Prameela v. R. Narendran Nair and K. Vasudeva Kurup

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933** **WP(C).No. 21638 of 2010(O)** **----------------------------------------** **E.P. NO.15/2009 OF MUNSIFF'S COURT, CHENGANNUR ARISING OUT OF OS.184/2007 of MUNSIFF COURT, CHENGANNUR** **....................** **PETITIONER(S):** **-----------------------** **PRAMEELA, PRANAVAM HOUSE, ORIPRUM MURI, CHERIYANAD EAST MURI, CHERIYANAD P.O., CHENGANNUR.** **BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** **RESPONDENT(S):** **-------------------------** **1. R. NARENDRAN NAIR, KOLLAVANAYIL HOUSE, CHENGANNUR P.O., 685 001.** **2. K. VASUDEVA KURUP, PUTHENPURAKKAL HOUSE, NADUVILE MURI, CHUNAKKARA P.O., CHARUMOOD, MAVELIKKARA TALUK, 685 201.** **R1 BY ADV. SRI.R.RAGHUNANDANAN, SMT.ASHA ELIZABETH MATHEW.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WP(C).No. 21638 of 2010(O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE SALE DEED DATED 28/03/2005.** **EXT.P2: COPY OF THE ORDER/AWARD.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1(a): COPY OF THE CERTIFICATE DATED 07/10/2010.** **EXT.R1(b): COPY OF THE COMPLAINT DATED 11/05/2007.** **EXT.R1(c): COPY OF THE LETTER DATED 26/05/2007.** **EXT.R1(d): COPY OF THE PLAINT IN O.S. NO.184/2007, MUNSIFF'S COURT, CHENGANNUR.** **EXT.R1(e): COPY OF THE WRITTEN STATEMENT DATED 24/10/2007.** **EXT.R1(f): COPY OF THE NOTICE DATED 17/05/2008.** **EXT.R1(g): COPY OF THE AWARD DATED 17/05/2008.** **EXT.R1(h): COPY OF THE PAPER CUTTING DATED 08/11/2009.** **EXT.R1(i): COPY OF THE PETITION DATED 29/10/2009 IN O.S. NO.184/2007, MUNSIFF'S COURT, CHENGANNUR.** **EXT.R1(j): COPY OF THE APPLICATION DATED 21/10/2010 BEFORE THE CHENGANNUR MUNSIFF'S COURT.** **EXT.R1(k): COPY OF THE OBJECTION DATED 17/07/2009.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.21638 of 2010 ==================================== Dated this the 29[th] day of September, 2011** ## **J U D G M E N T** Exhibit P2, award dated May 17, 2010 passed by the Lok Adalath organized by the Taluk Legal Services Committee, Chengannur is sought to be quashed in this proceeding. Petitioner along with her father, the 2[nd] respondent filed the suit - O.S. No.184 of 2007 in the court of learned Munsiff, Chengannur against the first respondent and the local Circle Inspector (second defendant) for a decree for permanent prohibitory injunction to restrain the first respondent from trespassing into the suit property or first respondent and second defendant compelling petitioner and second respondent to construct a compound wall. The suit was resisted by the first respondent and while the suit was pending it was referred to the Adalath for consideration. In the Adalath it is stated that there was a settlement based on which parties entered into a compromise and Ext.P2, award was passed. Exhibit P2, award was put into execution by the first respondent in E.P. No.15 of 2009. Petitioner preferred objection to the execution petition contending that the decree is not executable ## **W.P(C) No.21638 of 2010** -: 2 :- since the award is not valid in the eye of law. Petitioner has preferred this Writ Petition requesting to set aside Ext.P2, award and to quash proceedings in E.P. No.15 of 2009. 2. Learned counsel for petitioner contended that Ext.P2, award is ex facie illegal as it is not in accordance with the directions contained in Regulation No.33 of the Kerala State Legal Services Authority Regulations, 1998 (for short, “the Regulations”) and as there was no settlement or compromise involving petitioner which led to Ext.P2, award. Instead it was a case where the Adalath dictated the award and those present were made to sign the award. Learned counsel has placed reliance on the decisions in **Leela v. Manager, M/s.National Insurance Co. Ltd.** (2008 [1] KHC 564) and **State of Punjab & Another v. Jaiour Singh and Others** (2008 [2] KHC 89) in support of his contentions. 3. Learned counsel for the first respondent contended that the award is perfectly valid and enforceable though petitioner was not an eo nominee party in the compromise but she was represented by the second respondent, her father who was looking after the property and conducting the case on behalf of petitioner. It is further contended that at any rate the husband of ## **W.P(C) No.21638 of 2010** ## -: 3 :- petitioner who is a joint owner of the property has also signed the compromise leading to Ext.P2, award though he was not a party to the suit. Learned counsel contended that petitioner filed the suit on behalf of her husband and hence the husband being a party to the award and signing the compromise binds petitioner as well. It is also contended by learned counsel that it is not correct to say that petitioner was not served with notice from the Lok Adalath and was not present in the Adalath during the relevant time or that the award was dictated by the Adalath. According to the learned counsel after parties settled the case and the compromise was entered into, the panel of Lok Adalath dictated the award. 