposition as noted by the High Court that a party cannot

be made to suffer on account of an act of the Court. There

is a well recognised maxim of equity, namely, actus curiae

neminem gravabit which means an act of the Court shall

prejudice no man. This maxim is founded upon justice and

good sense which serves a safe and certain guide for the

administration of law. The other maxim is, lex non cogit ad

impossibilia, i.e. the law does not compel a man to do that

what he cannot possibly perform. The applicability of the

abovesaid maxims has been approved by this Court in Raj

Kumar Dey and Ors. vs. Tarapada Dey and Ors. (1987 (4) SCC

398), Gursharan Singh vs. New Delhi Municipal Committees

(1996 (2) SCC 459) and Mohammed Gazi vs. State of M.P. and

Ors. (2000(4) SCC 342).

On facts where the High court has slipped into error

is by observing that the Charity Commissioner committed

mistake by ignoring the documents which the respondents 1 to

12 wanted to produce and for which purpose an application

was filed. The High Court observed that though necessary

application to file additional evidence was filed before the

Charity Commissioner, unfortunately the Charity Commissioner

did not pass any order on that application and this lapse of

the Charity Commissioner would result injustice to the

parties. Undisputedly, the aforesaid application was not

pressed before the Charity Commissioner. That being the

position, the question of the Charity Commissioner passing

any order on that application did not arise. The High Court

has relied upon the documents which the respondents 1 to 12

wanted to produce as additional evidence before the Charity

Commissioner. It was not as if the Charity Commissioner had

ignored these documents by not passing any order on the

application filed. On the contrary as noted above, the

application itself was not pressed. On this score alone,

judgment of the High Court is indefensible.

Several courses are open in view of the aforesaid

finding. But we feel it would be appropriate, taking note

of the passage of time and the nature of the dispute

revolving around the question whether 38 persons were

rightly included in the electoral rolls, if the matter is

heard by the prescribed Appellate Authority. It is

submitted by learned counsel for the parties that by the

Hindu Religious Institutions and Charitable Endowments Act

1997, Karnataka Act No.33 of 2001 (hereinafter referred as

Endowments Act), the Bombay Public Trusts Act 1950 has been

repealed.

As the basic issue revolves around as noted supra on

the question of the legality of their membership and the

eligibility of 38 persons to participate in the election

held in the year 1996, let the election be held for the

Committee under the directions and supervision of the

Appellate Authority provided under the Endowments Act.

Before issuing directions for holding election, the said

authority shall decide about the eligibility of the 38

persons by deciding whether the names of the concerned 38

persons were rightly included in the electoral rolls

prepared by the respondents 1 to 12 for election of members

to the Committee which was held on 6.10.1996. Parties shall

be permitted to place all such materials on which they place

reliance to justify their respective claims and stands. We

make it clear we have not expressed any opinion on the said

question. The appeals are disposed of accordingly leaving

the parties to bear their respective costs.

Contempt Petition (C)Nos. 245-247/2003 and 282-284/2003

No orders are necessary to be passed in these

petitions in view of our judgment delivered today in SLP(C)

Nos. 6441-6443/2003.