Andhra HC (Pre-Telangana)
S.V.K. Sreenivasa Raghavan vs T.T. Devasthanam Rep. By Its Executive ... on 18 July, 2007
Equivalent citations: 2007(5)ALD832
JUDGMENT V.V.S. Rao, J.
1. The first appellant is the plaintiff. He filed the suit in O.S. No. 98 of 1977 on the file of the Court of the Additional Subordinate Judge, Tirupati. He prayed for a declaration that he is not a subordinate or servant or officeholder under the sole defendant, namely, Tirumala Tirupati Devasthanams (TTD, for brevity), to set aside the order of removal, dated 17.02.1977 passed by TTD and for permanent injunction restraining TTD and its subordinates from interfering with the rights of the plaintiff as Dharmakartha of Sri Manavala Mahamuni Temple (Mahamuni Temple, for brevity). He also sought for a mandatory injunction directing the TTD to permit the plaintiff to enter upon 'Vanthu' (joint right in management of Temple). TTD contested the suit. Initially, the trial Court decreed the same on 17.06.1985, against which Appeal being A.S. No. 114 of 1985 filed on the file of the Court of the District Judge, Chittoor. By Judgment, dated 08.12.1989, the same was allowed and the matter was remanded to trial Court. On remand, the trial Court decreed the suit as prayed for on 07.06.1990. This time, however, the plaintiff was not lucky and the appeal of TTD being A.S. No. 87 of 1990 was allowed on 09.07.1997. This Second Appeal arises out of it. While the matter is pending in this Court, the second appellant filed an application claiming 'Vanthu' and seeking to implead as second appellant. The same was ordered by this Court on 23.10.1998. However, for the sake of convenience, first appellant is referred to as plaintiff.
2. The case of the plaintiff is in brief as follows. Mahamuni Temple situated within the premises of Sri Govindaraja Swamy Temple in Tirupati, belongs to two branches of Veeravalli family. The plaintiff belongs to Acharyapurushas of TTD and is entitled to Honours, privileges and emoluments. As per the custom and usage, Dharmakarthaship of Mahamuni temple always vested in Veeravalli family and has been enjoyed by successive generations. All the family members are entitled for being appointed as Paricharikas for rendering Kainkaryams in the temple. The vacant land adjacent to the temple, the jewels, vessels and utensils were all endowed by family of Dharmakartas. The income from the temple was also enjoyed by the members of Veeravalli family. However, TTD got included suit temple in the list of minor temples without consent of Dharmakarthas. But, there is no divestment of Management under Section 34 of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (Act No. 17 of 1966, for brevity). Therefore, the plaintiff cannot be treated as office holder or servant of TTD. The plaintiff and his predecessors were complying with the provisions of Act No. 17 of 1966 or the Rules made thereunder and were executing Khararunama, which is in arrangement among branches of family for rendering service periodically from time to time. In spite of the same, TTD issued Memo, dated 01.07.1976 alleging that plaintiff disobeyed the orders of TTD on 01.12.1975 by preventing employees of TTD from collecting Harati fee from pilgrims. The plaintiff gave an explanation. Another Memo, dated 26.08.1976 was issued alleging same imputations. Yet another explanation was submitted by plaintiff on 08.09.1976. TTD issued another notice on 24.12.1976 to which plaintiff submitted explanation. The Deputy Executive Officer of TTD passed order removing the plaintiff from hereditary office of Dharmakartha Mirasi of Mahamuni temple. When the plaintiff's turn as per 'Vanthu' was to commence on 13.11.1977, TTD issued proceedings, dated 12.11.1977 and prevented the plaintiff from rendering service in the temple.
