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2017 DIGILAW 1296 (HP)

Joni v. Anokhi Ram

2017-11-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Civil Suit No. 110/1 of 2000 was instituted by the plaintiff, one Anokhi Ram against since deceased defendant Roshni Devi, wherein, he claimed a decree for foreclosure, of, mortgage AND for sale of the mortgaged property. Thereupon learned Civil Judge (Junior Division), Arki on 30.06.2006, hence, pronounced an affirmative preliminary decree, operative portion whereof reads as under:- “The cumulative effect of my findings arrived supra is that the suit of the plaintiff succeeds and it decreed with costs. The plaintiff is entitled to recover a sum of Rs.38,000/- along with interest @9% per annum from the defendant within 6 months. A preliminary decree be drawn accordingly. File after its due completion be consigned to record room.” 2. Subsequent thereto, plaintiff Anokhi Ram instituted an application, cast under the provisions of Order 34, Rules 3,4 and 5 of the CPC, for a final decree being pronounced upon Civil Suit bearing No. 110/1 of 2000. The defendants/JDs instituted reply thereto. However, during, the pendency of the aforesaid application, before the learned trial Court, defendant Nos.1(i) and (ii), were, under a verdict recorded on 30.10.2012, hence ordered to be proceeded against ex-parte. The aforesaid order was not concerted, to be set aside, by appropriate motions being made there before by the aforesaid defendants. On 23.03.2013, the learned trial Court, made, an order, for, reference of the apposite application vis-a-vis the Megha Lok Adalat. Persual of the order sheet, of, 23.03.2013, whereat the impugned rendition, was, recorded by the Chairman of the Mega Lok Adalat, without its thereon holding signatures of members thereof, (i) reveals that on the relevant date, defendants No. 1(i) and 1(ii), without, theirs being permitted to join the proceedings; (ii) also without theirs consenting, to a reference, of, the lis engaging the parties at contest, being made by the learned trial Judge, vis-a-vis Mega Lok Adalat, (iii) the trial Judge, yet proceeding to pronounce the impugned rendition. Under the impugned rendition, the apposite application, cast before the learned trial Court under the provisions of Order 34, Rules 3, 4 and 5, was hence allowed. Under the impugned rendition, the apposite application, cast before the learned trial Court under the provisions of Order 34, Rules 3, 4 and 5, was hence allowed. A perusal of the impugned rendition, discloses (iv) that a consent or an amicable settlement occurred only vis-avis defendant No.2 and the plaintiff/decree holder, (v) imminently no consent thereat was purveyed by defendants No. 1(i) and 1(ii)/JDs concerned vis-a-vis the Mega Lok Adalat, for the latter proceeding to record the impugned order. 3. The aforestated trite factum, of, the JDs concerned, being proceeded against ex-parte on 30.10.2012 also theirs upto 23.03.2013, not being permitted to join the proceedings, spurs grave legal implications. For fathoming the legality of the impugned pronouncement, an allusion is imperative vis-a-vis the provisions of Section 20, of The Legal Services Authorities Act, 1987 (hereinafter referred to as the Act), provisions whereof stand extracted hereinafter: “20. Cognizance of cases by Lok Adalats.—(1) Where in any case referred to in clause (i) 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 Adalat, 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) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Where any case is referred to a Lok Adalat under subsection (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. (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 (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under subsection (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1).].” A perusal of the provisions, borne, in sub section (1)(a) of Section 20 of the Act unfold (i) that a consensus ad idem inter se the contesting parties, vis-a-vis the apposite lis, being referred, for its consensual settlement, through the aegis of Lok Adalats, warranting its imperatively surfacing, for validating any cognizances thereon by Lok Adalats. Even though, clause (b) to subsection (a) of Section 20 of the Act, permits, one, of the contesting parties, to, beseech the Court concerned, to make a reference of the lis, to, the Lok Adalat concerned, whereupon, upon the Court concerned after recording its prima facie satisfaction, that there are chances of its amicable settlement thereat, it also holding the jurisdiction to refer it to the Lok Adalat, reference whereof, to the Lok Adalat