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2012 DIGILAW 996 (KER)

Mary Varghese v. Gijo George Varghese

2012-11-12

S.S.SATHEESACHANDRAN

body2012
Judgment :- S.S. Satheesachandran, J. 1. Ext.P5 award passed in Lok Adalat organised by the Idukki District Legal Services Authority, is challenged in the above petition under Article 227 of the Constitution of India. 2. Two proceedings under the Protection of Women from Domestic Violence Act. 2005 {for short ‘PWDV Act’}, pending on the file of the Chief Judicial Magistrate, Thodupuzha were referred to the Lok Adalat, and on such reference Ext.P5 award was passed. One of the aforesaid proceedings was at the instance of the 1st petitioner-mother-as against her son and daughter-in-law imputing domestic violence and seeking various reliefs under the PWDV Act. Other proceeding was at the instance of the daughter-in-law, 2nd respondent, against the mother-in-law and sister-in-law (2nd petitioner). When the above two petitions came up for recording evidence learned Chief Judicial Magistrate referred them to the Lok Adalat with the consent of parties. Ext.P5 award was passed by the Lok Adalat, which reads thus: “Both Sides present. Parties agreed to settle the matter on the following grounds: Petitioners agreed to cause to transfer 12.3/4 cents of property and the house in it in favour of the Gijo George and Mary Varghese with the right of the Mary Varghese to reside and take usufructs in it till her death. After the death of the Mary Varghese this entire property will devolve upon Gigo Varghese. Gigo Varghese undertakes to clear the outstanding loan on the property. The document will be executed on or before 10.11.2011. After the execution of the deed the cases will be withdrawn by the respective parties. Mary Varghese is having the right to reside with any of their children. Mary Varghese is permitted to cut and remove the two teak wood trees in it. Call 12.11.2011.” Dated this, the 8th day of October, 2011.” 3. Though direction to ‘call on 12.11.2011’ was made, there was cessation of proceedings before the Lok Adalat with the passing of the aforesaid award. Pursuant to such award, admittedly, petition filed by the mother, 1st petitioner, numbered as M.C.No.129 of 2010 was closed by the Chief Judicial Magistrate, but the other at the instance of the 2nd respondent daughter-in-law numbered as M.C.No.132 of 2010 is still retained. Pursuant to such award, admittedly, petition filed by the mother, 1st petitioner, numbered as M.C.No.129 of 2010 was closed by the Chief Judicial Magistrate, but the other at the instance of the 2nd respondent daughter-in-law numbered as M.C.No.132 of 2010 is still retained. That is so retained, according to the averments made in the counter affidavit filed by the 1st respondent (son), since there was non-compliance of the undertaking given in Ext.P5 award over the execution of registered document has not been complied with. 4. Domestic violence imputed by the rival parties against one another in the two proceedings has close nexus with disputes over 12.3/4 cents of property comprising a building. A settlement deed over such property had been, admittedly, executed in favour of another sister of the 1st respondent, and after availing a loan in her name from a bank, a building had been put up in that property. 1st respondent, son, has a case that there was a pre-existing agreement to give the property to him and the transfer in favour of one of his sisters was only to obtain a loan from the bank in her name to put up the building. 1st respondent, his wife, and the first petitioner (mother), all of them, are in occupation of that building. I find, for disposal of this original petition, wherein the challenge is against Ext.P5 award, rival claims set up by the parties over the property and the building, nor the case advanced by them against one another imputing domestic violence need not be examined, nor even referred to with the particulars thereof. Limited question emerging for consideration is whether any interference over Ext.P5 award passed by the Lok Adalat is called for. 5. Admittedly, after the passing of Ext.P5 award proceedings under the PWDV Act initiated by the mother against the son and daughter-in-law, numbered as M.C.No.129 of 2010,has been terminated. But the other proceeding numbered as M.C.No.132 of 2012 at the instance of daughter-in-law against the mother-in-law and sister-in-law (petitioner herein) is still retained on the file of the Chief Judicial Magistrate. That indicates that there was no cessation of the proceedings, both of them, after reference to the Lok Adalat and passing of the award. But the other proceeding numbered as M.C.No.132 of 2012 at the instance of daughter-in-law against the mother-in-law and sister-in-law (petitioner herein) is still retained on the file of the Chief Judicial Magistrate. That indicates that there was no cessation of the proceedings, both of them, after reference to the Lok Adalat and passing of the award. Learned counsel for the respondents urged before me that M.C.No132 of 2010 is retained since there was default in execution of registered document agreed upon, and recorded in the award; but that explanation for retention of the case file has no merit. 