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2015 DIGILAW 495 (KAR)

Govardhana v. Appi

2015-04-28

N.KUMAR

body2015
ORDER : N. Kumar, J. 1. Plaintiffs have preferred this writ petition seeking for setting aside the award/decree dated 07.04.2007 passed in O.S. No. 54/2004 by the Lok Adalath and District Legal Service Authority, Udupi District, Udupi, which is produced in this case as Annexure-A. 2. Plaintiffs - Govardhana and Srinivasa filed O.S. No. 54/2004 for partition and separate possession of plaint 'A' schedule properties in fair and equal manner and for cancellation of partition deed executed on 15.03.2004 in respect of plaint 'A' schedule properties. After service of summons, defendants entered appearance and contested the matter. They sought for dismissal of the suit. Issues were framed. Case was posted for trial. At that stage, on a request made by the parties, the suit was referred to Lok Adalath. In the Lok Adalath, a compromise petition was filed on 07.04.2007. Thereafter, the first plaintiff filed miscellaneous application before the Principal Senior Civil Judge and CJM, Udupi for setting aside the said decree. The said application came to be dismissed on the ground that it is not maintainable, reserving liberty to the plaintiffs to challenge the award passed by the Lok Adalath before the appropriate forum. It is after the said order passed on 18.01.2012, the present writ petition is filed challenging the award passed by the Lok Adalath. 3. Learned counsel for the petitioners/plaintiffs assailing the impugned award contends that the plaintiffs have not affixed their signatures to the compromise; award/decree is passed on the basis of a compromise signed by their counsel. The same is patently illegal and therefore, requires to be set aside. It is on the basis of the signature of their advocate, compromise is recorded and an award/decree is passed which is patently illegal and therefore, he submits the impugned award requires to be set aside. 4. Per contra, the learned counsel for the defendants/respondents submits that the parties have entered into a memorandum of family arrangement and subsequently, a partition deed is also executed. When the parties arrived at a settlement, the advocate, on the plaintiffs' instructions has affixed his signature to the compromise petition. Therefore, the said compromise fully binds the plaintiffs and the award cannot be set side on the ground that the plaintiffs are not parties to the compromise or that they have not affixed the signatures to the compromise petition. 5. Therefore, the said compromise fully binds the plaintiffs and the award cannot be set side on the ground that the plaintiffs are not parties to the compromise or that they have not affixed the signatures to the compromise petition. 5. In the light of the above, the following point arises for consideration in this writ petition: Whether a dispute can be resolved by an award/decree before the Lok Adalath in the absence of the parties or without the parties affixing their signatures to the compromise? 6. Sub-Section (5) of Section 19 of the Legal Services Authorities Act, 1987 (for short hereinafter referred to as 'the Act') reads as under: 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: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. Sub-Section (1) of Section 20 provides for Cognizance of cases by Lok Adalats. It reads as under: "(1) Where in any case referred to in clause (1) of sub-section (5) of Section 19- (i)(a) the parties thereof agree; or (b) 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 (ii) the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalath, the Court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such Court except after giving a reasonable opportunity of being heard to the parties. (2) ......... (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. (2) ......... (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) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles". 7. From the aforesaid provisions, it is clear that compromise or settlement between the parties is a sine qua non for the Lok Adalath to resolve the dispute between the parties. In other words, the Lok Adalath has no adjudicatory function. Only when the parties to the lis agree to compromise or settle the dispute, the case or the matter referred to the Lok Adalath can be disposed of in accordance with such terms of compromise or settlement. It presupposes that the parties to the lis should appear before the Lok Adalath and agree to the compromise or settlement. It is not a proceeding before the Court. 8. The Lok Adalath is not a Court as defined under the Act or under the CPC. Order III of CPC authorizes a recognized agent or a pleader to represent a party to a proceeding only before the Court. Therefore, in the Lok Adalath, the compromise or settlement should be between the parties. If the parties have engaged a counsel to appear for them before the Court, then, certainly that counsel can appear before the Lok Adalath and assist the parties to arrive at a compromise and settlement. Once a settlement is reduced into writing, it is for the parties to the lis to affix their signatures in token of their acceptance to the terms of the compromise or settlement. Thereafter, the counsel can affix his signature. But, if the parties do not affix their signatures to the compromise petition or the settlement, the counsel representing the parties before the Court, though participated in the Lok Adalath and assisted the parties in arriving at a settlement, has no authority to enter into a compromise so as to bind his party. Thereafter, the counsel can affix his signature. But, if the parties do not affix their signatures to the compromise petition or the settlement, the counsel representing the parties before the Court, though participated in the Lok Adalath and assisted the parties in arriving at a settlement, has no authority to enter into a compromise so as to bind his party. If the party's consent or acceptance to the compromise is not evidenced because of absence of his signature to a compromise petition or settlement, it only shows that he has not arrived at a compromise or settlement with the opposite party. 9. In the instant case, there are two plaintiffs. They have not signed the compromise petition but their advocate has signed it. The impugned award shows defendant Nos. 6, 7(a) and (b) are placed ex-parte. Therefore, they have also not affixed their signatures to the compromise petition. Perusal of the compromise petition shows that both parties have agreed that the family agreement dated 18.02.2002 and the partition deed dated 11.03.2004 are binding on the parties to the present suit, subject to the modification as set out in the compromise petition. As could be seen from the compromise, acting on the family agreement and partition deed under which the properties of the joint family are partitioned by metes and bounds, an attempt is made to convey properties which had fallen to their respective shares in favour of others, probably, to make adjustments. The plaintiffs have not agreed to the said compromise and as is clear from the facts, they have not affixed the signatures to the compromise. This goes to show that the very purpose of referring the matter to Lok Adalath and conducting Lok Adalath is defeated. In the Lok Adalath, the parties have to come face to face, sit together and resolve the dispute with the assistance of the counsel and the members of the Lok Adalath. If the parties are not coming together, the advocates for the parties cannot force compromise upon them and the Lok Adalath cannot accept such compromise. The manner in which compromise is accepted by Lok Adalath in this case only shows lack of application of mind by the members of the Lok Adalat and also the learned members of the Bar who have affixed their signatures to the compromise petition. The manner in which compromise is accepted by Lok Adalath in this case only shows lack of application of mind by the members of the Lok Adalat and also the learned members of the Bar who have affixed their signatures to the compromise petition. When a person approaches the Court for relief contending that injustice has been done to him, referring the matter to the Lok Adalath and allowing the suit to be compromised or settled in the absence of such party would be traversity of justice. 10. No doubt, the cases have to be speedily decided. Lok Adalath is an alternative disputes resolution mechanism, which is now accepted for speedy disposal of the case. But, in the anxiety to have a speedy disposal, interest of justice should not be sacrificed. Justice is to be done to the parties by a settlement or compromise. If the parties do not accept the compromise or settlement, Sub-Sections (6) and (7) of Section 20 contemplate, Lokadalath shall advise the parties to seek remedy in a Court and record of the case be returned to the Court which referred the matter to Lok Adalath. Thereafter, the Court shall proceed to deal with such case from the stage where it was before such reference was made under sub-section (1) of Section 20 of the Act. This is the mandate of law. 11. In that view of the matter, order passed by the Lok Adalath cannot be sustained. Hence, I pass the following. ORDER Writ petition is allowed. Impugned order passed by the Lok Adalath is hereby set aside. The original suit is restored to its file. The Trial Court shall proceed with the suit, from the stage where it was at the time of reference to Lok Adalath, after giving opportunity to both parties.