Quashed

Namdeo Hambira Babar Annd Ors. v. Gajanan Bhauso Babar and Ors.

Bombay HC18 Dec 2014WP/3307/2014

Case brief

AI extract

What is this about?

The Bombay High Court held that a Writ Petition challenging a Maha Lok Adalat award is maintainable because the order was inconsistent with the Trial Court's direction not to pass a decree due to pending tenancy proceedings. The Court quashed the award and restored the suit to the Trial Court to examine the legality of the compromise under the Bombay Tenancy Act.

What did the court decide?

The award of the Maha Lok Adalat and the impugned decree passed by the Trial Court on 29th July 2012 are quashed and set aside; the suit is restored to the file of the Trial Court.

Namdeo Hambira Babar Annd Ors. Vs Gajanan… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3307 OF 2014

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Namdeo Hambira Babar & Others. .. Petitioners Vs Gajanan Bhauso Babar & Others. .. Respondents

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Shri Sunil G. Jagdane for the Petitioners. Shri Milind Deshmukh for the Respondent Nos.1 to 3. Shri V.P. Malvankar, AGP 'A' Panel for Respondent No.4.

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CORAM : A.S. OKA & A.S.GADKARI, JJ DATED : 18TH DECEMBER 2014

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ORAL JUDGMENT : ( PER A.S. OKA, J )

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. On the last date, the parties were put to the notice that the Petition will be taken up forthwith for final disposal. Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the first to third Respondents. We have also heard the learned AGP for the State fourth Respondent.

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Rule. The Advocate for the first to third Respondents waives service. The learned AGP also waives service for the State. Taken up forthwith for final disposal. The challenge in this Petition under Articles 226 and 227 of the Constitution of India is to a decree/Award passed by a Lok Adalat in a suit on the basis of the

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consent terms which were filed before the regular Court few months before the impugned decree was passed.

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The Petitioners in this Petition are the Plaintiffs in Regular Civil Suit No.14 of 2012. The suit was filed for injunction in relation to the agricultural lands described in Paragraph 1 of the Plaint. On 17^th March 2012, the Petitioners and the first to third Respondents herein (who are Defendants in the said suit) filed consent terms. On the very day, the learned Civil Judge, Junior Division at Sangola, DistrictSolapur, passed an order recording that the contents of the compromise have been admitted by the parties. However, he directed the parties to produce relevant documents of the proceedings pending under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short “the said Act”) in respect of the suit lands. The said order shows that the learned Judge was no inclined to pass a decree in terms of the consent terms without examining the proceedings under the said Act.

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It appears that notwithstanding the said order, the suit was placed before the Maha Lok Adalat held on 29^th July 2012. It appears that before the Maha Lok Adalat, a compromise was purportedly recorded in terms of the same consent terms and an award was made. Accordingly, a decree was passed by the learned Judge on 29^th July

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2012 in terms of the consent terms.

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It is not necessary to go into the various grounds of challenge for the reasons which we have recorded in this judgment.

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In view of the bar created by Sub-section (2) of Section 21 of the Legal Services Authorities Act, 1987 (for short “the said Act of 1987”), there is no remedy available to a party for challenging the award/order passed by the Maha Lok Adalat and, therefore, the present Petition has been filed under Articles 226 and 227 of the Constitution of India.

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It will be necessary to make a reference to the order dated 17^th March 2012 passed by the learned Trial Judge on the consent terms filed by the Petitioners and the first to third Respondents. The said order reads thus:

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“Heard both sides. They all are present. Identification duly made contents of compromise are admitted voluntarily when read out to parties matter is settled through advocate mediator. Hence verified keep for order, with direction to parties to file all relevant papers from tenancy proceedings pending before Revenue Authority.”

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The said order makes it clear that without perusal of the proceedings under the said Act in relation to the suit lands, the learned Trial Judge was not willing to pass a decree in terms of the compromise.

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Therefore, even after the verification of the consent terms, the learned Trial Judge kept the suit pending for passing orders after perusal of the proceedings under the said Act.

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One of the clauses in the consent terms is regarding surrender of tenancy rights by the Petitioners to the first to third Respondents. It is perhaps due to this clause that the learned Trial Judge did not pass a decree in terms of the compromise though the compromise was verified by him. After having perused the consent terms, we are of the view that the learned Judge was right in doing so as there was a clause in the consent terms providing for the surrender of agricultural tenancy.

