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2017 DIGILAW 1083 (ORI)

Labangalata Nayak v. Ramesh Chandra Pattnaik

2017-09-18

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 1. This petition challenges the orders dated 31.1.2014 and 6.2.2014 passed by the Judge, Permanent and Continuous Lok Adalat, Cuttack in Title Suit No.221 of 1979. 2. The brief facts necessary to appreciate the controversy are that one Puspendra Kumari, wife of Sailendra Narayan Singh, was the owner of the land measuring an area of Ac.1.203 dec. appertaining to Khata No.18, Plot No.1032 of Mouza-Tulasipur, Cuttack town with a house standing thereon. She instituted Title Suit No.287 of 1978 against Ramesh Chandra Pattanaik for declaration of right, title and interest, recovery of possession and permanent injunction in respect of Ac.0.82 dec. 5 kadies of land. Ramesh instituted Title Suit No.221 of 1979 for specific performance of contract against Puspendra Kumari in respect of Ac.0.116 dec. of land. Rajanirani Samantasinghar, mother of Ramesh, instituted Title Suit No.256 of 1979 against Sailendra, husband of Puspendra Kumari & others for specific performance of contract. Sukanti Pattnaik, wife of Ramesh, instituted C.S.(I) No.38 of 2006 for a declaration that the sale deed No.3552 dated 21.6.2005 executed by the learned Civil Judge (Senior Division), 1st Court, Cuttack as void, illegal and inoperative and to declare the judgment and decree dated 19.4.2003 and 2.5.2003 respectively passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in Tile Suit No.443 of 2000 as void and not binding. All the suits had been instituted in the court of the learned Civil Judge (Senior Division), 1st Court, Cuttack The schedule of properties, mentioned in all the suits, are as follows; SUITS SCHEDULE T.S. No.287 of 1978 Khata No.18, Plot No.1032 Ac.0.82 dec. 5 kadies T.S. No.221 of 1979 Sabak Khata No.18, Plot No.1032 corresponding to Hal Khata No.7320, Hal Plot No.558/1545, area Ac.0.116 dec. T.S. No.256 of 1979 Sabak Khata No.18, Plot No.1032 corresponding to Hal Khata No.730, Hal Plot No.557, area Ac.0.80 dec. C.S. No.38 of 2006 Khata No.18, Plot No.1032, Area Ac.0.80 dec. All are of Mouza-Tulsipur Cuttack town 3. The petitioner as plaintiff instituted Title Suit No.443 of 2000 for specific performance of contract against Puspendra Kumari. The suit was decreed. Since the defendant did not come forward to execute the sale deed, the decree was executed and the sale deed was registered in his favour through process of court on 21.6.2005 in respect of the land appertaining to Hal Khata No.730, Hal Plot No.557, Ac.0.105 dec. 4. The suit was decreed. Since the defendant did not come forward to execute the sale deed, the decree was executed and the sale deed was registered in his favour through process of court on 21.6.2005 in respect of the land appertaining to Hal Khata No.730, Hal Plot No.557, Ac.0.105 dec. 4. Sukanti was not a party in T.S No.256 of 1979. She filed an application for impleadment. The same was allowed. Thereafter, Sukanti instituted C.S. No.38 of 2006 seeking reliefs mentioned supra. Pursuant to the order of this Court, four suits continued simultaneously. All suits were posted for judgment on 30.1.2014. On the same day, opposite party no.1 and opposite party nos.2 to 8 filed a petition for compromise in Title Suit No.221 of 1979 and dismissal of connected suit, i.e., Title Suit No.287 of 1978. On the very day aforesaid opposite parties filed another petition for compromise of T.S. No.256 of 1979 and C.S (I). No.38 of 2006. The petitions were rejected. Title Suit No.256 of 1979 and C.S. No.38 of 2006 were dismissed on contest. The compromise petition filed in Title Suit No.221 of 1979 was sent to the Permanent and Continuous Lok Adalat, Cuttack. The petitioner made objection to the compromise on the ground that a portion of her land had been included in the compromise petition and the same was not the subject-matter of dispute in the suit. The compromise petition does not contain any specific schedule. The same only relates to Schedule-B of the plaint in T.S. No.221 of 1979, i.e., Plot No.558/1545. The compromise petition was not supported by affidavit. Though the area of Plot No.558/1545 was Ac.0.70 dec., but then the area Ac.0.116 dec. was included in the compromise petition without any specification. The Judge, Permanent and Continuous Lok Adalat, Cuttack overruled the objection of the petitioner. On the basis of the memo filed by opposite party no.2 indicating the area proposed to be transferred, the compromise was recorded and the suit was disposed of in terms of the compromise. 5. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. S.P. Mishra, learned Senior Advocate along with Mr. K.M. Dhal and Mr.A. Mohanty, learned counsel for opposite party no.1. 6. Mr. Mohanty, learned counsel for the petitioner submitted that the petition under Article 227 of the Constitution is maintainable against the award passed by the Permanent and Continuous Lok Adalat. D.P. Mohanty, learned counsel for the petitioner and Mr. S.P. Mishra, learned Senior Advocate along with Mr. K.M. Dhal and Mr.A. Mohanty, learned counsel for opposite party no.1. 