3. TTD in its written statement averred and alleged as follows. Mahamuni temple is one of the sub-temples of Sri Govindaraja Swamy Temple included in TTD temple in 1951. The same is under control of TTD. The plaintiff is hereditary Mirasidar rendering service. He is under administrative control of the TTD. He is also executing Khararunama while entering 'Vanthu' with an undertaking that he will be responsible to account to the Devasthanams and also responsible for jewels and vessels entrusted to him. When TTD introduced Harati fee in Mahamuni temple, the plaintiff objected for collection of Harati fee from the devotees. He questioned the authority of the TTD and defied the orders of the defendant on various occasions. Therefore, disciplinary action was taken as per the Resolution of the Board of Trustees of TTD being Resolution No. 3309, dated 14.02.1977. As per the Resolution, services of plaintiff as Mirasidar was terminated on 17.02.1977.
4. The trial Court framed ten (10) issues. One T.A.P. Srinivasan, father of first appellant was examined himself as P.W. 1. Through him, the plaintiff marked Exs. A.1 to A.20. The clerk and UDC in the temple section of TTD were examined as D.Ws. 1 and 2 respectively. They also marked Exs. B.1 to B.16. The notices/memoranda issued by the TTD and explanations submitted by the plaintiff are marked as Exs. A.1 to A.9 and the proceedings terminate the plaintiff as hereditary Mirasidar is marked as Ex.A.11 whereas the proceedings, dated 12.11.1977 prohibiting the plaintiff from performing his 'Vanthu' and directing the services to be rendered in the temple departmentally is Ex. A.12. The Khararunamas executed by the plaintiff were marked as Exs. B.2 and B.3 and Resolution of TTD Board as Ex. B.6.
5. On considering the evidence on record, trial Court held that Mahamuni temple is not a private temple and it is a sub-temple of Govindaraja Swamy temple. It was also held that the plaintiff has no title to the plaint schedule vacant site and that he is not entitled to for declaration to that effect. The trial Court further held that the relief of mandatory injunction had become infructuous in view of the interim orders passed by the trial Court. But on issue Nos. 3 and 4, which are crucial for consideration in the Second Appeal, the trial Court held that plaintiff is not subordinate, servant or office holder of TTD under Act No. 17 of 1966, and that the order of removal Ex. A.11 is not valid and binding on the plaintiff.
6. By the time, the trial Court delivered Judgment on 07.06.1990, Act No. 17 of 1966 was repealed by A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act No. 30 of 1987). But, the trial Court appears to have ignored the effect of the amending Act on the right in respect of which the remedy was sought in the suit. Be that as it is, the first appellate Court in its Judgment, dated 09.07.1997 in A.S. No. 87 of 1990, again adverted to the ten issues as appellate points for consideration. It came to conclusion that Mahamuni temple is not a private temple and that it is a sub-temple under the control of TTD. After referring to the provisions of Act No. 30 of 1987, the first appellate Court came to the conclusion that Ex. A.11 (termination order) passed by TTD is valid and binding. It also concluded that having regard to Section 77 of Act No. 17 of 1966, the suit to set aside Ex. A.11 is not maintainable. The first appellate Court also held that order of removal of plaintiff is valid and binding on the plaintiff.
7. Learned Counsel for the appellants, Sri Y.Srinvasa Murthy, submits that the first appellate Court did not appreciate the status of the plaintiff and Management of suit temple even after coming into force of Act No. 30 of 1987. Secondly, he submits that there was sufficient evidence to show that the plaintiff was hereditary Dharmakarta or trustee of Mahamuni temple and TTD would not have passed an order terminating him as Dharmakarta. According to learned Counsel, the inclusion of Mahamuni temple in Schedule I of Act No. 30 of 1987 as a sub-temple of TTD does not alter the character of the temple as being a private temple. He also submits that there was no prohibition for the civil Court to entertain a suit in a dispute between Dharmakarta of a temple and Department of Endowments.
8. Learned standing counsel for TTD Sri M. Adinarayana Raju submits that Mahamuni temple is not a private temple. It is sub-temple of Sri Govindaraja Swamy temple, which is included in Schedule I for the purpose of constituting TTD. Both the Courts have held that Mahamuni temple is not a private temple and therefore, the question cannot be re-agitated again. Secondly, he submits that the plaintiff is an office holder and therefore, he is subject to disciplinary control of TTD, which is entitled to suspend or remove an office holder including a hereditary office holder. Thirdly, Civil Court has no jurisdiction to entertain the suit as the Deputy Commissioner is alone competent under the Act No. 17 of 1966 to decide the status of the religious institution or the status of a person claiming hereditary management rights to such institution.
