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2008 DIGILAW 333 (KER)

M. v. Bose VS M. O. Gervasis

2008-06-16

M.SASIDHARAN NAMBIAR

body2008
Judgment : Petitioner is the first defendant in O.S.No.1864/2004, on the file of Munsiff Court, Ernakulam. First respondent is the plaintiff and other respondents, other defendants in the suit. The suit was filed seeking a decree directing defendants to effect sale of the plaint schedule property by executing a sale deed, for a declaration of title perfected by adverse possession and also for permanent injunction. Admittedly, after issues were settled, suit was included in the special list on 6.12.2007. Evidence was partly recorded. While so, finding that there is a chance of settlement, on 18.1.2008, the suit was referred to Permanent Lok Adalath. The case was pending before the Adalath since then. It is represented that even though the case was referred to Adalath, the suit was being posted by the learned Munsiff in the court also to find out whether a settlement is arrived at or not. On 29.3.2008, finding that the matter has not been settled in the Adalath, the trial court passed an order directing the Adalath to sent back the records, so as to proceed with the file. The said order is challenged in this writ petition filed under Article 227 of the Constitution of India. 2. The learned counsel appearing for the petitioner and the first respondent were heard. The report called for from the trial court was perused. 3. Both the learned counsel for the petitioner and first respondent submitted that on 1.2.2008, there was a posting before the Permanent Lok Adalath, and Adalath had arrived at a settlement and directed the parties to measure the property having an extent of 32 cents and to prepare a plan. It is submitted that the settlement was to measure the property within 30 days. It is before the expiry of that said period, the case was called for by the learned Munsiff on 29.3.2008, as it was felt that the matter will not be settled. As pointed out by the learned counsel appearing for the petitioner, on the face of it, there is procedural irregularity committed by the learned Munsiff. The Munsiff has ignored the provisions of Legal Service Authorities Act, 1987 (herein after referred to as 'the Act'). 4. Section 20 of the Act deals with Cognizance of cases by Lok Adalats. As pointed out by the learned counsel appearing for the petitioner, on the face of it, there is procedural irregularity committed by the learned Munsiff. The Munsiff has ignored the provisions of Legal Service Authorities Act, 1987 (herein after referred to as 'the Act'). 4. Section 20 of the Act deals with Cognizance of cases by Lok Adalats. Under Subsection (1) where in any case referred to in clause (i) of sub-section (5) of section 19, parties thereof agree or one of the parties thereof makes an application to the court, 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 the court is satisfied that the matter is an appropriate one to the taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat. Under Sub-section (3), where any case is referred to the Lok Adalath under sub-section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Under sub-section (5), where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (2), and that Lok Adalat shall advice the parties to seek remedy in a court. Sub-section (7) provides that where the record of the case is returned under sub-section (5) to the court, such court shall proceed to deal with such case from the stage which had reached before such reference under sub-section (1) was made. Section 21 of the Act makes it abundantly clear that every award of the Lok Adalath shall be deemed to be a decree of the 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), the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act. 5. 5. Therefore, as provided under sub-section (1) of Section 20 of the Act, once the suit is referred to the Lok Adalat, finding that there is chance of settlement, or that the court is satisfied that cognizance is to be taken by the Lok Adalat, Civil Court ceases to have any jurisdiction thereafter, till the records are returned to it by the Lok Adalat, as provided under sub-section (5). Till then, the case has to be exclusively decided by the Lok Adalat. The report submitted by the Munsiff as well as the submissions made by the learned counsel on both sides establish that this principle was violated by the Munsiff. When the case was referred to Lok Adalat on 18.1.2008, Munsiff did not have any jurisdiction to deal with the suit thereafter. Munsiff could not have dealt with that case till an order is passed by the Adalat, as provided under sub section (5) and records are received by the court , as provided under sub-section (7). Once the case is referred to the Adalat, Munsiff is not competent to call for the records from the Adalat, either suo motu or on an application by the party. If it is found that the matter cannot be settled between the parties, remedy of the parties is to request the Adalat to return it to the court or if the Adalat is satisfied that settlement could not be arrived at in the Adalat, recording that fact, return back the records to the trial court as provided under subsection (5). It is only on receipt of records, as provided under sub-section (7), Munsiff is competent to deal with the suit thereafter. In such circumstances, the order passed by the Munsiff to call back the records to the Civil Court is unsustainable. Munsiff is directed to send back the records to the Adalat. If the Adalat finds that settlement cannot be arrived at, Adalat is competent to return the records, as provided under sub-section 5 of Section 20 of the Act. If any of the parties find that there is no chance of settling the dispute before the Adalat, because of the conduct of any of the parties, that party is competent to represent to the Adalat to return the file back to the Civil Court. Writ petition is disposed accordingly.