LAWS(BOM)-1946-8-6

GANGARAM GOVIND PASHANKAR Vs. SARDAR K R VINCHURKAR

Decided On August 26, 1946
GANGARAM GOVIND PASHANKAR Appellant
V/S
SARDAR K R VINCHURKAR Respondents

JUDGEMENT

(1.) THESE three applications relate to the modification of a scheme which was framed on appeal by this Court. In effect it is the scheme of the Court, and in view of the fact that the scheme itself contains no clause giving liberty to apply for a modification of the scheme, a preliminary objection has been taken to the effect that this Court has no jurisdiction to entertain the applications. The matter is not free from difficulty. In support of the application we have been referred to certain remarks of various learned Judges to the effect that the Court has an inherent jurisdiction to entertain an application of this sort, even though the scheme does not provide for liberty to apply in such a matter. But the difficulty of following those decisions blindly lies in the fact that they do not refer to Order XX, Rule 3, which has the effect of preventing Courts from altering their own decrees except in accordance with the provisions of Section 152 or the rules relating to review; and it cannot be denied that, in so far as a scheme framed by this Court on appeal is in effect a decree of this Court, what we are being asked to do is to alter our decree otherwise than in accordance with the provisions of Section 152 and the provisions for review.

(2.) IT is, however, argued that it is within our competence to do so. In England it is undoubtedly the practice of the Courts to modify their own schemes on mere application, even though it may be that the application is in practice made by the Attorney General and the scheme as framed ought to be regarded no less as the decree of the Court than it would be if it were a decree of an Indian Court; and it is also clear that this Court has the powers of the English Courts subject only to such modifications as may be necessary in view of Indian statutory provisions. IT is also clear that in India we have to be guided by the Civil Procedure Code, in particular by Order XX, Rule 3, and that in England there is no such statute as the Civil Procedure Code. Nevertheless it cannot be suggested that in England the principles underlying Order XX, Rule 3, relating to the alteration of decrees do not hold good in spite of their not having been reduced to writing, and it follows that, in BO far as the Court of Chancery in England is prepared to act on applications to modify its own schemes, it does so in spite of a principle which is as much applicable to England as it is to India.

(3.) WE have the authority of a bench of this Court to say that the Court can exercise its powers under Section 151 even though another remedy may be open to the parties: see Bhimappasaheb Gireppasaheb v. Ramappa (1944) 46 Bom. L. R. 725. And we have been referred to a number of other decisions in which decrees have been altered otherwise than in accordance with Section 152 or the provisions relating to review: see for example Debi Bakhsh Singh v. Habib Shah (1913) I. L. R. 35 All. 331, s. c. 15 Bom. L. R. 640, P. C. , Bharmal v. Bai Vishnabai (1932) 35 Bom. L. R. 365, Basangowda v. Churchigirigowda (1910) I. L. R. 34 Bom. 408, s. c. 12 Bom. L. R. 223. But all these are cases where justice plainly required some alteration in the decree. On the whole we are inclined to think that the true view to take of Order XX, Rule 3, is that its primary object is to prevent alterations being made merely because the Court which passed the decree had made a mistake. What we are being asked to do in this case is to alter a scheme not because it was a mistaken scheme in the first instance but because circumstances have now arisen which make it desirable for it to be altered; and looking at the matter from that point of view the obstacle that seems to be presented by Order XX, Rule 3, becomes much less formidable. WE think that in view of the various authorities which have held that the Court has inherent power to alter its own scheme even in the absence of a clause to that effect in the scheme and of the undoubted practice in England by which in a proper case a Court would always be prepared to alter its own scheme, we too ought to hold that the Court has an inherent power under Section 151 to alter its scheme on proper cause being shown and for the purposes mentioned in Section 151, namely the doing of justice and the prevention of abuse of the process of the Court. It is pointed out to us that in England the Courts are slow to modify their own schemes, and will never do so except with the utmost caution and upon the most substantial grounds and the clearest evidence not only that the scheme does not operate beneficially but that it can by alteration be made to do so consistently with the object of the foundation, and that incalculable mischief would ensue to all charities if this rule were not strictly observed: see Tudor on Charities, 5th edition, p. 190. But, subject to that limitation, we think that the Courts in India have power to modify their schemes even in the absence of a clause in the scheme itself to that effect.