9. Lastly, learned standing counsel submits that in view of the Act No. 30 of 1987 repealing Act No. 17 of 1966 and also abolition of hereditary trusteeship as well as hereditary Archakatvam, the suit itself does not survive. According to the learned Counsel, this Court shall have to apply the law as it exists and cannot entertain the Second Appeal, which has been rendered infructuous by reason of Act No. 30 of 1987.
10. It is now well settled that in the Second Appeal, the aggrieved has to show that the case involves a substantial question of law. Such substantial question of law should be precisely stated in the Memorandum of Second Appeal. Nonetheless, it is also permissible for the High Court to formulate substantial question of law involved in the case at the time of admission. When once substantial question of law is formulated at the time of preliminary hearing, there cannot be any deviation at the time of final hearing or final consideration of the Second Appeal by the Court. Under no circumstances, a Second Appeal would lie on a question of fact but whether or not it is a question of fact would depend on circumstances of each case. What is a question of fact? What is a question of law and what is a mixed question of fact and law are all settled legal propositions. Therefore, the High Court at the time of preliminary hearing for the purpose of Admission of Second Appeal, generally exercises caution and care before formulating a substantial question of law.
11. In a recent Judgment in Hero Vinoth v. Seshammal , the Supreme Court laid down that whatever be the approach of the first appellate Court in appreciating evidence and arriving at conclusion on factual controversies; if question of fact is involved, Second Appeal would not lie. In Sugani v. Rameshwar Das , the Supreme Court has culled out the following principles to be kept in mind while dealing with Second appeal.
(i) If the trial Court and first appellate Court rejected any evidence, the same cannot be a ground for interference in the Second Appeal;
(ii) In case two inferences are possible from a set of circumstances, the one drawn by the lower appellate Court is binding on the High Court in the Second Appeal and adopting any other approach is not permissible;
(iii) The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusion is erroneous and contrary to mandatory provisions of law or settled precedent by the Apex Court or based on inadmissible evidence;
(iv) If the question of law termed as substantial question stands already decided by a Larger Bench or Privy Council or Federal Court or Supreme Court, such a question cannot be treated as substantial question of law under Section 100 of CPC;
(v) Where a point of law has not been pleaded, the same should not be allowed to be raised as substantial question of law in the Second Appeal;
(vi) Mere appreciation of facts, documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law;
(vii) If the lower appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in Second Appeal treating it as a substantial question of law; and
(viii) Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or procedure requiring interference in second appeal.
12. In Hero Vinoth (supra), the Supreme Court held as under:
After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law....
...It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact.
13. In this case, while admitting the Second Appeal on 29.10.1997, this Court formulated the following substantial question of law which themselves can be dealt with as points for consideration in the Second Appeal. These are:
(a) Whether inclusion of the suit temple in the schedule as one of the temples under the T.T. Devasthanams alters the charter of the temple which was initially a private temple?
(b) Whether the plaintiff is a servant or an office holder under the control of T.T. Devasthanams and whether the impugned order of removal dated 17.02.1977 is valid? And
(c) Whether the suit is not maintainable under Section 9 of C.P.C?
In Re Question Nos. 1 to 3:
Government of Andhra Pradesh constituted A.P. Endowments Commission (Endowment Commission, for brevity) under the Chairmanship of Justice Challa Kondaiah, Retired Chief Justice of this Court, to review the system of Management of properties of Hindu Religious and Charitable Institutions, the hereditary system of Archakas and other office holders and Mirasidars and other related aspects of Endowments Administration. The Commission after detailed study of various aspects of religious and charitable institutions in Hindu system submitted a report in February, 1986. Recommendations made by the said Commission led to the repeal of the Act No. 17 of 1966 and enactment of Act No. 30 of 1987. The report contains minute details of history of TTD besides others.
