Jobin Joseph v. Uma Thomas and Jovani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 04TH DAY OF MAY 2020 / 14TH VAISAKHA, 1942** ## **OP(Crl.).No.727 OF 2017(Q)** **AGAINST THE ORDER/JUDGMENT IN MC 11/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,KAKKANAD** ## **PETITIONER/RESPONDENT:** **JOBIN JOSEPH, S/O. JOSEPH, AGED 40 YEARS, PUTHUPPARAMBIL HOUSE, THENGANA PO., CHANGANCERRY, KOTTAYAM** **BY ADVS. SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** ## **RESPONDENTS/PETITIONERS:** - **1 MRS. UMA THOMAS, W/O. JOBIN JOSEPH, AGED 34 YEARS, NOW RESIDING AT PORUVELIL HOUSE, M.G.NAGAR, THOPPIL, NEAR POPULAR CANDLE,KAKKANAD PIN-682030** - **2 JOVANI,** **AGED 7 YEARS, S/O. JOBIN JOSEPH NOW RESIDING AT PORUVELIL HOUSE, M.G.NAGAR, THOPPIL, NEAR POPULAR CANDLE, KAKKANAD PIN-682030, WITH THE FIRST RESPONDENT, REPRESENTED THROUGH THE FIRST RESPONDENT WHO IS THE MOTHER OF THE MINOR SECOND RESPONDENT** ## **R1 BY ADV. SRI.P.M.JOSHI** **SRI.SANTHOSH PETER SR.PP.** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 2802-2020, THE COURT ON 04-05-2020 DELIVERED THE FOLLOWING:** 2 O.P.(Crl) No.727 of 2017 ## **C.R.** ## **P.B.SURESH KUMAR, J.** **-----------------------------------------------** **O.P.(Criminal) No.727 of 2017** **----------------------------------------------Dated this the 4[th] day of May, 2020** ## **JUDGMENT** This is an original petition instituted under Article 227 of the Constitution challenging Exhibit P2 mediation agreement in M.C. No.11 of 2016 on the files of the Judicial First Class Magistrate Court, Kakkanad. 2. Petitioner is the first respondent in M.C. No.11 of 2016. Respondents 1 and 2 herein are the wife and son of the petitioner respectively. The respondents instituted the said proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking, among others, an order restraining the petitioner and his parents from committing any act of domestic violence. The respondents have also sought in the proceedings orders for their maintenance and for the return 3 O.P.(Crl) No.727 of 2017 of money, gold ornaments, documents etc. In the course of the proceedings, the parties were referred for mediation. After the mediation, the mediator reported to the court that mediation was successful and forwarded Exhibit P2 mediation agreement entered into between the parties and signed by their respective counsel to the court. As per Exhibit P2 mediation agreement, the petitioner has agreed to pay a sum of Rs.8,00,000/- to the first respondent and Rs.20,000/- per year to the second respondent. Provision was also made in the mediation agreement for the custody of the second respondent during his minority. In terms of the mediation agreement, the petitioner and the first respondent have also agreed to prefer an application for divorce on mutual consent. The Jurisdictional Magistrate disposed of the proceedings in terms of the mediation agreement. Exhibit R1(a) is the order passed by the Jurisdictional Magistrate in this connection. The case set out by the petitioner in the original petition is that Exhibit P2 mediation agreement is one obtained from him by the mediator under the threat that he would, otherwise, be put behind bars 4 O.P.(Crl) No.727 of 2017 along with his parents. It is also the case of the petitioner that Exhibit P2 mediation agreement was the result of a conspiracy between the first respondent, the mediator as also the counsel for both the petitioner and the first respondent. It is pleaded by the petitioner in the original petition that he never wanted to live separately from the respondents. 3. Heard the learned counsel for the petitioner as also the learned counsel for the first respondent. 4. The learned counsel for the petitioner reiterated the grounds urged in the original petition. 5. Per contra, the learned counsel for the first respondent contended that in the absence of any challenge against Exhibit R1(a) order, in terms of which M.C. No.11 of 2016 was disposed of finally by the Jurisdictional Magistrate on the basis of the mediation agreement, the original petition challenging the mediation agreement alone is not maintainable. 6. I have bestowed my attention to the arguments put forward by the learned counsel for the parties on either side. 5 O.P.