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2023 DIGILAW 586 (AP)

Peddireddy Sridhar Reddy v. Pottipati Rosi

2023-03-17

M.GANGA RAO, T.MALLIKARJUNA RAO

body2023
ORDER: [M. Ganga Rao, J.] 1. This writ petition has been filed seeking to issue a writ of Certiorari by calling for the records of the Lok Adalat Award dated 08.12.2018 in LAC.No.778 of 2018 of District Legal Services Authority, Kadapa, in OS.No.207 of 2018 on the file of the III Additional Junior Civil Judge’s Court, Kadapa and to quash the said award as it was obtained by playing fraud on the respondent No.8. 2. Heard Sri Syed Kaleemulla, learned counsel for the petitioners and Sri Balaji Medamalli, learned counsel for the respondents 1 to 3 & 5 and Sri G. Sai Narayana Rao, learned counsel for the respondents 6 & 7 and Sri S. Lakshminarayana Reddy, learned counsel appearing for the 8th respondent. 3. The case of the petitioners is that they are brothers and they purchased land extent Ac.0.51 cents of site in S.No.908/1A2A1A with specific boundaries situated in Chinnachowk village fields i.e., 8th ward called Prakash Nagar of Kadapa Municipal Area under a registered sale deed dated 11.04.2011 for a valuable consideration. Since then, they have been in possession and enjoyment of the said property to the knowledge of one and all including the respondents 1 to 7. Subsequently, the 1st petitioner gifted his share in favour of the 2nd respondent through registered gift settlement deed, dated 07.10.2017. Hence, the 2nd petitioner has become the owner and possessor of the landed property extent Ac.0.51 cents situated in S.No.908/1A2A1A. He has been in possession and enjoyment of the property. He also mortgaged the said property to the SBI Main Branch, Kadapa. While things stood thus, respondents 1 to 5 (plaintiffs) filed OS.No.207 of 2018 before the III Additional Junior Civil Judge’s Court, Kadapa, arraying the writ petitioners and respondents 6 & 7 as defendants for permanent injunction restraining them from claiming any right or authority in respect of the plaint schedule i.e., Ac.0.51 cents of open site situated in D.No.908/1A2A1 of Chinnachowk village fields. The petitioners being the defendants 3 & 4 in the suit filed their vakalat through an advocate and the respondents 6 & 7 being the defendants 1 & 2 also filed vakalat but they failed to file written statements thereby they were set ex parte. The petitioners being the defendants 3 & 4 in the suit filed their vakalat through an advocate and the respondents 6 & 7 being the defendants 1 & 2 also filed vakalat but they failed to file written statements thereby they were set ex parte. Subsequently, the respondents 6 & 7 (defendants 1 & 2) filed a petition under Order IX Rule 7 CPC along with written statement and the said petition was allowed and their written statement was received. But the petitioners could not file any such petition due to miscommunication between the petitioners and their advocate. 4. Pending the suit, the respondents 1 to 5 the plaintiffs in the suit and respondents 6 & 7 being the defendants 1 & 2 got filed a memo to refer the matter to the lok adalat by colluding with each other and played fraud on the 8th respondent and got the compromise decree as if the suit property was divided among themselves and got the impugned lok adalat award LAC.No.778 of 2018 of the District Legal Services Authority, Kadapa in OS.No.207 of 2018 on the file of III Additional Junior Civil Judge Court, Kadapa on 08.12.2018. Being aggrieved by the same, the petitioners filed this writ petition. 5. This Court on 06.03.2020 suspended the impugned award in IA.No.1 of 2020. 6. Respondents 1 to 3 & 5 filed counter along with IA.No.1 of 2022 to vacate the interim order stating that originally the property in S.No.908/1A2 extent Ac.0.35 cents out of Ac.1.00 cents in Sy.No.908/1A2 was the ancestral property of Sanapureddy Harinarayan Reddy. He made the same into a layout consisting of 9 plots with 30 links road on the West side. Out of the said 9 plots, 7 plots were sold in favor of Vengamma and 6 others. Thereafter, the said V. Vengamma have sold the said plots in favour of Palagiri Venkata Subba Reddy & others. The said P.Venkata Subbareddy & others who purchased the property in Sy.No.908/1A2 have changed the boundaries and shown the Sy.No.908/1A2A1A and executed a GPA in favour of Akula Prasad Babu and B. Ravikumar vide document No.64/2011 dated 03.02.2011 and thereafter vide document bearing No.2757 of 2011 dated 11.04.2011 have sold the said property in favour of writ petitioners. The said P.Venkata Subbareddy & others who purchased the property in Sy.No.908/1A2 have changed the boundaries and shown the Sy.No.908/1A2A1A and executed a GPA in favour of Akula Prasad Babu and B. Ravikumar vide document No.64/2011 dated 03.02.2011 and thereafter vide document bearing No.2757 of 2011 dated 11.04.2011 have sold the said property in favour of writ petitioners. Though the subject land is purchased by the vendors of the writ petitioners originally in Sy.No.908/1A/2 with an extent of Ac.0.05 cents of the seven plots and the said boundaries were changed and obtained the present sale deed with the S.No.908/1A2A1A showing it as subdivision and claiming altogether a different land which