The legislative control of administration of TTD commenced with Regulation VII of 1917 of Madras Presidency, which was replaced by Madras Hindu Rights Endowments Act, 1927. As the scheme in vogue for the Management of the temple of Lord Venkateswara was found defective, TTD Act, 1933 (Madras Act XIX of 1933) was enacted, which was again repealed by Hindu Religious and Charitable Endowments Act, 1951. Provisions in Chapter IX of 1951 Act (Sections 80 to 85) dealt with TTD. Under this Act, a whole time bureaucrat designated as Executive Officer was appointed giving policy making power to a Board of Trustees. After formation of A.P., so as to consolidate the law relating to administration and governance of Charitable and Religious Institutions Act, 17 of 1966 was enacted repealing 1951 Act as adopted in Andhra Pradesh. Chapter XIV of 1966 Act contained various provisions to regulate administration of TTD. In 1979, A.P. Legislature thought that existing provisions in 1966 Act were inadequate for administration of TTD, which is a major and unique temple and therefore, Tirumala Tirupathi Devasthanams Act, 1979 (A.P. Act No. 20 of 1979), was enacted.
14. A brief reference as above to Endowments Legislation in Andhra Pradesh would show that at least from 1951 onwards, TTD with all its sub-temples were brought under control of the State though hereditary Archakas, Mirasidars and other office holders were continued in temple administration. They had a share in the offerings made to the deity. As observed by Endowments Commission (Volume-III, pp.45), after, 1979, Archakas were not permitted to take kanukas offered to Sri Govindaraja Swamy temple. They only had a share in Hundi and Harathi tickets in sub-temples. As certain hereditary rights came to an end in 1951 in all the temples under TTD, relationship between the administration of various hereditary office holders were governed by the agreements or the relevant regulations.
15. Section 2(27) of Act No. 17 of 1966 defined 'TTD' as temples specified in First Schedule with endowments and properties thereof. Nine temples are main temples including Sri Venkateswara Swamy temple of Tirumala Hills and Sri Govindaraja Swamy temple at Tirupathi with other sub-temples. Sri Manavala Mahamuni temple is a sub-temple of Sri Govindaraja Swamy temple. Therefore, Mahamuni temple or any other sub-temple included in First Schedule of Act No. 17 of 1966 (before 1979 TTD Act) or in the First Schedule of Act No. 30 of 1987 Act are not private temples. Even prior to coming into force of 1966 Act, the Mirasidars, Archakas, office holders and servants who were rendering service to the temple, were having only limited hereditary rights to have share in the Harathi and Hundi collections as well as Prasadams offered to the Diety. All this changed after enactment of Act No. 30 of 1987. Section 16 of this Act abolished hereditary trusteeship. Rights of a person for the Office of hereditary trustee or mutawalli or dharmakarta were abolished. Section 34(1) of the Act No. 30 of 1987 abolished all rights (whether hereditary or contractual) of a person holding any office of Pedda Jeeyangar, Chinna Jeeyangar, Mirasidar, Archaka, Pujari or any other office or post. Section 144 also put an end to the system of paying a share in the Kanukas (offerings to the temple and Diety) in kind or cash by the devotees in Hundi, Harati plate or otherwise. By reason of this, the right of a trustee, Dharmakarta, Mutawalli, Archaka or any office holder including Mirasidar to enforce a right to a share in the Kanukas, Prasadams and Panyarams stood abolished.
16. The legal position is not disputed by learned Counsel for plaintiff/first appellant nor can be denied. The contention, however, is that when the right of the plaintiff as on 28.05.1987 (when Act No. 30 of 1987 came into force) as Vantudar of Mahamuni temple is recognized as a hereditary office holder or Dharmakarta as on that day, he would be entitled to have the benefit of Sections 34(2) and 142 and other Honours as are bestowed on hereditary office holders. Sections 34(2) and 142 of Act No. 30 of 1987 reads as under:
34. Abolition of hereditary rights in Mirasidars, Archakas, and other office holders and servants:
(1) omitted (2) Every office holder and servant mentioned in Clause (1) of Sub-section (1) holding office as such on the date of commencement of this Act shall notwithstanding the abolition of the hereditary rights, continue to hold such office or post on payment of only such emoluments and subject to such conditions of service referred to in Sub-sections (3) and (4) of Section 35.