4. It is not disputed that the suit property in respect of which the alleged settlement and compromise was entered and Ext.P2, award was passed belongs to the petitioner and her husband jointly, they having acquired the property jointly. In other words petitioner and her husband are tenants in common with respect to the suit property. So far as tenants in common are concerned, there is no unity of title among them though there is unity of possession. Hence one of the tenants in common cannot represent the other or his interest in the joint ## **W.P(C) No.21638 of 2010** -: 4 :- property. 5. Admittedly suit was filed by the petitioner and second respondent, her father. It is also not disputed that second respondent and husband of petitioner have signed the compromise arising from the settlement as seen from Ext.P2, award. But admittedly petitioner has not signed the compromise or the award. Exhibit P2 does not show that counsel for petitioner has also signed the compromise. Though learned counsel for first respondent has relied on Ext.R1(f) to show that notice was issued to the petitioner from the Lok Adalath, that document is not sufficient to show that notice was either issued to or served on petitioner. 6. Now I am to decide the validity of Ext.P2, award since petitioner who is joint owner of the property and her counsel as well have not signed the compromise. But of course, it is signed by the second respondent, father of petitioner and husband of the petitioner who is the other tenant in common of the property. Being only a tenant in common, the husband of petitioner could represent her. Nor could, in the absence of any authorization the second respondent represent petitioner and sign the compromise on her behalf. **W.P(C) No.21638 of 2010** -: 5 :- 7. Now coming to the legal effect of petitioner not signing the compromise and award, reference is to be made to Regulation 33 which I have referred above which required that every award is to be signed by the parties to the dispute and the panel constituting the Lok Adalath. Referring to the said Regulation the Division Bench of this Court in **Leela v. Manager, M/s.National Insurance Co. Ltd** . (2008 [1] KHC 564) held in paragraph 2 that the Adalath cannot pass an award if it is not signed by the parties. Referring to Regulation 33(1) it is held that if the parties have not signed the award it is non-est in the eye of law. Going by the decision of the Division Bench since petitioner has not signed the compromise and Ext.P2, award it is non-est so far as she is concerned. 8. Yet another contention learned counsel for petitioner has advanced is that whatever found in Ext.P2, award is not the result of settlement but what was decided by the Lok Adalath. It is pointed out that when the matter is referred to the Lok Adalath it has no authority to adjudicate the dispute but can only settle the dispute and pass award based on the settlement and compromise. Reliance is placed on the decision in **State of Punjab & Another v. Jaiour Singh and Other** s. There, in ## **W.P(C) No.21638 of 2010** ## -: 6 :- paragraph 9 there is reference to the Lok Adalath proceeding to pass order on merit even though there was no consensus or settlement between the parties. In that decision also it was held in paragraph 12 that when award is made by the Lok Adalath on the compromise or settlement arrived by the parties (which is duly signed by the parties) it become final and binding on the parties. Learned counsel has invited my attention to paragraph 8 of the counter affidavit filed by the first respondent to show that Ext.P2, award was not result of consensus. But merely because of that statement I cannot enter a finding that there was no settlement (of course not involving petitioner) and what is found in Ext.P2 is the decision of the Lok Adalath. I am not inclined to accept that contention. 9. In the light of my finding that petitioner has not signed the compromise and Ext.P2, award the same cannot bind her. That the husband of the petitioner or the second respondent has signed the award does not make much difference so far as petitioner is concerned. Writ Petition is allowed. Exhibit P2, award and the proceeding in E.P. No.15 of 2009 are set aside. Parties are ## **W.P(C) No.21638 of 2010** **==> picture [41 x 9] intentionally omitted <==** relegated to the court of learned Munsiff who shall proceed with the suit - O.S. No.184 of 2007 from the stage at which the dispute was referred to the Lok Adalath. Parties shall appear before the learned Munsiff on 25.10.2011. Learned Munsiff is directed to expedite the trial and disposal of the suit. ## **THOMAS P. JOSEPH, JUDGE.** vsv