belongs to the family of the 1st respondent. The husband of the 1st respondent, late Pottisati Srinivasulu Reddy purchased an extent of Ac.2.75 cents in S.No.908/1A2A1A of Chinnachowk revenue village under registered document No.364 of 2008, dated 05.02.2008 under GPA cum agreement of sale from the legal heirs of Ponnolu Ramanna and 3 others who had purchased an extent of Ac.36.00 cents in Sy.No.908 in the year 1889. When the writ petitioners and their men were trying to interfere with their possession of the property, they filed OS.No.207 of 2018 on the file of III Additional Senior Civil Judge, Kadapa against the writ petitioners and others. Initially the writ petitioners filed their vakalat and thereafter they remained ex parte. The writ petitioners have not taken any steps seeking to aside the ex parte order and the same became final. The other defendants i.e., respondents 6 & 7 came forward accepting the plea of the plaintiff and accordingly a settlement was arrived before the District Lok Adalat vide award dated 08.12.2018. Thereafter, though the writ petitioners are well aware of the award passed by the lok adalat have kept quiet for a long time and filed the present writ petition with all false and frivolous allegations. To give a quietus to the issue they got settled the matter before the Lok Adalat and the same was recorded on 08.12.2018 and accordingly award was passed. There is no illegality or irregularity in the impugned award passed by the Lok Adalat. 7. The 7th respondent also filed counter on the same lines. 8. To give a quietus to the issue they got settled the matter before the Lok Adalat and the same was recorded on 08.12.2018 and accordingly award was passed. There is no illegality or irregularity in the impugned award passed by the Lok Adalat. 7. The 7th respondent also filed counter on the same lines. 8. Sri Syed Kaleemulla, learned counsel for the writ petitioners would contend that even though the writ petitioners filed vakalat and failed to file written statement they could not be set ex parte and only their right of filing written statement stands forfeited as per Order IX Rule 1(a) of CPC. The court cannot order at that stage the suit be heard ex parte under Order IX Rule 6(1a) of CPC. The court before referring the matter to the Lok Adalat on the joint memo filed by the plaintiffs and defendants 1 & 2 has to put all the parties under notice as per the proviso of Section 20 Sub-Section 1 of the Legal Services Authority Act, 1987 which mandates that all the parties be put on notice. Even the parties who were set ex parte before referring the matter to the Lok Adalat. Even the Lok Adalat before recording the compromise, all the parties should be put on notice and they shall be present before the Lok Adalat sign on the terms and conditions of the memorandum of settlement before passing the award. The impunged lok adalat award passed ex parte is illegal and arbitrary and contrary to the provisions of the Legal Services Authority Act, 1987. Even the suit schedule property and lok adalat award are not tallying. The lok adalat award is passed basing on the survey report showing different survey number. In support of his contentions, he relied upon a decision of this Court in Anam Padmaja v. the Lok Adalath Bench at Nellore [ 2020(1) ALD 174 ]. 9. Sri Balaji Medamalli, learned counsel, appearing for the respondents 1 to 3 & 5 and Sri G. Sai Narayana Rao, learned counsel for the 7th respondent while reiterating the averments in the counters, submits that the writ petitioners were set ex parte in OS.No.207 of 2018 on the file of III Additional Junior Civil Judge, Kadapa and no written statement is filed. They have not taken any steps to set aside the ex parte order under Order IX Rule 9 CPC. They have not taken any steps to set aside the ex parte order under Order IX Rule 9 CPC. They are not entitled for any notice at the stage of filing joint memo seeking reference as well as before the lok Adalat. There is no discrepancy in the survey number of the scheduled property. 10. Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record we found that the Lok Adalat passed the award without issuing any notice to the writ petitioners, they being the defendants 3 & 4 in the suit and they are not parties to the joint memo before the court, which is contrary to the provisions of Section 20 of the Legal Services Authority Act. Even the lok adalat also not given any notice to the writ petitioners as they being the defendants 3 & 4 in the suit, which is violative of principles of natural justice. It is profitable to refer to Sections 19 & 20 of the Legal Services Authorities Act, 1987, which reads thus: Section 19 of the Legal Services Authorities Act, 1987 reads as under; 19. Organisation of Lok Adalats;-- (1) The State or District Authorities may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as they think fit. (2) Every Lok Adalat organised for an area shall consist of such judicial officers of the area as may be specified by the State or District Authorities organising the Lok Adalat and such other members possessing such qualifications and experience as may be prescribed by the State Government. (3) A Lok Adalat shall have jurisdiction to determine and arrive at a compromise