6. Mr. Mohanty, learned counsel for the petitioner submitted that the petition under Article 227 of the Constitution is maintainable against the award passed by the Permanent and Continuous Lok Adalat. Aggrieved party can challenge the same under Article 226 and/or Article 227 of the Constitution. Since the petitioner was not a party to the compromise, but was substantially affected by the decree, the petition is maintainable. He further contended that the petitioner as plaintiff instituted T.S. No.443 of 2000 for specific performance of contract against Puspendra Kumari. The suit was decreed. As the defendant did not come forward to execute the sale deed, the sale deed was executed through process of court on 21.6.2005. A part of an area has been illegally included in the compromise petition filed by the parties. The petitioner was not a party to the said suit. Her objection was overruled without any rhyme or reason. The effect of compromise will take away the judgment and decree passed by the competent court of law. To buttress his submission, he relied on the decision of the apex Court in the case of State of Punjab v. Jalour Singh, AIR 2008 SC 1209 . 7. Per contra Mr. Mishra, learned Senior Advocate for the opposite party no.1 contended that the petitioner has no locus standi to challenge the legality and validity of the compromise decree/award passed by the Permanent and Continuous Lok Adalat. Title Suit No.287 of 1978 and Title Suit No.221 of 1979 were heard analogously and at the fag end of the trial of the suits, the parties entered into compromise, whereupon the defendant agreed to execute the registered sale deed in favour of the plaintiff-opposite party no.1 in respect of the suit property in T.S. No.221 of 1979 after receiving consideration of Rs.21,46,000/-. The compromise petition was referred to the Permanent and Continuous Lok Adalat whereafter the award was passed. The petitioner was not party in both the suits. The consent decree was merely the record of contract between the parties. Since no sale deed has been executed and registered as yet by defendants-opposite parties 2 to 8 in favour of plaintiff-opposite party no.1, the award is still in the domain of an executory contract. The petitioner was not party in both the suits. The consent decree was merely the record of contract between the parties. Since no sale deed has been executed and registered as yet by defendants-opposite parties 2 to 8 in favour of plaintiff-opposite party no.1, the award is still in the domain of an executory contract. He further contended that the claim of opposite party no.1 in the suit was for Ac.0.116 dec. out of Sabik Plot No.1032 with boundaries given in Schedule-B of the plaint. It is preposterous on the part of the petitioner to say that the Permanent and Continuous Lok Adalat took objection raised by the petitioner into consideration but in a most improper manner asked opposite party no.2 to file a separate memo as to from which plot, balance area was proposed to be transferred under the compromise. Since the area of Hal Plot No.558/1545 is Ac.0.070 dec., opposite party no.2 on the direction of the Permanent and Continuous Lok Adalat rightly filed a separate memo indicating therein that he was proposing to transfer the balance area of Ac.0.046 dec. out of H.S Plot No.557 which stood recorded in the name of his mother. It is only after the sale deed is executed and registered, then only it can be ascertained as to whether the right, title and interest of the petitioner over Hal Plot No.557 is affected, since during Hal settlement operation Sabik Plot No.1032 has been sub-divided into several Hal plots including Hal Plot No.557. He further contended that the mother of opposite parties 2 to 8 filed T.S No.287 of 1978 for eviction of opposite party no.1 and recovery of possession of Ac.0.082 dec. 5 kadies of land out of Sabik Plot No.1032 since opposite party no.1 was in possession of that portion of Sabik Plot No.1032. In the event T.S No.287 of 1978 is decreed, opposite party no.1 is liable to be evicted from Ac.0.082 dec. 5 kadies of land. Thus the petitioner has no valid and genuine grievance against the compromise decree/award. He further contended that it is open to the petitioner to file appeal under Sec. 96 CPC, as she was not a party to the suit or institute a separate suit. 5 kadies of land. Thus the petitioner has no valid and genuine grievance against the compromise decree/award. He further contended that it is open to the petitioner to file appeal under Sec. 96 CPC, as she was not a party to the suit or institute a separate suit. He relied on the decisions of this Court in the case of Kedar Nath Nayak @ others v. Sisira Dei (dead) substituted by L.Rs & others, 2015 (II) ILR – Cut. 504, Smt. Gourimani @ Umamani Devi & others v. Narayan Tripathy @ others, 2016 (I) CLR 398 and Ramakrushna Muda v. Raghunath Mudra & others, 2016 (Supp.-II) OLR 750. 