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When the consent terms are filed before a Civil Court, the Court cannot mechanically pass a decree in terms of the consent terms. The Court is required to examine whether the compromise is lawful. Only after the Court finds that the compromise is lawful, a decree in terms of the compromise can be passed. The order dated 17^th March 2012 suggests that the learned Trial Judge intended to examine the legality of the compromise and, therefore, he did not pass a decree in terms of the compromise immediately after the compromise was filed and verified.

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The adjudication which the learned Trial Judge intended to make could not have been made by the Maha Lok Adalat. In fact, on the face of the order dated 17^th March 2012, the suit ought not to have been referred to the Maha Lok Adalat as the learned Judge even after verification of the compromise, did not pass a decree in terms of compromise. The order passed by the Maha Lok Adalat is not only inconsistent with but is contrary to the order passed by the learned Trial Judge on 17^th March 2012. Under Section 89A of the Code of Civil Procedure, 1908, a Court can refer a suit for settlement through Lok Adalat. In such a case, a reference to Lok Adalat is required to be made in accordance with Sub-section (1) of Section 20 of the said Act of 1987

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which reads thus:

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“20. Cognizance of cases by Lok Adalats .-

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(1) Where in any case referred to in clause (i) of sub-section (5) of Section 19-

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(i) (a) the parties thereof agree; or

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(b) one of the parties thereof makes an application to the court,

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for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or

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(ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat; Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties.

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There is nothing on record to show that both the parties agreed to make a reference to Lok Adalat or one of the parties applied for a reference to Lok Adalat. Hence, this reference was made under clause (ii) of Subsection (1) of Section 21. Hence, without recording a satisfaction that the case was appropriate one to be taken cognizance by Lok Adalat, a reference to Lok Adalat could not have been made. In fact, in view of earlier order by the Court, this was not a fit or appropriate case for reference to Lok Adalat. Only for adding to the numbers of the cases disposed of by Maha Lok Adalat, such a reference cannot be made.

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Under Rule 3 of Order XXIII of the code of Civil Procedure, 1908, a Court cannot pass a decree in terms of compromise unless the compromise is lawful. Therefore, even a Lok Adalat cannot pass an Award in terms of compromise unless the compromise is lawful. In the present case, even assuming that the suit could have been sent to Lok Adalat, in the light of the order of the Court dated 17^th March 2012, it was all the more necessary for the Lok Adalat to consider the issue of legality of compromise. If a Lok Adalat has a doubt about the legality of settlement made before it, instead of passing an Award, the case must be returned to the Regular Court. Only the Regular Court can decide the issue of legality of compromise. Hence, we propose to set aside the Award made by the Maha Lok Adalat on 29^th July 2012 and

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consequential consent decree passed by the Trial Court on the basis of the consent terms. We make it clear that we are making no adjudication on the legality and validity of the consent terms which are already on record. It is ultimately for the Trial Court to pass an appropriate order on the consent terms after hearing the parties.

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We, accordingly, pass the following order:

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ORDER :

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(a) The Award made by the Maha Lok Adalat on 29^th July 2012 (Exhibit-D to the Petition) is hereby quashed and set aside;

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(b) The impugned decree dated 29^th July 2012 passed by the learned Trial Judge in Regular Civil Suit No.14 of 2012 is hereby set aside and the Regular Civil Suit No.14 of 2012 is restored to the file of the learned Civil Judge, Junior Division, Sangola;

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(c) If the parties to the suit have not filed copies of the proceedings under the Bombay Tenancy & Agricultural Lands Act, 1948, they shall do so on the

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date fixed by this Court for their appearance;

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(d) We direct the Petitioner and the first to third Respondents to appear before the learned Civil Judge, Junior Division, Sangola, on 12^th January 2015 at 11.00 a.m.;

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(e) The learned Trial Judge shall pass an appropriate order on the consent terms at Exhibit-11 after considering the proceedings under the Bombay Tenancy & Agricultural Lands Act, 1948 and after hearing the parties;

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(f) An appropriate order shall be passed by the learned Trial Judge on the consent terms at Exhibit-11 as expeditiously as possible and preferably within a period of two months from the date fixed for appearance of the parties;

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