or gettlement between the parties to a dispute in respect of any matter falling within the jurisdiction of any civil, criminal or revenue Court or any Tribunal constituted under any law for the time being in force in the area for which the Lok Adalat is organised. Section 20 of the said Act reads as under:-- 20. Section 20 of the said Act reads as under:-- 20. Cognizance of cases by Lok Adalats : (1) Where, in any suit or other proceeding which is capable of being taken cognizance of by a Lok Adalat under the provisions of this Act and pending before any Court or Tribunal, if the parties thereof make a joint application to the Court or Tribunal indicating their intention to compromise the matter or to arrive at a settlement, the presiding officer of the Court or Tribunal, as the case may be, may, instead of proceeding to effect a compromise between the parties, or to arrive at a settlement himself, and notwithstanding anything contained in any other law for the time being in force pass an order that the suit or proceeding shall stand transferred to the Lok Adalat for arriving at a compromise or settlement. (2) Notwithstanding anything contained in any other law for the time being in force the District Authority may, on receipt of an application from any person that any dispute or matter pending for a compromise or settlement needs to be determined by a Lok Adalat, refer such dispute or matter to the Lok Adalat for determination. (3) Where any suit or proceeding is transferred to a Lok Adalat under Sub-section (1) or where a reference has been made to it under Subsection (2), the Lok Adalat shall proceed, to dispose of the suit, proceeding, dispute or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any proceeding before it under this Act, with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by legal principles and the principles of natural justice, equity and fair play. (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, it shall be open to the parties to a suit or proceeding transferred from a Court or Tribunal under Sub-section (1) to continue such suit or proceeding before such Court or Tribunal, or if it is a dispute or matter referred to a Lok Adalat under Sub-section (1), any of the person may institute a proceeding in an appropriate Court. (6) Where, under Sub-section (5), the parties to a suit or proceeding intend to continue the proceeding in such suit or proceeding before the Court, or Tribunal from which it was transferred, such Court or Tribunal shall proceed to deal with such suit or proceeding from the stage at which it was before the suit or proceeding was transferred to the Lok Adalat. Now we have to consider whether the Lok Adalat has followed such a procedure contemplated in the above referred provision of law. When a matter is referred to the Lok Adalat, it has to first see whether the provision under sub section (5), Section 20 was followed before referring the matter to the Lok Adalat. Then the Lok Adalat is expected to look into the question whether all the parties to the suit are entering into settlement or compromise, because if all parties to the suit or dispute do not enter into compromise or settlement, then no Award can be made on the basis of any compromise or settlement entered into between some of the parties only to the suit. The Lok Adalat is required to see that it shall with utmost effort on or settlement between the parties, be guided by the legal principles of justice, equity and fair play. The Lok Adalat is required to first examine and see whether all parties to the litigation have entered into a compromise or settlement. If the Lok Adalat finds that some parties are entered into compromise and others are not willing for settlement, then the Lok Adalat has no jurisdiction to pass the decree, because the dispute remains uncompromised. In that event, no award can be passed by the Lok Adalat as per Sub-section (5) of Section 20 of the Act, which provides that where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, it shall be open to the parties to the suit or proceeding transferred from a Court or Tribunal under sub-section (1) to continue such suit or proceeding before such Court or Tribunal or if it is a dispute or matter referred to a Lok Adalat under Sub-section (1) any of the persons may institute a proceeding in an appropriate Court. The provisions of the Section clearly states that the jurisdiction of a Lok Adalat is to pass the award on the basis of the settlement or compromise arrived at between all the parties to the suit. Therefore, all the parties must be present before it and notice need be issued to all the parties or it has to verify if that compromise or settlement has been arrived at between all parties to the litigation. 