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2001 DIGILAW 710 (KAR)

BASAPPA v. SHOBHA

2001-09-13

H.L.DATTU

body2001
H. L. DATTU, J. ( 1 ) THE issues involved in these writ petitions lie in a very narrow compass. Therefore, though the matters are listed for preliminary hearing in b Group, by consent of the learned Counsel appearing for the parties to the lis, they are taken up for final hearing. ( 2 ) RULE nisi. ( 3 ) HEARD the learned Counsel appearing for the parties to the lis. ( 4 ) IN my order, I would be referring to the status of the parties in these writ petitions as stated before the Trial Judge. ( 5 ) FIRST petitioner is one Sri Basappa, son of Sri Shiddappa Chinagundi. Second petitioner is one Sri Siddappa, father of the first petitioner. They are the defendants in the original suit filed by first respondent herein who is the wife of Sri Basappa. Second respondent smt. Roopa is the daughter of Sri Basappa. ( 6 ) WIFE had filed a suit under the provisions of the Hindu Marriages act, for a decree of maintenance. The same was registered as O. S. No. 118 of 1997 before the Civil Judge, Junior Division, Jamkhandi. The maintenance amount claimed in that suit was Rs. 800/- per month. ( 7 ) WIFE also had filed a criminal miscellaneous petition in No. Cri. Misc. No. 50 of 1996 under the provisions of Section 125 of the Code of criminal Procedure for grant of maintenance. ( 8 ) AFTER service of the suit summons and the criminal miscellaneous proceedings, the defendants herein had entered appearance. The matters had been adjourned by the learned Trial Judges once or twice. Thereafter, on 23-11-1999, the learned Trial Judge, in O. S. No. 118 of 1997 refers the matter to the Lok Adalat for conciliation and settlement and members of the Lok Adalat proceed to dispose off the matter under the provisions of the Legal Services Authorities Act, 1987 (with Rules 1996 and Regulations 1997) ('the Act' for short ). ( 9 ) LEARNED Counsel appearing for the defendants/petitioners at the conclusion of the proceeding puts his signature on the order sheet maintained by the Court with a note that his party is not agreeable for such settlement. The award that is passed by the members of the Lok Adalat dated 23-11-1999 is the subject-matter of W. P. No. 764 of 2000. The award that is passed by the members of the Lok Adalat dated 23-11-1999 is the subject-matter of W. P. No. 764 of 2000. ( 10 ) BY an order dated 5-11-1999, the First Additional Judicial Magistrate first Class, Jamkhandi, also refers the matter, Cri. Misc. No. 50 of 1996, for disposal before the Lok Adalat. Therein the members of Lok adalat pass an order awarding a sum of Rs. 250/- as maintenance per month to each of the petitioners before them payable with effect from 1-1-1998. They also observe that the arrears of maintenance shall be paid by the respondents within three months from the date of the order. It is the correctness or otherwise of the order made by the Chairman, taluka Legal Services Authority and Principal Civil Judge (Senior Division), jamkhandi, and the Members of the Lok Adalat in Cri. Misc. No. 50 of 1996, dated 5-11-1999, is the subject-matter of W. P. No. 1643 of 2000. ( 11 ) RESPONDENTS have not filed their statement of objections, either resisting the reliefs requested in these petitions nor they dispute the factual assertions made. ( 12 ) SRI Basavaraj Kareddy, learned Counsel appearing for the petitioners, firstly contends that the learned Judges of the Trial Court could not have referred the matter for settlement before the Lok Adalat without the consent of the parties. Further the learned Counsel would submit that in O. S. No. 118 of 1997, the learned Counsel appearing for the petitioners herein had stated categorically before the learned Trial judge that his client is not prepared and agreeable for such settlement. Therefore, the learned Counsel would submit that the members of the lok Adalat could not have passed the impugned order dated 23-11-1999 awarding a maintenance of Rs. 600/- per month to the plaintiffs 1 and 2 before them. ( 13 ) LEARNED Counsel also submits that even the learned Magistrate has committed the same mistake. According to him, learned Counsel appearing for the petitioners had not agreed for settlement of the case by the Lok Adalat. Therefore, it is stated that the awards made by the lok Adalat dated 23-11-1999 and 5-11-1999 are