6. Looking into Ext.P5 award, the larger question is whether by such award, cessation of the two proceedings referred to the Lok Adalat had taken place or not. Sub-section (3) of Section 20 of the Legal Services Authorities Act, 1987 {for short “LSA Act”} commands that when a reference of a case is made to the Lok Adalat it shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. That sub-section reads thus: “20. Cognizance of cases by Lok Adalats: (1) XXX XXX XXX (2) XXX XXX XXX (3) Where any case is referred to a Lok Adalat 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. (4) XXX XXX XXX So in effect, when a settlement is effected in terms of compromise by the parties, it should be one capable of disposing the case referred to the Lok Adalat as such leading to cessation of proceedings of the case. Award passed by the Lok Adalat should cause termination/cessation of the case referred. Is there any disposal of the case on passing of Ext.P5 award where some conditions have been imposed in terms of the compromise arrived by the parties? A time limit has been fixed for execution of a registered document over the property, which, in fact, was the core of dispute between the parties. Further consideration of the matter, fixing a date after the date thereof, fixed for exection of the registered document agreed to by the parties, is reflected by Ext.P5 award. A time limit has been fixed for execution of a registered document over the property, which, in fact, was the core of dispute between the parties. Further consideration of the matter, fixing a date after the date thereof, fixed for exection of the registered document agreed to by the parties, is reflected by Ext.P5 award. Essential term covered by the agreement on the settlement arrived by parties i.e., execution of a registered document over the property, admittedly, has not been complied with till date. So much so, the 2nd respondent, the applicant in M.C.No.132 of 2010, which was also referred to the Lok Adalat with M.C.No129 of 2010 filed by the first applicant mother is still prosecuting her case before the magistrate ignoring Ext.P5 award and treating it as not final. 7. Ext.P5 award passed by the Lok Adalat, in fact, is not at all an award, but only an order recognizing the terms of settlement arrived by parties to resolve the disputes between them subject to some conditions. To attain the character of an award passed by a Lok Adalat it should result in disposal of the case/s, and such an award of the Lok Adalat alone can be deemed to be a decree passed by a civil court, as stated under Section 21 of the LSA Act. Nothing of the conditions and terms agreed upon by the parties fixing a date to verify compliance, by Lok Adalat cannot be treated as an award, and deemed to be a decree passed by a civil court. In the context, it is also to be taken note that there is an embargo from preferring an appeal against the award, and it shall be final and binding on all the parties. Where the Lok Adalat records the terms arrived at by the parties for resolution of the disputes, but something more has to be done for cessation of the proceedings and disposal of the case on the terms arrived at by the parties and referred case is posted for further enquiry by the Lok Adalat what has been recorded by it reflecting the terms agreed upon by the parties can only be treated as noting of the terms required to be fulfilled by the parties. When the case as such has not been disposed of, and further consideration by the Lok Adalat is called for even on the terms settled by the parties recording of the terms as aforesaid with further posting given cannot be treated as an award passed by the Lok Adalat disposing the case. So much so, recording made by the Lok Adalat reflecting in Ext.P5 cannot be treated as an award passed which is final and binding on the parties. When that be so, dropping of the proceedings in one of the cases (M.C.No129 of 2010) referred to Lok Adalat treating Ext.P5 award as final and continuation of the other case (M.C.No132 of 2010) on the premise that the award has not been complied with, is erroneous and patently unsustainable. In such circumstances where Ext.P5 order cannot be treated as final and not disposing of the cases as such, both the cases have to be tried and disposed of on merits by the magistrate. 8. Learned counsel for the respondents relying on Thomas v. Thomas Job {2005 (3) KLT 1042 (SC) has contended that even if something more is to be done under Ext.P5 award passed by the Lok Adalat the civil court has jurisdiction to supplement and take such steps necessary to give life and enforceability to the compromise award. Where award is only in name, and, no disposal of the cases referred to has been made by the Lok Adalat, its recording of the terms of settlement by the parties to the proceedings which required satisfaction and fulfillment of certain conditions, with further posting given to report such compliance, will not give rise to a compromise binding on the parties. So much so, the decision referred to has no applicability to the present case. Yet another challenge was raised that against Ext.P5 award no challenge will lie at the instance of any of the parties to the reference. An award passed by the Lok Adalat, though not appealable, can be challenged filing a petition under Article 226/227 of the Constitution. (See State of Punjab v. Jalour Singh {AIR 2008 SC 1209}. I have already stated that Ext.P5 cannot be treated as an award passed by the Lok Adalat. So much so, the original petition filed by the petitioners assailing Ext.P5 award is perfectly maintainable. 9. (See State of Punjab v. Jalour Singh {AIR 2008 SC 1209}. I have already stated that Ext.P5 cannot be treated as an award passed by the Lok Adalat. So much so, the original petition filed by the petitioners assailing Ext.P5 award is perfectly maintainable. 9. After passing of Ext.P5 admittedly, proceeding commenced at the instance of the 2nd respondent M.C.No.132 of 2010, is still retained by the magistrate. The other proceeding M.C. No. 129 of 2010 at the instance of the 1st petitioner also requires to be taken back on file and disposed of on merits. Even assuming that there was withdrawal (M.C.No.129 of 2010) in view of passing of Ext.P5 award, where it is found that Ext.P5 cannot be treated as an award, interests of justice demand taking back M.C.No129 of 2010 on the file to proceed further for its disposal in accordance with law. 10. Ext.P5 award passed by the Lok Adalat is set aside. Chief Judicial Magistrate, Thodupuzha is directed to take back M.C.No.129 of 2010 on his file. Both proceedings M.C.Nos.129 and 132 of 2010 shall be disposed of in accordance with law at the earliest, after affording reasonable opportunity to both sides to substantiate their respective case. Original petition is disposed with directions as above.