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2014 DIGILAW 622 (ORI)

Purna Chandra Das v. Pagili Das

2014-09-24

S.PANDA

body2014
JUDGMENT S.PANDA, J. Petitioner in this writ petition has challenged the order dated 29.11.2004 passed in C.S. No. 653 of 2004-1 in Permanent Lok Adalat by the Registrar Civil Courts, Balasore. 2. The facts leading to the present writ application are as follows: It reveals from the petition that C.S. No. 653 of 2004-1 was filed for partition of the ancestral jointly family properties of the petitioner, wherein petitioner was the plaintiff. The opposite party Nos. 1 to 3 are defendant Nos. 1, 2 and 4 and Chemi Das the mother of the present petitioner was impleaded as defendant No.3 who died in the meantime. The defendant Nos. 1 and 2 are the wife and son of petitioner's elder .brother Siba Prasad Das and defendant No.4 is the sister. In the said suit Advocate Mr.Manoranjan Nayak was appeared for defendant Nos. 3 and 4 who is the husband of present opposite party No.4. It is alleged that the suit was filed by the said Advocate through one of his friend who has appeared for the plaintiff even though the plaintiff is a insane person and has not been represented through his next friend. The plaintiff became insane sometimes in the year 1982 and in spite of several treatments he could not be cured. He was involved in a Sessions case i.e. S.T. Case No. 153 of 1985 which was ended on 5.12.1987 as the petitioner was suffering from insanity. The copy of the said Judgment was filed as Annexure-1 to the present writ petition. The court has taken into consideration in the said Sessions case the documentary evidence regarding the insanity of the petitioner which was continuing from the year 1984 onwards. The aforesaid advocate has appeared for the petitioner as defence counsel. It is stated that the petitioner is moving hither and thither and does not understand any rational things. He has not recovered from the insanity and as per the version of the treating physician there is no possibility of his recovery. While the matter stood thus, the suit was filed and said partition suit was disposed of on compromise in the Lok Adalat without any knowledge of the plaintiff or through his next friend i.e. his wife at the instance of the advocate. While the matter stood thus, the suit was filed and said partition suit was disposed of on compromise in the Lok Adalat without any knowledge of the plaintiff or through his next friend i.e. his wife at the instance of the advocate. In the said compromise petition lands allotted to the share of other defendants were superior qualities which situates in Balasore town planning area where as the land allotted to the plaintiff were inferior and barren land and there was unequal and improper distribution of properties. The defendant Nos. 3 and 4 being illiterate village rustic pardanishini ladies do not know how to read and write, they put their thumb impressions and the compromise petition was filed. In the said petition petitioner's signature was also not identified by the advocate and without any affidavit. There is also dispute regarding the signature put in each page of the compromise petition and in the last page which was in a form of verification. The court below accepted the said application on the strength of advance petition and allowed the said application on the same date in Lok Adalat Accordingly suit was decreed on the terms of compromise which was formed part of the decree. After the decree was passed learned counsel who was engaged on behalf of defendant Nos. 3 and 4 managed to purchase the said valuable properties in the name of his wife the present opposite party No.4 in a throwaway price. When the said fact Game to the knowledge of the wife of the petitioner she has enquired into the matter and applied for the certified copy and filed the present petition challenging the legality of said compromise decree passed in the Lok Adalat. 3. Learned counsel for the petitioner submitted that as per the Legal Services Authority Act, 1987 there is a bar under Section 22-E (4) to file a suit. Hence the petitioner invokes the jurisdiction of this Court under Article 227 of the Constitution of India. He further submitted that in view of prohibition made under Rule 21 and 22 of the Rules (hereinafter referred to as the 'Rules') made under Section 49(1) (c) of the Advocates Act regarding the standard of professional conduct and etiquette the purchase of properties by the opposite party NO.4 is illegal, hence interference of the order is warranted. He further submitted that in view of prohibition made under Rule 21 and 22 of the Rules (hereinafter referred to as the 'Rules') made under Section 49(1) (c) of the Advocates Act regarding the standard of professional conduct and etiquette the purchase of properties by the opposite party NO.4 is illegal, hence interference of the order is warranted. In support of his contention he has cited the decisions reported in AII-1 1998 SC 283, AIR 1997 SC 879 , (1998) 9 SCC 169 , (2008) 2 sec 660, (2007) 7 SCC 482 . 4. Opposite party NO.4 has appeared through counsel and filed a detailed counter taking a stand that she has purchased the property after obtaining permission from the competent authority as the vendor is a Scheduled Caste person. The vendor has also party to other sale deed subsequently hence, the plea of insanity is not correct. Further he has submitted that the writ petition is not maintainable as the petitioner taking a plea of fraud. In view of said plea the petitioner should have been moved before the same court who has passed the decree and after disposal of the suit she has purchased the property as there was no pending cases therefore, there is no illegality or infirmity in the purchased of the property. In support of his contention he has cited the decisions reported in AIR 2012 SC 628 , Dhanraj Singh Choudhary v. Nathulal Vishwakarma, 2014 (1) OLR (SC) 595, Daljit Kaur and another V. Muktar Steels Private Limited and others, 2011 (II) OLR 1041 , Rutu Bariha v. Raghunath Mishra and three others. 