11. Admittedly, in the present case, the suit proceedings in OS.No.207 of 2018 were referred to the Lok Adalat on a memo filed by the plaintiffs and respondents 6 & 7 herein, without any notice to the writ petitioners on the ground that they were set ex parte in the suit. In fact though appearance is made on behalf of the writ petitioners they failed to file their written statements and no notice was served on the reference memo. Even after referring the matter to the Lok Adalat also, it appears that no notices were served on the writ petitioners herein. The impugned Award dated 08.12.2018 came to be passed contrary to the provisions of Sections 19 & 20 of the Legal Services Authority Act. The learned trial Judge referred the matter to the Lok Adalat without considering the evidence on record with reference to the earlier proceedings of the suit, which is illegal and arbitrary. In Yalamarthi Narasimha Rao v. District Legal Services Authority [ 2022(1) ALT 553 (DB)] the Division Bench of this Court in a writ petition filed challenging the Award of the Lok Adalat on the ground that the same was obtained by misrepresentation without due compliance of the provisions of the Act and it was not preceded by compromise or settlement referring to the Apex Court decisions, dealing with various provisions of the Act and elaborately dealt with the procedure to be followed by the Lok Adalat before passing Award, held that if award is obtained by playing fraud on the Lok Adalat, it is liable to be set aside. The facts of the cited case are that the petitioner and the 2nd respondent are husband and wife and they were blessed with a male and female child; differences arose between them which lead to 2nd respondent leaving the matrimonial home; thereafter, the petitioner filed HMOP.No.28 of 2012 on the file of Senior Civil Judge, Mangalagiri, for restitution of conjugal rights, which was ordered on 16.06.2014; thereafter, the 2nd respondent alleged to have brought into existence a sham and collusive sale deed dated 10.02.2012, in favour of the 3rd respondent in respect of a property admeasuring Ac.1.02 cents of wet land in R.S.No.36/1 of Velpuru Village, Kankipadu Mandal, Krishna District, as if it was sold to 3rd respondent; the 2nd respondent further filed OS.No.70 of 2012 on the file of II Additional District Judge at Vijayawada showing the petitioner as 1st defendant and the 3rd respondent as 2nd defendant seeking cancellation of the registered sale deed executed by her in favour of the 3rd respondent; the petitioner therein filed written statement stating that she purchased the suit property for a valuable consideration out of her earnings and got the same registered in the name of 2nd respondent and the relationship between them was normal; the petitioner came to know that the respondents 2 & 3 therein colluded together and got the suit referred to Lok Adalat without any notice or consent of the writ petitioner; the Lok Adalat passed award on 23.07.2015; the same is challenged in the writ petition on the ground of fraud, collusion, violative of the provisions of the Act and principles of natural justice; the said writ petition was allowed holding that the award came to be passed by playing fraud on the Court contrary to the provisions of the Act. 12. Even if the parties to the suit proceedings were set ex parte at initial stage of the suit, during the pendency of the suit they are having every right to seek to set aside the ex parte order as contemplated under Order IX Rule 13 of the CPC. During the pendency of the suit, the party would be allowed to participate in the further proceedings even without filing a set aside petition during the course of arguments. During the pendency of the suit, the party would be allowed to participate in the further proceedings even without filing a set aside petition during the course of arguments. When such is the law, the trial Judge grossly erred in referring the proceedings to the Lok Adalat without any notice to the writ petitioners – defendants in the proceedings on the ground that they were set ex parte. In B. Srinatha Reddy v. District Legal Service Authority, Kadapa [ 2019(6) ALD 443 ] this Court, referring the provisions of Order IX Rule 6(1)(a) of CPC and provision of Regulation 31 of the A.P State Legal Services Authority Regulations, framed in exercise of the powers conferred under Section 29-A of the Act, observed that in a suit for partition even though one of the defendants set ex parte, grave error of law was committed by Lok Adalat Bench in passing impugned Award therein behind back of the defendant who was set ex parte without issuing notice as required under law and on coming to the conclusion that the Award came to be passed by playing fraud on the Court accordingly set aside the Award. It was also observed that even after passing any such order to hear the suit ex parte, as contemplated under Order IX Rule 6(1) (a) of CPC, the defendant is not precluded from participating in the proceedings of the suit subsequently. Therefore, in our considered view, the impugned award came to be passed without notice to the writ petitioners, who are arrayed as defendants 3 & 4 in the suit proceedings and the Award was obtained by playing fraud and in collusion between the respondents, without any notice to the writ petitioners – defendants in the suit. 13. For the aforesaid reasons, the Writ Petition is allowed. Accordingly, the Award dated 08.12.2018 in LAC.No.778 of 2018 of District Legal Services Authority, Kadapa, impugned in this writ petition is set aside. As a sequel, OS.No.207 of 2018 shall be remanded back to the III Additional Junior Civil Judge’s Court, Kadapa for disposal in accordance with law. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.