Lilly and others v. Mini W/o Kolaniyil Subramanian and The Thaluk Legal Services Committee, Kodungallur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946** **WP(C) NO. 35715 OF 2015** ## **PETITIONER/S:** **1 LILLY AGED 38 YEARS, W/O.KATTIPARAMBIL JOHNSON, KAKKULISSERY VILLAGE, PAARAPPURAM DESOM, MUKUNDAPURAM THALUK, THRISSUR DISTRICT. 2 ANNIE W/O.PEREPPADAN VARGHESE, KAKKULISSERY VILLAGE, PAARAPPURAM DESOM, MUKUNDAPURAM THALUK, THRISSUR DISTRICT. 3 ROSILY W/O.VARGHESE, CHETTHITHODAN, VAINTHALA, ANNAMANADA, THRISSUR DISTRICT. 4 ALPHONSA W/O.JOSEPH, MELADOOR, MANIKKATH PARAMBIL, ANNAMANADA, THRISSUR DISTRICT.** **BY ADVS. SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN** ## **RESPONDENT/S:** - **1 MINI W/O.KOLANIYIL SUBRAMANIAN, KAKKULISSERY VILLAGE, PAARAPPURAM DESOM, MUKUNDAPURAM THALUK, THRISSUR DISTRICT, PIN - 680 734.** - **2 THE THALUK LEGAL SERVICES COMMITTEE KODUNGALLUR THALUK, P.O.KODUNGALLUR, PIN - 680 664, THRISSUR DISTRICT.** **BY ADVS. SMT.E.U.DHANYA SRI.LINDONS C.DAVIS** ## **SMT. THUSHARA JAMES (SR GP)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (C) No.35715/2015 -2- ## **J U D G M E N T** This writ petition has been filed challenging Ext.P2 award of the Lok Adalath. The contention taken is that on the first page of Ext.P2 which contains the terms of the award the parties have not affixed their signature and the second page of the award which contains a printed form which does not refer to terms of the settlement contains the signature of the parties. It is submitted that similar awards issued by the very same Lok Adalth came up for consideration before this court and in _**Sunil K.S. v. Sherly and another;** 2016 (4) KHC 397_ , this court held as follows:- _“16. Ext P7 award has two sheets. The first one is a printed form. Apart from the signatures of the members of the Lok Adalat three signatures appear on it. The identity of the persons who put the signatures is not shown in it. But it is admitted that they are the parties to the suit. The judicial officer and the advocate who were the members of the Lok Adalat have put their signatures below the signatures of the parties. It may be mentioned that even the name of the judicial officer is not correctly written. The signature of the counsel of any of the parties is not seen anywhere. No part of the settlement appears on this sheet. Even the names of all the parties to the proceedings are not mentioned but, only of one of the plaintiffs, and of the defendant; nor their addresses._ _17. The terms of the settlement allegedly made by the parties are contained in the second sheet. Apparently, this is an independent document. It is a type written one. There are several corrections made in ink. Though there are two plaintiffs, singular is used as if there is only one plaintiff. The parties have not put their signatures in this sheet, nor their counsel. It bears only the signatures of the judicial officer and the advocate who constituted the Lok Adalat. The amount which the petitioner is shown to have agreed to pay is not given in words, but only in figures._ _18. I have no doubt that this is not a solitary incident. I came across an award passed by Lok Adalat in which the parties came to an 'agreement' with regard to an amount payable by one of the parties to the other. But the amount was not shown in the award, nor the means to_ W.P (C) No.35715/2015 -3- _ascertain it. A division bench of this court in Rajagopala Rao G.K. and another v. State Police Chief and Others (2016(3) KHC 917) took a serious note of similar irregularities committed by another Lok Adalat. The division bench held:_ _“But we stumbled across a glaring illegality in the manner in which the earlier civil proceedings between the contesting parties were handled in a Lok Adalath constituted under the Legal Services Authorities Act, 1987 (in short, “the Act”). We are terribly disturbed by the fact that vagueness in the terms of settlement arrived at between the parties (that too relatives) in a Lok Adalath is the root cause for the subsequent disputes between them. Even now they are unable to harmonise their relationship and restore cordiality. If anybody blames the handlers of the Lok Adalath for prolonged agony of the parties, no one will be able to defend them for palpable reasons.”