foisting the latter with the jurisdiction, to take a valid cognizance thereon. The afore-extracted provisions, of Section 20 of he Act, do, unravel that provisions thereof, remaining grossly unaccomplished, given (i) the learned Civil Judge concerned in making a reference of the lis, to, the Lok Adalat concerned, his yet prior thereto, not, eliciting the consent of all the contesting parties; (ii) significantly when the JDs concerned prior thereto, stood, proceeded against ex-parte, hence, were disabled to purvey their apposite consent, to the learned Civil Judge concerned, for his making a valid reference of the lis vis-a-vis the Lok Adalat; (iii) no application existing on record in satiation of clause (b) to subsection (1) of Section 20 of the Act nor any prima facie, satisfaction being recorded thereon, by the learned Civil Judge concerned, qua the possibility thereat of an amicable settlement inter se the contesting parties, being imminent, (iv) thereupon, his proceeding to make reference of the lis to the Lok Adalat, renders any cognizance taken thereon, by the Lok Adalat concerned to be jurisdictionally void. 4. Further more, a reading of the proviso appended, to the substantive provisions embodied in sub section (1) of Section 20 of the Act, makes a palpable display, of no matters being referable to the Lok Adalat, unless, an apposite reasonable opportunity of being heard is given to the respective contestants, affordings of opportunity whereof, would occur only upon theirs being evidently served. However, the defendants/JDs concerned being proceeded against ex-parte, much prior, to an order of reference being made by the trial judge vis-a-vis the Lok Adalat concerned, (i) also theirs not joining the proceedings nor prior to the learned trial Court concerned, making the apposite order of reference, its evidently not issuing any notice upon them, for eliciting their consent qua reference of the lis vis-a-vis the Lok Adalat concerned, (ii) renders any cognizance taken, upon the apposite application, by Mega Lok Adalat, to be jurisdictionally void. Concomitantly, the impugned orders pronounced by the Mega Lok Adalat are jurisdictionally stained. 5. The Lok Adalats are statutorily conceived alternative dispute redressal mechanisms, (i) any redressal of disputes, in proceedings taken up, before Lok Adalats, enjoins the participation therein of the contesting parties vis-a-vis the apposite lis. Concomitantly, the impugned orders pronounced by the Mega Lok Adalat are jurisdictionally stained. 5. The Lok Adalats are statutorily conceived alternative dispute redressal mechanisms, (i) any redressal of disputes, in proceedings taken up, before Lok Adalats, enjoins the participation therein of the contesting parties vis-a-vis the apposite lis. Predominantly, the hallmark of proceedings, initiated, before the statutorily constituted alternative dispute redressal mechanisms, as is, the statutorily constituted Lok Adalats, (ii) is of peremptoriness, of consensual participation of all the contestants therein, especially in contemporaneity vis-a-vis the making of any order or any settlement, (iii) each of the contestants being statutorily enjoined, to purvey their consents vis-a-vis the Awards/Settlements, made, by the Lok Adalats concerned. Apparently, the aforesaid salutary principles, underpinning, the statutorily contemplated mechanism, of, alternative dispute redressal mechanisms, stand grossly infringed, (iii) given the Lok Adalat concerned, despite, its not eliciting the participation of all the contestants, (iv) nor it obviously eliciting their consent vis-a-vis the purported settlement arrived, at inter se the Decree holder/plaintiff and defendant No.2, (v) whereas, consent in respect thereof was also warranted to stand evinced, from the contesting JDs/defendants concerned, (vi) whereas, evidently theirs not meeting their consent thereto, (v) renders any cognizance taken upon the apposite lis by the Lok Adalat also any occurrence of any recorded settlement inter se the DH/plaintiff and defendant No.2, to be not holding any jurisdictional sanctity. 6. The effect of the aforesaid discussion, is that the impugned order rendered by the Chairman, Lok Adalat, Arki on 23.03.2013 in Civil Misc. Application No.221/6 of 2007, is quashed and set aside and the application is remanded to the learned Civil Judge (Junior Division), Arki, with a direction to in accordance with law, decide it afresh. The parties are directed to appear before the learned Civil Judge (Junior Division), Arki on 26.12.2017. Accordingly, the instant petition is allowed. No order as to costs. All pending applications also stand disposed of.