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Karnataka High Court · body

2008 DIGILAW 207 (KAR)

M. Krishnamurthy v. Krishnamurthy

2008-03-28

A.N.VENUGOPALA GOWDA

body2008
ORDER Heard the learned Counsel appearing for the parties and perused the record. 2. Petitioner had filed IA No.8 in O.S. No. 5614/1999, to implead him as additional defendant therein, claiming that he is co-owner of the properties involved in the said suit. Respondent No. 13 herein, had filed the said suit against respondent Nos.1 to 12, for a decree of declaration. permanent injunction and other reliefs. The said suit had been contested by some of the defendants therein. There was litigation between the parties, details of which is not required to be noticed, keeping in view the point that arise herein, for decision making. 3. Petitioner had filed IA No.8 in the said suit on 8.7.2005. Plaintiff in the suit had taken time to file objections to IA No.8 and the suit was adjourned to 1.8.2005. IA No.8 was not considered and no order was passed therein till 16.09.2005. The suit was set down for framing of issues by 19.12.2005. On 26.11.2005, plaintiff in the suit had filed an application for advancement of the suit from 19.12.2005 to 27.11.2005. Copy of said application was not served on the Advocate appearing for the petitioner herein, despite the pendency of IA No.8 for consideration. The trial Court has allowed the application for advancement filed by the plaintiff and without hearing the parties, has sent the suit record, to Lok Adalat which was held on 27.11.2005, wherein a compromise petition dated 27.11.2005 was was accepted and it has ordered to draw a decree in terms of the compromise petition. In pursuance of the order dated 27.11.2005, a decree has been drawn in terms of the compromise petition filed before the Lok Adalat. Questioning the order and decree dated 27.11.2005 of the trial Court and the Lok Adalat, this writ petition has been filed. 4. Respondent No. 13 has filed statement of objections and additional statement of objections, resisting the relief prayed in the writ petition. 5. Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for the petitioner contended that, the learned judge of the trial Court could not have preponed the suit without the application for preponment being served on the petitioner who had filed IA No.8 nor could have referred the suit for settlement before the Lok Adalat, without hearing and the consent of the parties. Learned Senior Counsel contended that, the proceedings of the trial Court dated 25.11.2005 resulting in the compromise decree dated 27.11.2005 passed by the Lok Adalat is totally illegal and in in violation of the provisions contained in Sections 19 and 20 of the Legal Services Authority Act, 1987 (‘Act’ for short). Learned Senior Counsel contended that, the award made by the Lok Adalat or the decree drawn dated 27. 11.2005 as contrary to the provisions of the Act. 6. Sri M. Ram Bhat, learned Senior Counsel, appearing for Sri Siddamallappa and other learned Counsel appearing for the respondents contended that, the petitioner herein was not a party to the suit and his application for impleadment having not been allowed, is not an aggrieved person and has no locus standi to file writ petition against the proceedings of the trial Court and the Lok Adalat. They further contended that the petitioner has filed a separate suit, in view of which, it is not permissible for him to maintain the writ petition. Learned Counsel further contended that, it could be inferred by this Court, that, by the order dated 25.11.2005, advancement of the suit was allowed and from perusal of the order sheet of trial Court it could be seen, that there was a prayer for reference to the Lok Adalat, in view of which, the suit record was sent to the Lok Adalat for settlement and therefore there is no illegality committed by the trial Court or in the matter of decree ordered to be drawn by the Lok Adalat and the decree drawn thereafter. 7. Considering the rival contentions, the record of the writ petition, the record of O.S.No. 5614/1999 of the trial Court, which was secured at the time of hearing of this writ petition, the points that arise for my consideration are : 1) Whether petitioner has the locus standi to file writ petition? 2) Whether the Lok Adalat has the jurisdiction to take up a matter pending in the Court, without a reference being made by the Court to it? 3) Whether the Lok Adalat has exceeded in its jurisdiction? 4) Whether the impugned proceedings/decree are sustainable? 8. 2) Whether the Lok Adalat has the jurisdiction to take up a matter pending in the Court, without a reference being made by the Court to it? 3) Whether the Lok Adalat has exceeded in its jurisdiction? 4) Whether the impugned proceedings/decree are sustainable? 8. In order to appreciate the contentions canvassed by the learned Counsel appearing for the parties to the lis and to arrive at a finding on the points framed for consideration, it is necessary to notice the provisions of sub-Section (5) of Section 19 and Section 20 of the Act. Sub-Section (5) of Section 19 of the Act reads thus : “(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 organized.” Sub-Section (1) of Section 20 of the Act provides, that a case referred to under Clause (ii) 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 face case and there are chances of settlement, can refer the matter to the Lok Adalat. The said provision also indicates that before making the reference, on an application filed by any one of the parties, the Court shall give an opportunity of hearing to the parties concerned. Now I will take up the above points for consideration. Regarding Pont No 1: 9. There is no dispute that petitioner had filed IA No.8 in the suit to implead him as an additional defendant. The said application