D. Darbar & Ors Vs. Narasingrao Krishnaji Kulkarni & Ors  Insc
358 (6 August 2003)
Raju & Arijit Pasayat.
out of SLP(C) No.6441-6443 of 2003) WITH CONTEMPT PETITION (C) NOS.
245-247/2003 And CONTEMPT PETITION (C) Nos. 282-284/2003 ARIJIT PASAYAT,J
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.
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.
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 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.
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.
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).
2 Punj 125]=(AIR 1966 Punj; 374 (F.B) is sound:
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 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
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).
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.
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
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.
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.
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.