Smt Jayarangamma Vs Smt Rathnamma

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER AT ANNEXURE-E, DTD 20.2.2010 IN O.S.NO.35/2010 BEFORE CIVIL JUDGE JUNIOR DIVISION AT CHANNARAYAPATNA.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Petitioners are before this Court under Article 227 of the Constitution of India with a prayer to set aside the order dated 20.02.2010 passed in O.S.No.35 of 2010 which was pending before the Court of Civil Judge (Jr Dn), Channarayapatna by the Lok Adalath, based on the compromise petition filed by the parties to the suit.

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Heard the learned counsel appearing for the parties.

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O.S.No.35 of 2010 was filed before the jurisdictional

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civil Court by respondent no.1 herein seeking the relief of partition and separate possession of the suit schedule property. In the plaint in O.S.No.35 of 2010 it is averred that, the plaintiff is the daughter of defendant nos.1 & 2 in the said suit.

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One Sri. Govindegowda is arrayed as defendant no.1 and his wife Smt. Jayamma is arrayed as defendant no.2 in the suit. At

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the request of the parties, the suit was referred to Lok Adalath and before the Lok Adalath, the parties had filed a compromise petition under Order 23 Rule 3 of CPC, based on which the suit was disposed of in terms of the compromise petition by order dated 20.02.2010. Challenging the said order passed by the Lok Adalath, the petitioners are before this Court.

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Learned counsel for the petitioners submits that petitioner no.1 is the wife of Govindegowda and petitioner no.1 has executed a Gift Deed in favour of petitioner no.2 in respect of the property which was subject matter of the suit in O.S.No.35 of 2010. Petitioners are not parties to O.S.No.35 of 2010. The plaintiff and defendant no.2 were not at all related to Govindegowda. Govindegowda has died on 17.09.2020. Thereafter, the plaintiff and defendant no.2 in O.S.No.35 of 2010 are trying to interfere with the property. He also submits that the Lok Adalath could not have disposed of the suit for partition on the basis of the settlement reported by the parties in view of the judgment of the Co-ordinate Bench of this Court

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in the case of SMT. RENUKA V. SRI RAMANAND & ANR in

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W.P.No.103766 of 2018, disposed of on 31.03.2020 .

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Accordingly, he prays to allow the petition.

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Per contra , learned counsel for the respondents has

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opposed the prayer made in the petition. He submitted that petitioners are total strangers to the plaintiff and defendants in O.S.No.35 of 2010. At their request, the order impugned cannot be set aside. If they are aggrieved by the said order, they are required to file a separate suit. Accordingly, he prays to dismiss the petition.

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Perusal of the material on record would go to show that plaintiff in O.S.No.35 of 2010 claim to be the foster daughter of defendant no.1 - Govindegowda and defendant no.2 - Jayamma. The parties had settled the inter se dispute in O.S.No.35 of 2010 and had accordingly filed a compromise petition before the Lok Adalath and based on the same vide the order impugned the suit was decreed.

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In the case of SMT. RENUKA (supra) , the Coordinate Bench of this Court has observed that if the compromise petition is filed before the Court, it is for the Court

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to record the compromise and the matter cannot be referred to

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Lok Adalath. But the same is not the fact situation in the present case. In the present case, the parties who were referred to Lok Adalath by the Court had filed their compromise petition before the Lok Adalath and based on the same, the Lok Adalath has passed the impugned order and therefore, the order passed by the Co-ordinate Bench of this Court in the case of SMT . RENUKA (supra) cannot be made applicable to the facts of the present case.

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Section 21(2) of the Legal Services Authorities Act, 1987 (hereinafter referred to as 'the Act' for short) reads as follows:-

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"21. Award of Lok Adalat.—[(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section(1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court-fees Act, 1870 (7 of 1870).]"

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(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute,

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and no appeal shall lie to any court against the award"

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A reading of Sub Section 2 of Section 21 of the Act would make it very clear that an award passed by the Lok adalath shall be final and binding only on all the parties to the dispute, and no appeal shall lie to any Court against award passed by Lok Adalath.

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Regulation 17 of the National Legal Services Authority (Lok Adalats) Regulations 2009, reads as follows:-

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"17. Award. – (1) Drawing up of the award is merely an administrative act by incorporating the terms of settlement or compromise agreed by parties under the guidance and assistancefrom Lok Adalat.

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(2) When both parties sign or affix their thumb impression and the members of the Lok Adalat countersign it, it becomes an award. (see a specimen at Appendix-I) Every award of the Lok Adalat shall be categorical and lucid and shall be written in regional language used in the local courts or in English. It shall also contain particulars of the case viz., case number, name of court and names of parties, date of receipt, register number assigned to the case in the permanent Register (maintained as provided under Regulation–20) and date of settlement. Wherever the parties are represented by counsel, they should also be required to

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sign the settlement or award before the members of the Lok Adalat affix their signature.

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(3) In cases referred to Lok Adalat from a court, it shall be mentioned in the award that the plaintiff or petitioner is entitled to refund of the court fees remitted.

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(4) Where the parties are not accompanied or represented by counsel, the members of the Lok Adalat shall also verify the identity of parties, before recording the settlement.

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(5) Member of the Lok Adalat shall ensure that the parties affix their signatures only after fully understanding the terms of settlement arrived at and recorded. The members of the Lok Adalat shall also satisfy themselves about the following before affixing their signatures:

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(a) that the terms of settlement are not unreasonable or illegal or one-sided; and

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(b) that the parties have entered into the settlement voluntarily and not on account of any threat, coercion or undue influence.

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(6) Members of the Lok Adalat should affix their signatures only in settlement reached before them and should avoid affixing signatures to settlement reached by the parties outside the Lok Adalat with the assistance of some third parties, to ensure that the Lok Adalats are not used by unscrupulous parties to commit fraud, forgery, etc.