_ _The division bench has directed that Lok Adalats shall see that the awards passed “are not only legal, but also confirming to the norms prescribed for a decree with all the required details in clear and explicit terms”._ _19. About more than one century ago in Taylor v. Taylor (1875)1 Ch D 426) it was held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This rule was approved by the Privy Council in Nazir Ahmad v King.Emperor (AIR 1936 PC 253(2) and has been followed by the Supreme Court in State of Gujarat v. Santilal (AIR 1969 SC 634), Kashmir University v. Mohammed Yasin (AIR 1974 SC 238), Ramchandra Keshav Adke (Dead) by Lrs. v. Govind Joti Chavare and others (AIR 1975 SC 915) and Sampuran Singh v. State of Punjab(AIR 1982 SC 1407) and by this court in Lakshmikutty Amma v. Vijayalakshmikutty (1992 (2) KLT 341)._ _20. Regulation 17 (supra) requires that the award shall be in writing and both parties shall sign it or affix their thumb impressions in it. This is a provision similar to the one contained in Order 23 Rule 3 C.P.C, which also directs that the compromise shall be in writing and signed by the parties._ _21. In Gurpreet Singh v. Chatur Bhuj Goel (AIR 1988 SC 400) the Supreme Court held that the direction that the agreement should be reduced into writing and signed by the parties cannot be dispensed with. If this requirement is not met, the court shall proceed with the matter as if there is no compromise. The object of the provision is to prevent false and frivolous pleas that a suit has been adjusted wholly or in part by a lawful agreement or compromise, the apex court has observed. In_ W.P (C) No.35715/2015 -4- _K.Venkatachala Bhat and another v. Krishna Nayak (JT 2005(3) SC 161) the Supreme Court held that the effect of Order 23 Rule 2 C.P.C is that if the compromise is not signed by the parties, it cannot be recorded by the court._ _22. The discussion made above compels me to hold that Ext P7 is not an award passed by the Lok Adalat in the eye of law since there is no means to ascertain whether the petitioner agreed to the terms recorded in it, which is the result of violation of mandatory provisions in the relevant statutes. Consequently, Exts P8 and P9 are also invalid. The trial court shall take up the suits and proceed with their trial. But if the parties want to refer the dispute to Lok Adalat again, the court shall comply with the request._ _In the result, this Petition is allowed. Exts P7, P8 and P9 awards are declared invalid. The trial court is directed to take up the suits and proceed with their trial. But if the parties want to refer the dispute to Lok Adalat again, the court shall comply with the request.”_ The learned counsel submits that another award of the very same Lok Adalth was also set aside by this court in W.P (C) No.4140/2016, this court held as ## follows; _“4. The matter has been referred to Lok Adalat after the passing of a preliminary decree, at the final decree stage. But, in the award nothing was mentioned or whispered with respect to sharing of property or division of property either in accordance with the preliminary decree or otherwise. The preliminary decree was passed allowing 1/4th share to the plaintiff in item No.1 and 4/5th share in item No.2. This has been discarded while passing an award unilaterally by the concerned Judicial member along with a Non-judicial member (Advocate) at the time of conduct of Lok Adalat. This is really injurious to the system and it cannot be permitted to continue in future. The award passed suffers the following defects:_ _(1) The operative portion of the award (agreement/compromise) is seen separately prepared in a separate sheet under the caption 'Award', signed by the Judicial member and the Non-judicial member alone. The parties to the suit are not signatory to the award._ _(2) In the printed form, the place wherein the agreement/compromise of the party to be entered was left vacant except the printed wording “the entire liability of the defendants with regard to the said A/c shall stand discharged”._ W.P (C) No.35715/2015 -5- _(3) Nothing was mentioned, whispered or entered anywhere in the printed form with respect to the passing of award, the terms and conditions of the settlement arrived at by the parties, but the signatures of the parties were obtained only in the printed form, wherein nothing was mentioned with respect to any additional