Deepa M. v. Renjish Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **OP (FC).No.144 OF 2018(R)** **AGAINST THE ORDER IN E.P.NO.37/2016 IN OP NO.477/2015 OF FAMILY COURT, KOTTARAKKARA** ## **PETITIONER/RESPONDENT IN EP:** **DEEPA.M., AGED 33 YEARS, D/O KANAKA MALLIKA, NEEROTTU HILLS, AYUR PO, EDAMULAKKAL VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.K.V.ANIL KUMAR** ## **RESPONDENT/PETITIONER IN E.P:** **RENJISH KUMAR, AGED 40 YEARS, S/O BHASKARAN PILLAI, KALILAZHAKATHU VEEDU, KUZHIMATHIKKADU PO, KAREEPRA VILLAGE, KOTTARAKKARA TALUK - 691 509.** **R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20-09-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).No.144 OF 2018(R) 2 ## **JUDGMENT** ## **Harilal, J** The petitioner herein is the wife of the respondent. This original petition has been filed under Article 227 of the Constitution of India challenging Ext.P1 compromise award passed by the Lok Adalat under Section 21 of the Legal Services Authorities Act, 1987. According to the averments in this original petition, the respondent filed O.P.No.477 of 2015 before the Family Court, Kottarakkara for restitution of conjugal rights and the petitioner along with her children filed M.C.No.89/2015 before the same court for getting maintenance allowance from the respondent herein. The above numbered OP (FC).No.144 OF 2018(R) 3 two cases were referred to the Lok Adalat along with a complaint filed by the respondent, and on 12.12.2015, the entire matters in dispute were settled on certain conditions by Ext.P1 compromise award. 2. According to the petitioner, from the initial stage, after the settlement, itself the respondent failed to comply with the conditions to maintain and visit the petitioner and the children properly. As per the agreement, the respondent visited the petitioner and the children at the residence of the petitioner only two times and on both times he quarreled with the petitioner. The respondent also neglected to maintain the petitioner and the children. It is clear from such an attitude of the respondent that he has no OP (FC).No.144 OF 2018(R) 4 interest to live with the petitioner. The respondent has filed E.P.No.37/2016 in O.P.No.477/2015 before the Family court for execution of Ext.P1 award. The petitioner further contended that Ext.P1 award is vague and not an executable one. According to her, the conditions were imposed, without considering her grievance or alternate remedy, in case of non compliance from the part of the respondent. All the conditions are intended to support the respondent's demands. She agreed to the conditions, expecting a peaceful family life with him. But, from the initial stage itself, the respondent failed to maintain the petitioner or their children. Thus, it is not possible to execute the decree and thereby the decree itself has OP (FC).No.144 OF 2018(R) 5 become a nullity. 3. On the other hand, the respondent filed a counter affidavit, along with Ext.R1(a) to R1(k), denying the allegations in the original petition. According to him, the original petition itself is not maintainable as an appeal against an award passed by the Lok Adalat is barred by Section 21(2) of the Legal Services Authorities Act, 1987 r/w Section 96 of the Code of Civil Procedure. Thus, the original petition is liable to be dismissed _in limine_ . Further it is contended that the respondent filed E.P.No.37/2016 to execute Ext.P1 award, when the petitioner failed to obey the decree directing restitution of conjugal rights. But, no objection was filed challenging the maintainability of the award. Subsequently, OP (FC).No.144 OF 2018(R) 6 he has filed E.A.No.30/2018 in the said E.P for attaching the property of the petitioner, invoking the provisions under Order XXI Rule 32 of CPC, for the disobedience to Ext.P1 award. On that occasion only the petitioner filed this original petition before this Court, challenging the legality and enforceability of Ext.P1 award. Therefore, the inordinate delay in challenging the award is fatal and that apart, the petitioner is estopped from challenging the award. 4. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent. 5. The learned counsel for the petitioner advanced arguments in support of the ground raised in the memorandum of original petition. The learned OP (FC).No.144 OF 2018(R) 7 counsel for the respondent advanced arguments in support of the contentions raised in the counter affidavit and cited _**Thomas v. Thomas**_ _**Job**_ **[2005 KHC 1168]** and _**Govindan Kutty Menon K.N. v. C.D.Shaji**_ **[2011 (4) KHC 722]** to fortify his arguments against the maintainability of the original petition. 6. Admittedly, Ext.P1 is a compromise award passed under Section 21 of the Legal Services Authorities Act. As per the said award, both parties have settled the entire dispute involved in O.P.No.477/2015 filed by the respondent herein and M.C.No.89/2015 filed by the petitioner herein. Subsequently, the respondent herein filed E.P.No.37/2016 for executing the terms of Ext.P1 award on the ground that the petitioner OP (FC).No.144 OF 2018(R) 8 herein has failed to obey the terms of Ext.P1 award. It is to be borne in mind that the award was passed in the year 2015. No attempt was made to challenge the legality or enforceability of the award, immediately after passing the award. Even in Ext.P3 objection filed by the no petitioner herein against E.P.No.37/2016, contention was raised to the effect that Ext.P1 award is legally unsustainable or not an executable one. Going by Ext.P3 objection filed by the petitioner, it could be seen that the petitioner has raised a contention that the respondent has failed to obey the terms of award from the initial stage itself after passing the award. 