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(7) Lok Adalat shall not grant any bail or a divorce by mutual consent.

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(8) The original award shall form part of the judicial records (in pre-litigation matter, the original award may be kept with the Legal Services Authority or committee, concerned) and a copy of the award shall be given to each of the parties duly certifying them to be true by the officer designated by the Member-Secretary or Secretary of the High Court Legal Services Committee or District Legal Services Authority or, as the case may be, the Chairman of Taluk Legal Services Committees free of cost and the official seal of the Authority concerned or Committee shall be affixed on all awards."

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The petitioners are not parties to the award and a reading of Sub Section 2 of Section 21 of the Act would make it very clear that an award passed by the Lok Adalath shall be final and binding only on all parties to the dispute and not on a third party, who can always maintain a suit challenging such award. Petitioner No.1 herein claims to be the wife of deceased Govindegowda, who was defendant no.1 in the suit. The suit was decreed based on the compromise petition filed by the parties to the suit on 20.02.2010. Govindegowda had died on 17.09.2000. It is only after the death of Govindegowda, petitioner no.1 claiming to be his wife has approached this

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Court and petitioner no.2 is said to be the beneficiary of the alleged Gift Deed executed by petitioner no.1 in his favour in respect of the suit schedule property.

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The Division Bench of Hon'ble Andhra Pradesh in the case of NELLORE SUJANAMMA V. ATTIPALLI NAGI REDDY AND OTHERS - W.P.NO.121, 294 & 380 OF 2017 in similar circumstances, has observed that whenever there are disputed questions of facts involved, which cannot be adjudicated in a writ petition filed under Articles 226 and 227 of the Constitution of India, a third party who is not bound by the award is required to be relegated to the Civil Court. In the said judgment in paragraph no.3, it has observed as follows:

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"3. Under Section 21(1) of the Legal Services Authorities Act, 1987, award of the Lok Adalat shall be deemed to be a decree of civil court. Under sub-section (2) thereof, every award made by the Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any court against the award. An identical issue came to be decided by a Division Bench of this Court in Kothakapu Muthyam Reddy and others v. Bhargavi Constructions2 . In that case, the suit was filed for a declaration that paragraph 18 of the compromise recorded in the suit by the Lok Adalat insofar as it related to a certain

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piece of land was concerned as nonest in law for having been obtained by fraud and collusion. Defendant Nos.31 and 32 in the said suit filed I.A. No.894 of 2010 for rejection of the plaint. The civil court has accordingly rejected the plaint on the ground that in view of the judgment in Batchu Subba Lakshmi (1 supra) a suit for declaration to set aside the Lok Adalat Award by a party to the earlier suit is not maintainable. After a detailed discussion, the Division Bench held as follows:

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“The award passed by the Lok Adalat in a pending litigation, or in a prelitigation case, is not, ordinarily, amenable to judicial review. But when an award of the Lok Adalat is obtained by misrepresentation, fraud or without due compliance with the provisions of the Act and that it was not preceded by a compromise/settlement, it can be challenged in a Writ Petition [Sri Durga Malleswari Educational Society v. District Legal Services Authority (Lok Adalat), Vijayawada : 2012 (3) ALT 211 (DB)]. The challenge to the award of the Lok Adalat, in proceeding under Article 226 of the Constitution of India, can be entertained only at the behest of parties to the settlement/ compromise before the Lok Adalat, and not by anyone else [Sanjay Kumar v. Secretary, City Civil Court Legal Services Authority, Hyderabad : 2010 (3) ALT 289 (DB)]. The parties to the compromise or settlement, which is the basis for the award of a Lok Adalat, are entitled to challenge the award. Ordinarily, a third party cannot challenge the award in a writ petition, even if such an award causes prejudice. The remedy of such party would be to institute a separate suit

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within the period of limitation prescribed under law for necessary redressal, and seek an appropriate decree. As a Civil Court can even declare that an earlier decree of the Court is not binding on the party before it, there can be no objection for a third party to institute a suit in a Civil Court seeking a declaration that the award of Lok Adalat is not binding on him. There may, however, be extraordinary cases where a third party is meted with injustice at the behest of two or more conniving and colluding parties who may have obtained an award of the Lok Adalat by fraud or misrepresentation only to defeat the rights of a third party. In such cases, such a third party may maintain a Writ Petition. In such cases, there should be prima facie evidence of fraud or misrepresentation or collusion in obtaining the award of the Lok Adalat. Even if such allegations are made, and the question involves complicated questions of fact requiring voluminous evidence, the third party should be left to seek the remedy in a Civil Court, rather than invoking the extraordinary jurisdiction of the High Court under Article 226 of Constitution [Batchu Subba Lakshmi (1 supra)]".

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Under the circumstances, I am of the opinion that this petition needs to be dismissed with liberty to the petitioners to approach the jurisdictional civil Court seeking appropriate relief. At this juncture, learned counsel for the petitioners has brought to the notice of this Court that

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petitioner no.1 herein has already filed O.S.No.795 of 2022 before the jurisdictional civil Court at Channarayaptna seeking the relief of declaration and permanent injunction in respect of the suit schedule property against respondent nos.1 and 2 herein. If that is so, it is for the petitioners to prosecute the said suit. Since the petitioners have already availed the efficacious remedy, I am of the opinion that this writ petition needs to be dismissed.

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14. Accordingly. the writ petition is dismissed.

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The jurisdictional court before which O.S.No.795 of 2022 filed by petitioner no.1 herein against the respondents is pending shall dispose of the said suit as expeditiously as possible.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 14

Smt Jayarangamma v. Smt Rathnamma

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Smt Jayarangamma v. Smt Rathnamma

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