contrary to the provisions of the Act and the Rules framed thereunder. According to him, learned Counsel appearing for the petitioners had not agreed for settlement of the case by the Lok Adalat. Therefore, it is stated that the awards made by the lok Adalat dated 23-11-1999 and 5-11-1999 are contrary to the provisions of the Act and the Rules framed thereunder. ( 14 ) SRI Naragund, learned Counsel appearing for the respondentswife and daughter, states that the learned Judges of the Trial Court could not have referred the matter unless the parties had agreed for such reference to the Lok Adalat. The learned Counsel further states that the same has to be inferred by this Court because the parties were present when the matter was referred by the learned Judges for settlement before the Lok Adalat. Therefore, according to the learned Counsel, there is no illegality in the orders made by the learned Judges in o. S. No. 118 of 1997 and Cri. Misc. No. 50 of 1996. ( 15 ) IN order to appreciate the contention canvassed by the learned Counsel appearing for the parties to the Iis, let me notice the provisions of sub-section (5) of Section 19, Sections 20 and 21 of the Legal Services Authorities Act of 1987. Sub-section (5) of Section 19 of the Act provides for jurisdiction of a Lok Adalat. The said provision reads as under:" (5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of and is not brought before, any Court for which the Lok Adalat is organised". Proviso appended to sub-section (5) of Section 19 of the Act says that the lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. ( 16 ) SECTION 20 of the Act provides for cognisance of cases by Lok Adalat. Proviso appended to sub-section (5) of Section 19 of the Act says that the lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. ( 16 ) SECTION 20 of the Act provides for cognisance of cases by Lok Adalat. Sub-section (1) of Section 20 of the Act envisages that a case referred to under clause (i) of sub-section (5) of Section 19 of the Act, if the parties thereof agree or if any one of the parties thereof makes an application to the Court for referring the case to the Lok Adalat for settlement and then, if the Court is satisfied that there is a prima facie case and there are chances of settlement, would refer the matter to the lok Adalat. The sub-section also indicates that before making such reference on an application filed by any one of the parties, the Court shall give an opportunity of hearing to the parties concerned. ( 17 ) THEN we come to the provisions of Section 21 of the Act. It provides for framing an award by Lok Adalat. It says the award made by the Lok Adalat shall be deemed to be a decree of a Civil Court. Sub-section (2) of Section 21 of the Act envisages that the award made by the lok Adalat shall be final and binding on the parties to the dispute and no appeal shall lie to any Court against that award. ( 18 ) BEFORE I proceed further, let me notice that whether a writ petition would lie against the award made by the Lok Adalat is a broader issue which I do not intend to consider in these writ petitions. Without going into that question, keeping in view the observations made in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna jayanti Mahotsav Smarak Trust and Others v V. R. Rudani and others, I have exercised my extraordinary jurisdiction in disposing these matters. In the said decision, the Court was pleased to observe. "17. Article 226 reads: "226. Power of High Courts to issue certain writs. In the said decision, the Court was pleased to observe. "17. Article 226 reads: "226. Power of High Courts to issue certain writs. (1) notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari) or any of them for the enforcement of any of the rights conferred by part III and for any other purpose. XXX XXX XXX XXXX 21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract". (Judicial Review of Administrative act, 4th Edition, page 540 ). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition". ( 19 ) HAVING seen the relevant provisions of the Act, let me peep into the order made by the learned Trial Judge in O. S. No. 118 of 1997, dated 23-11-1999, while referring the matter to the Lok Adalat for settlement. The reference order made by the Trial Judge is as under:"this case is referred to Lok Adalat for conciliation and disposal by the Principal Civil Judge (Division) and Judicial magistrate First Class, Jamkhandi. Hence, proceeded for disposal under the Legal Services Authorities Act, 1987 (with Rules 1996 and Regulations 1997) in general and Sections 20 and 21 in particular". ( 20 ) THE suit was posted before the Court for further orders. Hence, proceeded for disposal under the Legal Services Authorities Act, 1987 (with Rules 1996 and Regulations 1997) in general and Sections 20 and 21 in particular". ( 20 ) THE suit was posted before the Court for further orders. None of the parties had filed any application before the Court for referring the matter for settlement before the Lok Adalat. There is also no indication in the order sheet that the learned Counsels representing the parties had made any request before the learned Judge for referring the matter to the Lok Adalat. If such a request had been made, the learned Trial judge ought to have made a note in the order sheet. A perusal of the order sheet gives an impression that the learned Judge had taken the responsibility of getting the matter settled by the parties without there being any request by either of the parties or their learned Counsels. In view of this factual position, in my opinion, the learned Trial Judge could not have referred the matter to the Lok Adalat unless the parties to the lis thereof agree for such reference. If a request is made by both the parties, then the Trial Judge should have noticed the same in his order. In the absence of such note by the Trial Judge in his order, it cannot be presumed and assumed that the parties had agreed to for such reference of the matter for settlement before the Lok Adalat. This is the initial defect in the order made by the learned Trial Judge dated 23-11-1999. ( 21 ) THE members of Lok Adalat, after hearing the parties to the lis, have proceeded to pass an order awarding a maintenance of Rs. 600a per month to the plaintiffs 1 and 2 before them. The learned Counsel appearing for the respondents while signing his presence before the Lok adalat states that his client is not agreeable for such settlement. As I have already stated, the provisions of the Act can be applied only when both the parties agree and in such cases only an award can be made. ( 22 ) IN the instant case, the respondent before the Trial Court and the members of the Lok Adalat categorically states that he is not ready and willing to agree for a settlement. ( 22 ) IN the instant case, the respondent before the Trial Court and the members of the Lok Adalat categorically states that he is not ready and willing to agree for a settlement. In view of that, in my opinion, the learned Trial Judge and the members of the Lok Adalat committed a grave error in passing an award in favour of the plaintiffs before them. In that view of the matter, the award made by the learned Trial Judge in O. S. No. 118 of 1997, dated 23-11-1999 cannot be sustained by this court. ( 23 ) INSOFAR as the award made by the learned Judicial Magistrate first Class and the members of the Lok Adalat in Cri. Misc. No. 50 of 1996, dated 5-11-1999 is concerned, the initial defect that I have pointed out in the award passed by the learned Trial Judge and members of the lok Adalat in the earlier paragraph of the order also finds a place. Here also there is no indication or a note made by the learned Trial Judge in the order sheet that the parties had agreed for referring the matter for settlement before the Lok Adalat. In the absence of such indication, in my opinion, the learned J. M. F. C. could not have referred the matter to the Lok Adalat for settlement. Therefore, even the subsequent order made by members of Lok Adalat in awarding maintenance of Rs. 250/- per month to the petitioners in Cri. Misc. No. 50 of 1996, cannot be sustained by this Court. ( 24 ) IN the result, petitions are allowed. Rule made absolute. The impugned award passed by the Lok Adalat in O. S. No. 118 of 1997, dated 23-11-1999 and the award passed in Cri. Misc. No. 50 of 1996, dated 5-10-1999 are set aside. A direction is issued to the learned Trial judge, Jamkhandi, and to the First Additional Judicial Magistrate First class, Jamkhandi, to restore O. S. No. 118 of 1997 as well as Cri. Misc. No. 50 of 1996 respectively on their files and decide the cases on merits as expeditiously as possible. All the other contentions of both the parties are left open. Ordered accordingly. --- *** --- .