was pending and had been adjourned along with the suit to 19.12.2005. Plaintiff without serving the copy of application filed, seeking preponment of the case to 27.11.2005 on the applicant in IA 8, the suit was preponed. Preponement of the suit was not notified either to the applicant in IA No. 8 or to his Advocate. The said application was pending and had been adjourned along with the suit to 19.12.2005. Plaintiff without serving the copy of application filed, seeking preponment of the case to 27.11.2005 on the applicant in IA 8, the suit was preponed. Preponement of the suit was not notified either to the applicant in IA No. 8 or to his Advocate. By considering Rule 19 of the Karnataka Civil Rules of Practice, it is apparent that the advocates appearing for the parties should be notified of the proceedings of the adjournment / preponement of the suit. Since notice of preponment was not given to the petitioner or to his Advocate, the trial Court has erred in ordering preponement of the suit from 19.12.2005 to 27.11.2005. In fact, without even securing the record of the suit, order has been made on the very application itself, which has later sent to the office of the trial Court, which has been recorded by the office, in the order sheet on 26.11.2005. Thus, it is apparent that, the applicant in IA 8, was not made known of the preponement of the case much less the suit being referred to the Lok Adalat. Since the petitioner had filed IA No.8 for impleading in the suit and since his said application has not been disposed of, in my view, considering the provision under Rule 19 of the Civil Rules of Practice, notice of preponment of the suit should have been given to the applicant in IA No.8 or to his Advocate on record thereof. The order dated 25.11.2005 has been passed without notice to the petitioner, denying the opportunity of hearing, which is illegal. The trial Court has committed illegality, apparent on the face of the record. Hence the petitioner has the locus-standi to file this petition. Regarding Point No.2. 10. From the perusal of the order sheet of the trial Court, it is clear that the suit, which was posted on 16.09.2005, after passing orders on IA 6 and 7, was adjourned to 19.12.2005, to frame the issues. Plaintiff in the suit has moved an application in the open Court on 25.11.2005 for advancement of the suit to 27.11.2005. Without the record of the suit being secured from the office and perusing the same, learned trial Judge has made the endorsement / order, on the application itself, to list the suit on 27.11.2005. Plaintiff in the suit has moved an application in the open Court on 25.11.2005 for advancement of the suit to 27.11.2005. Without the record of the suit being secured from the office and perusing the same, learned trial Judge has made the endorsement / order, on the application itself, to list the suit on 27.11.2005. The office note in the order sheet made on 26.11.2005 shows, the application for advancement, as one filed, to consider reference of the matter to Lok Adalat. No order has been passed either on 25.11.2005 or later on, to refer the matter to Lok Adalat for effecting compromise or settlement between the parties. A perusal of the order made on the application for proponment or noting of the office of the trial Court dated 26.11.2005. does not show that any of the parties to the suit were heard on the question of making the reference nor any order having been passed, referring the suit to the Lok Adalath under Section 20 of the Act, being subject to a rider as contained in the proviso. Without a reference being made by the Court in the manner contemplated under Section 20 of the Act, the Lok Adalat does not get the jurisdiction to take up the pending matter in Court. Since reference was not made by the Court, there was no jurisdiction for the Lok Adalat to take up the suit for effecting the compromise and settlement. 11. In the case of The Commissioner, Karnataka State Public Instruction (Education) Bangalore and Others Vs. Nirupadi Virbhadrappa Shiva Simpi, reported in 2001(4) KCCR 2587, considering an identical situation wherein reference had been made to the Lok Adalath without following the provision contained under Section 20 of the Act, it has been held as follows : “ The order in the case does not bear out that the parties were subsequently heard on the question of reference, except noting their presence. The Power to refer the case to Lok Adalat vested in the Civil Court under Section 20 of the Act being subject to the rider as contained in the proviso, any reference either under sub-clause (b) of clause (i) or clause (ii) will be invalid if the parties are not heard in the matter. The Power to refer the case to Lok Adalat vested in the Civil Court under Section 20 of the Act being subject to the rider as contained in the proviso, any reference either under sub-clause (b) of clause (i) or clause (ii) will be invalid if the parties are not heard in the matter. When the reference made is not valid in the eye of law, the Lok Adalat would not derive jurisdiction to determine any dispute and the Lok Adalat cannot take cognisance of the case under sub-clause (3) of Section 20. 