142. Savings : Nothing in this Act shall-
(a) affect any honour to which any person is entitled by custom, the performance of or interference with the religious worship, ceremonies and poojas in religious institutions according to the sampradayams and Agams followed in such institutions; or
(b) authorize any interference with the religious or spiritual functions of the head of a math including those relating to the imparting of religious instructions or rendering of spiritual service.
17. A plain reading of the above two provisions would show that Archaka, Dharmakarta, Mirasidar, Pedda Jeeyangar, China Jeeyangar or any office holder who prior to enforcement of new legislation entitled to the temple Honours as per Sampradayams and Agams followed in a religious institution shall continue to receive such Honours. Further, if person was holding an office as an Archaka, office holder or a service of the temple as on the date of commencement of the new Act, such person shall notwithstanding the abolition of hereditary rights continue to hold such office or post on payment of emoluments subject to service conditions prescribed by the Government under Section 35(3) and (4) of Act No. 30 of 1987.
18. In this case, both the Courts below have found that Mahamuni temple is not a private temple and that it is a sub-temple of Sri Govindarama Swamy, which is part of TTD. This being a question of fact, as rightly submitted by the learned standing counsel for TTD, this Court cannot again go into the question. Even otherwise, the law for the last more than seven decades has treated Mahamuni temple as public temple and the same certainly alters the charter of the temple.
19. The language employed in Sections 16, 34 and 144 of Act No. 30 of 1987 (all starting with non-abstante clause) does not leave any doubt as to the nature of Mahamuni temple or the rights of the successors of Vantudars flowing from the so called charter of the temple. The legislative wisdom to enact such provisions prompted by a purpose as recommended by A.P.Endowments Commission, i.e., abolition of the rights of all hereditary holders of offices in public interest, cannot be questioned.
20. In Pannalal Bansilal Patil v. State of Andhra Pradesh , Sections 16, 34 and 144 of Act No. 30 of 1987 were challenged as ultra vires the Constitution of India being violative of Articles 14, 15(1), 25 and 26 of Constitution of India. The argument was repelled by the Supreme Court. The apex Court laid down as under. The predecessor Act of 1966 recognised customary right by which the legislature has power to take away such recognition and order every eligible Hindu to be considered for appointment as trustee in the manner prescribed by law.
21. Hereditary principle being inconsistent with Article 15(1), the legislature thought it fit to abolish the same. Moreover, by reason of hereditary nature of succession to trusteeship or mutawalli etc. inherently visited with mismanagement or misappropriation of the property of the charitable or Hindu religious institutions or endowments, the object of the endowment etc. thereby getting defeated. With a view to remedy the same and to effectuate proper and efficient management and governance of charitable and Hindu religious institutions and endowments, the Act was enacted. Instead of management by a single person, Chapter III introduced in Sections 15, 17, 18 and 19 as a composite scheme prescribing disqualifications and qualifications for trusteeship, procedure for appointment of trustees and appointment and constitution of the board of trustees so as to have collective, proper and efficient administration and governance of the institution and endowment. The abolition of the right to hereditary trusteeship, therefore, cannot be declared to be unconstitutional....
...Whether abolition of the emoluments under Section 144 is unconstitutional? It is seen that the object of the Act is to prevent misuse of the trust for personal benefit. It is founded on the report of the aforesaid Commission. It is a matter of legislative wisdom and policy. It is not the contention that the legislature has no competence to abolish the system of payment. As stated earlier, it is a legislative judgment reflective of the will of the sovereign people. The Court would give respect and primacy to the legislative judgment, rather than to judicial conclusion. So, we are of the considered view that Section 144 is not unconstitutional in relation to its application to charitable and religious institutions and endowments.