8. The seminal point that inter alia hinges for consideration is as to whether the petition under Article 227 of the Constitution of India is maintainable against the award passed by the Lok Adalat ? 9. In Jalour Singh (supra), the question arose before the apex Court as to what is the remedy available to the aggrieved person of the award passed by the Lok Adalat under Sec. 20 of the Legal Services Authorities Act. In that case, the award was passed by the Lok Adalat resulting in disposal of the appeal pending before the High Court pertaining to a claim case arising out of Motor Vehicle Act. Assailing the award, one party to the appeal filed a writ petition under Article 226/227 of the Constitution of India. The High Court dismissed the writ petition holding, inter alia, that the same is not maintainable. The aggrieved party filed an appeal by way of special leave before the apex Court. The apex Court, after examining the scheme of the Act allowed the appeal and set aside the order of the High Court. The apex Court held - “12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits.” 10. Taking a cue from Jalour Singh (supra), the apex Court in Bharvagi Constructions & another v. Kothakapu Muthyam Reddy & others (Civil Appeal No.11345 of 2017 arising out of SLP(C) No.23605 of 2015) disposed of on 07.09.2017) held thus; “(27). In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds. (28) In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (respondents herein/plaintiffs) was to file a writ petition under Article 226 and/or 227 of the Constitution of India in the High Court for challenging the award dated 22.08.2007 passed by the Lok Adalat. It was then for the writ Court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing. (29) The High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. (29) The High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the suit can be filed to challenge the award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do not concur.” 11. The law laid down by the apex Court in the case of Jalour Singh & Bharvagi (supra) proprio vigore apply to the facts of the case. 12. Thus inescapable conclusion is that notwithstanding the bar contained in Legal Services Authorities Act or Order 23 Rule 1-A (ii) CPC, the only remedy available to the aggrieved person is to challenge the award of the Permanent and Continuous Lok Adalat by filing a petition under Article 226 and/or Article 227 of the Constitution. 13. In Ramakrushna Mudra (supra), this Court relied on the decision of the apex Court in the case of Municipal Corporation of Delhi v. Sh. Jai Singh and others, 2010 AIR SCW 5968 wherein the scope of Article 227 of the Constitution had been dealt with. In Municipal Corporation of Delhi (supra), the apex Court held : “xxx xxx xxx Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a ‘bull in a china shop’, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice. xxx xxx xxx” 14. On the anvil of the decisions cited supra, the instant case may be examined. The assertion of the petitioner is that the suit filed by her against Puspendra Kumari for specific performance of contract had been decreed. The sale deed was executed through process of court on 21.6.2005. She was not a party to Title Suit No.221 of 1979 and Title Suit No.287 of 1978. A portion of land which was alienated in her favour, had been included in the compromise petition. In the event the compromise decree is given effect to, then earlier decree passed in her favour and consequential execution of the sale deed will be non est. The same cannot be. Since the case requires adjudication of the aforesaid aspect, a detailed scrutiny of the record is to be made. 15. In view of the same, the impugned orders dated 31.1.2014 and 6.2.2014 passed by the passed by the Judge, Permanent and Continuous Lok Adalat, Cuttack in Title Suit No.221 of 1979 are set aside. The matter is remitted back to the learned trial court. Liberty is granted to the petitioner to file a petition in support of her case. 15. In view of the same, the impugned orders dated 31.1.2014 and 6.2.2014 passed by the passed by the Judge, Permanent and Continuous Lok Adalat, Cuttack in Title Suit No.221 of 1979 are set aside. The matter is remitted back to the learned trial court. Liberty is granted to the petitioner to file a petition in support of her case. It is open to the opposite parties to file objection to the same. Learned trial court shall ascertain as to whether the suit schedule land alienated in favour of the petitioner through process of court by means of registered sale deed dated 21.6.2005 has been included in the compromise petition. In the event learned trial court comes to the conclusion that the petitioner’s land has been included in the compromise petition, it shall exclude the same. Thereafter, the learned trial court shall dispose of the suits in terms of the compromise petition filed by the parties. 16. On a bare reading of the decisions in the case of Gourimani and Kedar Nath Nayak (supra), it is evident that the same are distinguishable on facts. 17. The petition is allowed to the extent indicated above. No costs.