9. The Civil Court has given a short shrift to Section 20 of the Act and has referred the matter to the Lok Adalat without the consent of the defendants for such reference. The Civil Court even if prima facie is satisfied under sub-caluse (b) of clause (i) that there are chances of settlement, still it is barred from acting thereunder if the proviso to Section 20 is not complied with by giving a reasonable opportunity. Compliance with the proviso to Section 20 is condition precedent for reference by the Civil Court. In this case, the Civil Court having referred this matter without complying with the proviso to Section 20 is bad in law.” (underlining is by me for emphasis) Point No. II is answered accordingly. Regarding Point No. III : 12. Order dated 27.11.2005 passed by the Lok Adalat reads as follows : “Memo filed by the plaintiff is allowed to delete defendants 2 to 6, 8 to 13. Compromise petition under Order 23 Rule 3 filed. Both plaintiff, Defendants 1 and 7 present admitted the Memorandum of compromise petition. Plaintiff has also admitted the compromise petition and has affixed his LTM on the compromise petition. Draw the compromise decree in terms of compromise petition.” In pursuance of the said proceedings, the decree in the suit has been drawn by the trial Court. As is apparent from the order, Lok Adalat has allowed the deletion of defendants 2 to 6 and 8 to 13. Draw the compromise decree in terms of compromise petition.” In pursuance of the said proceedings, the decree in the suit has been drawn by the trial Court. As is apparent from the order, Lok Adalat has allowed the deletion of defendants 2 to 6 and 8 to 13. Sub-rule (2) of Rule 10 of Order 1 of CPC, enables the Court at any stage of the proceedings, either upon or without application of either parties, and on such terms as may appear to the Court to be just, order the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Jurisdiction of striking out or adding parties is the prerogative of the Court. Lok Adalath has not been conferred with the said jurisdiction. Lok Adalat in allowing the deletion of Defendants 2 to 6 and 8 to 13 has exercised the jurisdiction not vested in it. Hon’ble Supreme Court in the case of STATE OF PUNJAB AND ANOTHER VS. JALOUR SINGH AND OTHERS reported in JT 2008 (2) SC 83, after examining the provisions of the Act has held that, the Lok Adalath has no adjudicatory or judicial function nor power to hear the parties as a Court of law and its function is purely of conciliation. In the said decision it has been held as follows: “ It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the Court from which the reference was received, for disposal in accordance with law. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the Court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to “hear” parties to adjudicate cases as a Court does.” (Underlining by me for emphasis) The order of the Lok Adalat in this case (extracted above) shows that it has assumed a judicial power in ordering deletion of the parties and also ordering the drawing up of a decree in terms of the compromise petition. The said order is contrary to law, beyond the power and jurisdiction of the Lok Adalat and it is void in the eye of law. Point No. 3 is accordingly answered. Regarding Point No. 4 : 13. Learned Senior Counsel appearing for the respondents contended that, the decree passed by the Lok Adalat is a consent decree arrived at between the plaintiff and defendants 1 and 7 and hence is not liable to be interfered with. I do not find any merit in the contention. As could be seen from the record of the trial Court, the entire proceedings from 25.11.2005 till 27.11.2005 resulting in a decree being passed, are vitiated, being contrary to the provisions contained in Sections 19 and 20 of the Act. As the case was not referred to the Lok Adalat by the Civil Court, in the manner provided under law, since the Lok Adalat had taken up the suit for consideration, has passed the order deleting some of the defendants in the suit, by exercising a power not vested in it, it has to be held that, the impugned proceedings cannot be sustained. Considering a similar situation, this Court in the case of the COMMISSIONER (supra) has held as follows : “14. It would then take me to the next question as to what should happen to such an order and whether this Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India can interfere in the matter to put at rest the impugned order in the face of sub-Section (2) of Section 21 of the Act which bars any appeal to any Court against the award. The said sub-Section reads: “ 21 (2). The said sub-Section reads: “ 21 (2). Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute and appeal shall lie to any Court against the award.” 15. The power of judicial review in a given case is implicit under the Constitution unless expressly excluded by a provision of the Constitution. This power is available to correct any order passed by a statutory authority which is violative of any of the provisions of the statute. The Lok Adalat is a creation of statute and gets jurisdiction from it and hence this Court is competent to go into an order passed by it, to decide whether the order in question is valid in law. The writ jurisdiction of the High Court cannot be circumscribed by provisions of any enactment as is to be found in Section 21 of the Act and it can always exercise its jurisdiction if an order, left alone, would amount to abrogating the Rule of law. In Election Commission of India Vs.. Union of India and Others, 1995 Sup (3) SCC 643, the Apex Court while dealing with the powers of the Court under the Constitution to interfere with an order passed by the Election Commission, laid down : “There are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the Courts” The enunciation by the Apex Court making even an order by a constitutional authority reviewable should leave no doubt in any one’s mind that a discretion exercised by a statutory authority would be well within the reviewable discretion of this Court. In the present case, an extra-ordinary situation has arisen in which an order is passed without jurisdiction and no statutory remedy is available to the State which is the affected party. The relief granted by the Lok Adalat to the plaintiff being one without jurisdiction is, therefore, a nullity. In the present case, an extra-ordinary situation has arisen in which an order is passed without jurisdiction and no statutory remedy is available