sheet annexed or separate award, if any, passed._ _(4) The award has been passed without the juncture of one of the parties to the suit, the second defendant. It is not possible to pass an award without the juncture of all parties to the suit._ _(5) In the matter of partition after the passing of preliminary decree what is left out is only passing of final decree by effecting division. Though a reference has been made at the final decree stage, the award is totally silent about what would be the fate of preliminary decree passed. No division of property either agreed or effected. It is also not clear whether the parties had altered the preliminary decree or its terms by substituting a new division of property._ _(6) In the printed form wherein the parties have signed, the award has been passed in the following lines - “The entire liability of the defendants with regard to the said A/c shall stand discharged” without knowing the dispute involved in the suit and in the final decree stage._ _(7) In effect, two contradictory awards were passed; one is signed by the parties and the other is prepared by the judicial member along with non judicial member, not signed by the parties._ _(8) After passing the award by the judicial member, the same was returned to the court for filing a joint statement presumably by the parties for which there is no provision._ _(9) The award passed was virtually defeating the preliminary decree passed by a competent court without substituting any division of property and without effecting a final decree._ _(10) The award seen passed is with respect to the shifting of a shed situated in the property, but the preliminary decree was passed for partition of immovable properties._ _(11) All basic principles governing passing of a decree in a partition suit had been overlooked while passing the award. The suit instituted and the preliminary decree passed therein by a competent court had been defeated without providing an alternative remedy by passing an extraneous award._ _(12) Prima facie it appears that the matter has been referred to Adalat without any requirement or necessity in a clandestine manner.”_ W.P (C) No.35715/2015 -6- 2. The learned counsel appearing for the 1[st] respondent would submit that the award of the Lok Adalth has already been executed. Reference is made in this regard to Ext.R1 (b) report of the Advocate Commissioner filed in O.S No.2863/2015, on the file of the Munsiff's Court, Kodungalloor. 3. The learned counsel for the petitioners, in reply, would submit that no execution petition had been filed for executing the award of the Lok Adalath. It is submitted that the report of the Advocate Commissioner in O.S No.2863/2015 suit cannot be the basis for determining that the award of the Lok Adalath had been executed. 4. Having heard the learned counsel appearing for the petitioners and the learned counsel for the 1[st] respondent, I am of the view that the petitioners are entitled to succeed. The impugned award in this case suffers from the very same defects as noted by this court in _**Sunil K.S.**_ (supra). The award is not an award in terms of the provisions contained in Regulation 17 of the National Legal Services Authority (Lok Adalaths) Regulations, 2009. The contention of the learned counsel appearing for the 1[st] respondent that the impugned award has been executed cannot be accepted on the basis of the report of the Advocate Commissioner filed in O.S No.2863/2015 on the file of the Munsiff's Court, Kodungalloor. W.P (C) No.35715/2015 -7- In the result this writ petition is allowed. Ext.P2 is quashed. O.S No.1309/2014 will stand restored to the file of the Munsiff's Court, Kodungalloor. That court shall take up the suit and proceed with the trial in accordance with the law. This will not however prevent the parties from seeking a reference to the Lok Adalath if they desire to do so. The petitioners and the 1[st] respondent shall appear before the Munsiff's Court, Kodungalloor along with a certified copy of this judgment on 20-06-2024. Sd/- **GOPINATH P. JUDGE** AMG W.P (C) No.35715/2015 -8- ## **APPENDIX OF WP(C) 35715/2015** ## **PETITIONER EXHIBITS** **EXHIBIT P1. TRUE COPY OF THE PLAINT IN OS 1309/2014 DATED 06.11.2014 OF MUNSIFF COURT, KODUNGALLUR.** **EXHIBIT P2. TRUE COPY OF THE AWARD DATED 19.06.2015 PASSED BY THE LOK ADALAT.**