22. As mentioned supra, by reason of Section 34(2) and also by reason of observations made by the Supreme Court in the above case regarding involvement of founders or their legal heirs, hereditary Archakas or hereditary trustees (or their legal heirs) have been given limited rights, of course again subject to the provisions of the Act No. 30 of 1987 and/or the Rules made thereunder. Therefore, if the petitioner is able to succeed in his contention that Ex. A.11, dated 17.02.1997, terminating the petitioner is illegal and contrary to the provisions of Act No. 17 of 1966, the petitioner would not be entitled to maintain the suit after coming into force of Act No. 30 of 1987, because all hereditary rights stood abolished. The common law Court, while deciding the question whether any person is entitled to any legal character, cannot ignore the change in law. Indeed, the appellate Court under Order XLI Rule 33 of Code of Civil Procedure, 1908 (CPC) is empowered to mould the relief taking into consideration pendente lite changes in the legislation, regulating rights and duties of contestants to a suit.
23. In Veerappa v. Sivagami AIR (29) 1942 Madras 291, the Court of Subordinate Judge, Devakottai, passed a decree against Veerappa for recovery of money. He filed an application under Section 19 of Madras Agriculturists Relief Act to scale down the debt, the application was dismissed. He then filed Civil Miscellaneous Appeal, which was converted into Civil Revision Petition. The decreeholder argued that Section 19 of Debt Relief Act does not apply to decrees passed after commencement of Madras Act No. 4 of 1938. A Division Bench of Madras High Court considered the question whether the appellate Court is entitled to take into consideration the change in law and pass decree in accordance with the new law. Placing reliance on Muthuswami Iyer v. Kalyani Ammal AIR 1918 Madras 1299 : 38 Indian Cases 223 : 40 Madras 818, the Madras High Court held:
As pointed out in Muthuswami Iyer (supra), the authority of an appellate Court is not limited to determining the question whether the original Court was right according to the law in force at the time of its Judgment. It is entitled to pass such a decree as would be in accordance with any later enactment which came into operation subsequent to such date. To avoid anomalies and multiplicity of proceedings a party ought to make the application to the appellate Court for the relief he is entitled to under an enactment which came subsequent to the passing of the decree of the original Court and get the necessary relief in accordance with that enactment. The pendency of the appeal suspends the finality of the decree of the original Court and before a final decree is passed by it, all the relief which a party is entitled to and which would have been given by the original Court had the later enactment been in existence on the date on which it passed the decree should be urged before the appellate decree is passed, because once a decree is passed as pointed out by the Privy Council in Kotagiri Venkatasubbamma Rao v. Vellanki Venkata Rama Rao (2001) 24 Madras 1 : 27 I.A. 197, it is not open to a Court to amend or review a decree except under Section 152 or Order XLVII Rule 1 of Civil Procedure Code.
24. In Kotturuswami v. Setra Veeravva , placing reliance on Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri AIR 1941 FC 5, reiterating the above principle, the Supreme Court observed as under:
When this appeal came on for hearing the learned Advocate for the respondents took a preliminary objection that the suit field by the plaintiff must in any event fail, having regard to the provisions of S.14 of the Hindu Succession Act, 1956 (30 of 1956), hereinafter referred to as the Act. Hence, the present appeal arising out of that suit must also fail. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had not taken place then under the provisions of S.14 of the Act Veeravva became the full owner of her husband's estate and was not a limited owner thereof. Consequently, the appellants suit was not maintainable. In view of this submission we are of the opinion that the point raised by way of preliminary objection must first be considered and decided. It is well settled that an appellate court is entitled to take into consideration any change in the law.
25. In Pasupuleti Venkateswarlu v. The Motor and General Traders , the Supreme Court again referred to Lachmeshwar Prasad Shukul (supra), the Supreme Court laid down that:
First about the jurisdiction and propriety vis-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to event which stultify or render inept the decreetal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors of just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view.