to the State which is the affected party. The relief granted by the Lok Adalat to the plaintiff being one without jurisdiction is, therefore, a nullity. Its continuance would lead to public injury, in that, if really the plaintiff does not belong, to the caste to which he claimed to belong, the right that has accrued to him by virtue of the order impugned would enable him to compete for and get a job which was exclusively reserved for a certain caste, thus depriving the same to a person really hailing from the caste. In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 a defence was taken that the judgment passed by the High Court cannot be questioned before the Apex Court as it had become final. Dealing with the said defence, the Apex Court held : “The contention that the judgment passed by the High Court cannot be questioned in these proceedings as it had become final is wholly devoid of substance. The appellant had questioned the legality of the sanction on many grounds one of which was the sanctioning authority did not apply its own mind and acted at the behest of the High Court which issued a mandamus to sanction the prosecution. Since the correctness and validity of the sanction was assailed before the Supreme Court, the High Court judgment has necessarily to be considered and its impact on the sanction. The so-called finality cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the High Court in directing the sanction to be granted. Besides being erroneous, was harmful to the interest of the appellant, who had a valuable right of fair trial at every stage, from the stage it began till the conclusion of the proceedings.” It is apparent and it is a matter of record that the Government is not willing to accede to the claim of the respondent that he belongs to Simpi Caste. In such a situation, it is always desirable that the petitioner-State should be provided with an opportunity to defend its cause. In such a situation, it is always desirable that the petitioner-State should be provided with an opportunity to defend its cause. If the State is prevented from doing so, under the guise of finality, it would lead to public injury and denial of a fair trial to the State. It is essential that in the interest of justice such public injury must be prevented, where necessary, by interference under Article 226 of the Constitution. 16. Adverting to the scope of judicial review and its limits their Lordships in Mansukhlal, supra, observed : “The duty of the Court is to confine itself to the question of legality. Its concern should be (i) whether the decision-making authority exceeded its powers? (ii) committed an error of law; (iii) committed a breach of the rules of natural justice; (iv) reached a decision which no reasonable Tribunal would have reached; or (v) abused its powers”. In the case on hand the Lok Adalat exceeded its powers, committed an error of law, committed breach of the rules of natural justice and abused its powers. Even if this Court were to strictly confine itself to the question of legality, the impugned order cannot still be tolerated as it suffers from all the foibles that justify interference under Article 226 of the Constitution. 17. The question whether this Court would have jurisdiction to issue writs under Article 226 of the Constitution even in matters where the statute specifically excludes the jurisdiction of ‘Court’ is also no longer resintegra. In Union Vs.. Narasimhalu, (1970) 2 SCR 145 the Apex Court had occasion to deal with the question whether the jurisdiction of High Court is also excluded where by clear implication of the statute the jurisdiction of the High Court is also excluded where by clear implication of the statute the jurisdiction of the Civil Court is excluded. The Apex Court after considerable discussion on the issue, observed. “But the exclusion of the jurisdiction of the Civil Court to entertain a suit does not excluded the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi-judicial tribunals. The Apex Court after considerable discussion on the issue, observed. “But the exclusion of the jurisdiction of the Civil Court to entertain a suit does not excluded the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi-judicial tribunals. The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the Civil Court or by clear implication does not affect the jurisdiction of the High Court to issue high prerogative writs.” The broader concept of justice would always demand adherence to the fundamental principles of judicial procedure. Strict compliance with the provisions of the statute concerned and refraining from exercising the powers not vested in it would have ensured such adherence by the Lok Adalat. In the case on hand the order having been passed in violation of the fundamental principles of judicial procedure and in addition, the order passed being not within the competence of the Lok Adalat, the dicta in Union Vs.. Narasimhalu, supra, would apply to the facts of this case on all fours. In fact, the impugned order craves for the interference of this Court under Article 226 of the Constitution.” Hence the argument has no merit. 14. In view of my finding on points 1 to 4, the impugned orders and the consequential decree are liable to be quashed. In the result, writ petition succeeds and the same is hereby allowed. Rule is issued and made absolute. Impugned order dated 25.11.2005 and the consequential decree are hereby quashed. O.S.No.5614/1999 shall be taken up by the trial Court from the stage at which it stood as on 16.09.2005 and it shall proceed further in the matter. Both the parties are at liberty to raise their respective contentions in the suit. In the circumstances, I direct both the parties to bear their respective costs. Registry is directed to return the record of the suit to the trial Court forthwith.