7. The question to be considered is whether the OP (FC).No.144 OF 2018(R) 9 original petition filed under Article 227 of the Constitution of India, challenging a compromise award passed in Lok Adalath is maintainable in law. Going by Section 21 of the Legal Services Authorities Act, 1987, it is well discernible that every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court. Further, according to sub section 2 of Section 21; every award made by the Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. 8.Obviously, no appeal shall lie to any court against the award passed under Section 21 of the Legal Services Authorities Act as the same was barred OP (FC).No.144 OF 2018(R) 10 by sub-Section (2) of Section 21 of the said Act. That apart, according to Section 96 of the CPC, no appeal shall lie from a decree passed by the court with the consent of the parties. This Original Petition is also an appeal in disguise. The supervisory jurisdiction of this Court cannot be exercised to circumvent to statutory bar, under the special enactment. On the other hand, the object of the legal Services Authorities Act, would be defeated. It follows that the Original Petition filed before this Court under Article 227 of the Constitution of India, challenging the award passed by the Lok Adalath is not maintainable. The above view is approved by the decision of the Supreme Court in _**Thomas v. Thomas Job**_ [2005 KHC 1168]. The Supreme OP (FC).No.144 OF 2018(R) 11 ## Court observed thus: _“18. In Punjab National Bank v. Lakshmichand Rai reported on AIR 2000 M.P. 301, the Madhya Pradesh High Court held that "The provisions of the Act shall prevail in the matter of filing an appeal and an appeal would not lie under the provisions of S.96 C.P.C. Lok Adalat is conducted under an independent enactment and once the award is made by Lok Adalat the right of appeal shall be governed by the provisions of the Legal Services Authorities Act when it has been specifically barred under provisions of S.21(2), no appeal can be filed against the award under S.96 C.P.C." The Court further stated that "It may incidentally be further seen that even the Code of Civil Procedure does not provide for an appeal under S.96 against a consent decree. The Code of Civil Procedure also intends that once a consent decree is passed by CivilCourt finality is attached to it. Such finality cannot be permitted to be destroyed, particularly under the Legal Services Authorities Act, as it would amount to defeat the very aim and object of the Act with which it has been enacted, hence, we hold that the appeal filed is not maintainable._ OP (FC).No.144 OF 2018(R) 12 _19. The High Court of Andhra Pradesh held that, in Board of Trustees of the Port of Visakhapatnam v. Presiding Officer, Permanent, Lok Adalat-cumSecretary, District Legal Services Authority, Visakhapatnam and Anr. reported in 2000 (5) ALT 577, "The award is enforceable as a decree and it is final. In all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a Court on a regular suit by a Court on a regular trial,, however, it is as equal and on par with a decree on compromise and will have the same binding effect and conclusive just as the decree passed on the compromises cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the correctness of the award on any ground, Judicial review cannot be invoked in such awards especially on the grounds as raised in this Writ_ OP (FC).No.144 OF 2018(R) 13 _Petition.”_ 9. Coming to the merits also, we find that Ext.P1 award was passed in the year 2015, EP No. 37 of 2016 was filed in the year 2016 and this Op was filed in the year 2018. Though the petitioner herein has filed objection to the said EP, no contention was raised challenging the legality and enforceability of Ext.P1 award. The contention raised in the objection is that the respondent has not complied with the terms of settlement in Ext.P1 award. It is pertinent to note that the present OP has been filed in the year 2018 only, when the respondent has filed E.A. No. 30 of 2018 to attach the property of the petitioner on the ground that the petitioner has failed to obey the direction of the court for OP (FC).No.144 OF 2018(R) 14 restitution of conjugal right. It follows that this OP is intended to circumvent the aforesaid situation and there is no _bona fides_ on the ground raised in the memorandum of Original Petition. Thus, we find that the Original Petition itself is not maintainable and there is no reason to interfere with Ext.P1 award passed by the Lok Adalath. Hence, this OP(FC) is dismissed. ## Sd/- **K. HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/Rv OP (FC).No.144 OF 2018(R) 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE AWARD DATED 12.12.2015 OF THE LOK ADALATH IN O.P NO.477/2015 AND CONNECTED CASES OF THE FAMILY COURT, KOTTARAKARA. EXHIBIT P2 A TRUE COPY OF THE PETITION IN EP.NO.37/2016 IN O.P NO.477/2015 BEFORE THE FAMILY COURT, KOTTARAKKARA.** **EXHIBIT P3 A TRUE COPY OF THE OBJECTION IN E.P NO.37/2016 IN O.P NO.477/2015 BEFORE THE FAMILY COURT, KOTTARAKKARA.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A): A TRUE COPY OF THE E-TICKET DATED 24/12/2015 EXHIBIT R1(B): A TRUE COPY OF THE E-TICKET DATED 31/12/2015 EXHIBIT R1(C): A TRUE COPY OF THE E-TICKET DATED 08/01/2016 EXHIBIT R1(D): A TRUE COPY OF THE E-TICKET DATED 22/01/2016 EXHIBIT R1(E): A TRUE COPY OF THE E-TICKET DATED 05/02/2016 EXHIBIT R1(F): A TRUE COPY OF THE E-TICKET DATED 19/02/2016 EXHIBIT R1(G): A TRUE COPY OF THE CLEARTRIP TICKET DATED 05/03/2016 EXHIBIT R1(H): A TRUE COPY OF THE CLEARTRIP TICKET DATED 19/03/2016** OP (FC).No.144 OF 2018(R) 16 **EXHIBIT R1(I): A TRUE COPY OF THE E-TICKET DATED 24/03/2016 EXHIBIT R1(J): A TRUE COPY OF THE CLEARTRIP TICKET DATED 31/03/2016. EXHIBIT R1(K): A TRUE COPY OF THE CLEARTRIP TICKET DATED 01/04/2016 TRUE COPY P.A.TO JUDGE**