26. Therefore, whatever right, privilege, Honour, the plaintiff or his co-vantudars were enjoying, stood abolished by reason of Sections 16, 34(1) and 144 of Act No. 30 of 1987. The suit being primarily for a declaration of such a right could not have been maintainable in the civil Court. Had there been Act 30 of 1987 or had there been its provisions in Sections 16, 34(1) and 144 in Act No. 17 of 1966, the trial Court could not have passed a decree in favour of the plaintiff. 20. In the background and regard to unignorable fact of old Act being repealed by new Act, if termination of the plaintiff under Ex. A.11, for other reasons is unsustainable, the plaintiff would be deemed to be a hereditary office holder entitled to - undisputedly or undeniably - limited right conferred by Section 34(2) of Act No. 30 of 1987.
27. Learned Counsel for the plaintiff did not seriously argue about the legality of Ex.A.7, termination order. The main argument is and had been before the lower Courts is that the plaintiff being Dharmakartha of Mahamuni temple is not a subordinate or office holder under the defendant and therefore he could not have been terminated applying the procedure or regulations which govern the service conditions of the servants and office holders. This Court is of considered opinion that after coming into force of Act No. 30 of 1987, his trusteeship stood abolished and therefore the plaintiff cannot persist with this argument. If he still seeks a declaration that he is Dharmakartha or hereditary Dharmakarta of Mahamuni temple, by reason of bar contained in Section 151 of Act No. 30 of 1987, the civil court could not have entertained the suit for declaration. The remedy of a person who claims to be hereditary trustee or a member of the family of hereditary trustee, is to file an application under Section 87 of Act No. 30 of 1987. In view of the same, this aspect of the matter need not be further probed.
28. Whether, at the relevant time, the plaintiff was Dharmakartha/Archaka/Office holder of Mahamuni temple? The issue No. 3 before the trial Court/point No. 3 before the appellate Court deals with this aspect. The trial Court found that the plaintiff is not an office holder or servant, but he is Dharmakartha of Mahamuni temple. The appellate Court recorded a finding that the plaintiff is not entitled for declaration that he is not a subordinate or office holder of Mahamuni temple. The appellate Court also observed that in correspondence between the plaintiff and defendant, the plaintiff was described as Mirasidar, Dharmakartha, trustee and/or office holder and that itself cannot lead to an inference that plaintiff is Dharmakartha not amenable to the jurisdiction and powers of the defendant. This Court has examined various documents marked during the trial. It is on record that the plaintiff executed Ex. B.3 Kararunama in favour of defendant describing himself as vanthudar having responsibility to perform Kainkaryams in Mahamuni temple. It only means that he was vanthudar as well as Archaka at the same time and also entrusted with valuable properties like jewelry and pooja vessels of the temple. Therefore it is not possible to differ with the conclusions of the first appellate Court. Ex. A.11 Termination order was preceded by exchange of notices in which the plaintiff was informed of the reasons for termination of his office. On this, as noticed supra, not much argument is made and therefore this Court is not inclined to go into the validity of the termination order.
29. The conclusion that the plaintiff was terminated as vanthudar/office holder/Archaka, after following the principles of natural justice, dos not entitle the plaintiff for any relied as prayed in the suit. But after coming into force of Act No. 30 of 1987, right is conferred on the hereditary office holders to continue as such subject to conditions of statutory rules. The plaintiff was terminated as Archaka/office holder while he was enjoying his vanthu. There is acceptable evidence that Veeravalli family was in-charge of the management, Kainkaryams and pooja of Mahamuni temple. It is also the case of the plaintiff that as per the agreement among the members of Veeravalli family, the plaintiff was enjoying vanthu along with three others and such vanthu falls once in four years of Sathamurai i.e., Moola Nakshatram day of the preceptor Sri Manavala Mahamuni. This was a pre-existing right which in small way, is also recognized by Section 142 of Act No. 30 of 1987. Hence who would be entitled to the benefit under Section 34(2), to continue as Archaka subject to statutory rules, is the matter to be decided by the appropriate statutory authorities. Civil Court is not competent to do the same. Insofar as this suit is concerned, the plaintiff (appellants) is not entitled for any declaration. The second appeal is devoid of merits and is accordingly dismissed without any order as to costs.