5. Learned counsel appearing for opposite party Nos. 1 and 3 supported the plea of the petitio'ner and submitted that their L.T.l. was taken for sale of the ancestral property and they have not received any consideration. However it was not disclosed that a suit for partition was filed and they are not aware about all those transactions being pardanishine ladies. 6. 1 and 3 supported the plea of the petitio'ner and submitted that their L.T.l. was taken for sale of the ancestral property and they have not received any consideration. However it was not disclosed that a suit for partition was filed and they are not aware about all those transactions being pardanishine ladies. 6. The Apex Court in the case of P.D. Gupta V. Ram Murti and another reported in A.I.R. 1998 S.C. 283 taking into consideration Section 35 of the Advocates Act held that advocate purchased property which is subject matter of litigation from his client at throwaway price doubt cast on his Client's title to property and advocate in a position to exercise undue influence on her advocate sold property to third party made more profit and created more complications in pending suit he is guilty of misconduct. In the case of Harish Chander Singh V.S.N. Tripathi reported in A.I.R 1997 S.C. 879 held that Senior Advocate appointed his own junior as mukhtar of compl3inant in consolidation case misguided his junior and tried to dispose of comrlainant's property in favour of his own fathar advocate guilty of professional misconduct. In the case of Brajendranath Bhargava (dead) by Lrs. V. Ramchandra Kasliwal and another reported in (1998) 9 SCC 169 held that the Advocates had played a active part in securing the property in the name of the benamidar while they were representing one of the parties to the suit taking into consideration that they had taken an active interest in getting the property transferred to their relatives and practically evidence was laid to show that the consideration had come out of their own funds and the penalty imposed by the State Bar Council was confirmed by the court as the Advocates are guilty of professional. mis-conduct. While considering the issue regarding finality of the award passed by Lok Adalat and the remedy against in the case of State of Punjab and another V. Jalour Singh and others reported in (2008) 2 SCC 660 it was held that a proper Lok Adalat award is final and binding. The award becomes executable like a civil court decree and no appeallies. Hpwever a Lok Adalat award can be challenged on very limited grounds under Article 226/227 of the Constitution of India. The award becomes executable like a civil court decree and no appeallies. Hpwever a Lok Adalat award can be challenged on very limited grounds under Article 226/227 of the Constitution of India. The bar under Rule 3-A of Order 23 of the C.P.C. was considered in the case of A.A. Gopalakrishnan V. Cochin Devaswom Soard and others reported in (2007) 7 SCC 482 and held that said provision does not come in the way of High court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. 7. The decision cited by learned counsel for the opposite party in the case of Dhanraj Singh Choudhary (supra) is not applicable to the present case at hand as the facts are different and in the said reported case it was held that while a person practicing law has to practice inspirit of honesty and not in spirit of money. Plea of Advocate of non-requirement of reading of sale deed was highly unethical and could not be believed. Advocate guilty of professional misconduct. The Court has rejected the plea of bonafideness of the advocate while observing the above. In the case of Daljit Kaur (supra) it was held that the compromise had been legally entered into between the parties and the same had been acted upon by both the parties to a major extent. In view of the said fact and circumstances the Apex Court held that no appeal would lie against the said compromise. In the present case the petitioner has alleged regarding mis-representation and unethical personal approach of the counsel. Therefore the said decision has no relevancy to the present case. 8. While dealing with the similar situation this Court in the case of Rutu Bariha (supra) remitted back the matter to the trial court to consider the application to set" aside the award passed in the Lok Adalat. 9. The case at hand the petitioner filed the present application through his wife taking plea of insanity and there are materials available on record to show that the petitioner has been declared as a insane person. However the Civil Court has not enquired into the said plea of the petitioner as provided under Order, 32 of the Code of the Civil Procedure. However the Civil Court has not enquired into the said plea of the petitioner as provided under Order, 32 of the Code of the Civil Procedure. The counsel has purchased the property involved in the very same suit in the name of his wife ignoring the bar under the Rules. The said Rule stipulates the duty of the counsel to .the client and an Advocate shall not buy or traffic in. or stipulate for any share or interest in any actionable claim directly or indirectly either in his own name or in any other name for his own benefit or for the benefit of any other person, in which he was in any way professionally engaged. Hence the conduct and action of the counsel is tell tale. In the present case which needs to be enquired into and to be considered by the trial court in accordance with law. In view of the discussion made hereinabove this Court remits the matter back to the learned Civil Judge (Sr. Divn.), Balasore to enquire into and proceed ill accordance with law. Accordingly the writ petition is disposed of.