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CASE NO.: Appeal (civil)  5568-70 of 2003

PETITIONER: Rajesh D. Darbar & Ors.                                  

RESPONDENT: Vs. Narasingrao Krishnaji Kulkarni  & Ors.           

DATE OF JUDGMENT: 06/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising 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

       Leave granted.

       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

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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 â\200\223  cannot deny rights â\200\223 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.

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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

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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.