(Crl) No.727 of 2017 7. Unlike an award passed in a Lok Adalat in terms of the provisions of the Legal Services Authorities Act, an agreement arrived at between the parties at the culmination of a successful mediation pursuant to a reference made in a pending proceedings, would not determine the rights of parties. A mediation agreement would determine the rights of parties only when the court which made the reference passes a judicial order accepting in part, or in full, the mediation agreement. In other words, as rightly pointed out by the learned counsel for the first respondent, in the absence of any challenge against the order passed by the court accepting the mediation agreement, a challenge against the mediation agreement alone would not lie. In that view of the matter, the original petition is not maintainable. 8. In the light of the finding in paragraph 7 above, the original petition could have been dismissed. But, I am not adopting the said course since, according to me, even if the petitioner had challenged Exhibit R1(a) order, the original petition would not be maintainable. I shall state hereunder the 6 O.P.(Crl) No.727 of 2017 reasons for the said view. 9. Exhibit R1(a) order recites that the same is one passed after hearing the parties. Since the parties were represented by the counsel in the proceedings before the Jurisdictional Magistrate, the aforesaid recital can be understood as the hearing of the respective counsel for the parties. As noted, in order to justify the conduct on the part of the counsel for the petitioner in not bringing to the notice of the court the case set out by the petitioner in the original petition that Exhibit P2 mediation agreement was one obtained from him by the mediator under threat, the petitioner alleges that Exhibit P2 mediation agreement was the result of a conspiracy in which his counsel is also a party. In other words, the case of the petitioner is that his counsel before the court below colluded with the first respondent so as to enable the first respondent to obtain Exhibit R1(a) order. All acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injuries to another, or by which an undue or unconscientious advantages 7 O.P.(Crl) No.727 of 2017 taken of another amounts to fraud. ( **Kerr** on the law of Fraud and Mistake-Seventeenth Edition). In other words, the petitioner is attributing fraud on the part of his counsel in not bringing to the notice of the court his case that Exhibit P2 mediation agreement was one obtained from him by the mediator under threat. Fraud avoids all judicial acts, and orders obtained by playing fraud on the court is a nullity. Orders obtained by playing fraud on the court has to be treated as nullity by every court, whether superior or inferior and the same can be challenged in any court even in collateral proceedings. A reference to the following passage from the decision of the Apex Court in **S.P. Chengalvaraya Naidu v. Jagannath,** (1994) 1 SCC 1, is profitable in this context: “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings”. 8 O.P.(Crl) No.727 of 2017 The proposition aforesaid has been reiterated by the Apex Court in **A.V. Papayya Sastry v. Govt. of A.P.** , (2007) 4 SCC 221 also thus: Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior. The power to recall an order founded upon fraud is an inherent power of the court [See **Deepa Gourang Murdeshwar Katre v. Principal, V.A.V. College of Arts,** (2007) 14 SCC 108]. In short, in the absence of any proceedings at the instance of the first respondent to enforce Exhibit R1(a) order, I am of the view that the remedy available to the petitioner for redressal of the grievance voiced in the original petition is to approach the very same court for recalling Exhibit R1(a) order. I take this view also for the reason that the proceedings under the Protection of 9 O.P.(Crl) No.727 of 2017 Women from Domestic Violence Act, 2005 is quasi civil in nature and the Jurisdictional Magistrate would not become functus officio once the order is passed. Yet another reason for me to take the said view is that the question whether an order is one obtained by playing fraud on the court is one to be decided after affording the parties an opportunity to adduce evidence, and the said process cannot be undertaken in a proceedings under Article 227 of the Constitution. The original petition is, therefore, dismissed as not maintainable. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs 10 O.P.(Crl) No.727 of 2017 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1:** **TRUE COPY OF THE MEDIATION AGREEMENT IN M.C.11/2016 ON THE FILES OF THE JFCM COURT, KAKKANAD** **EXHIBIT P2:** **TRUE COPY OF THE PETITION IN M.C.11/2016 ON THE FILES OF JFCM COURT, KAKKANAD** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1:** **TRUE COPY OF THE MEDIATION REPORT DATED 03.05.2017 AND MEDIATION AGREEMENT.** **EXHIBIT R1(A): TRUE COPY OF THE ORDER IN M.C.11/2016 DATED 31.05.2017** **//TRUE COPY//** **PA TO JUDGE**