Shaiju A. and Sheena Beegum v. Kerala State Mediation and Conciliation Centre, Ashraf S/o Mohammed Kunju and Shalina Beevi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19TH DAY OF FEBRUARY 2021/30TH MAGHA,1942** ## **WP(C).No.3808 OF 2021(A)** ## **PETITIONERS:** **1 SHAIJU A., S/O.ABBASKUNJU, AGED 51 YEARS, HEERA KINARA CLASSIC, PATTOM PALACE, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695 2 SHEENA BEEGUM, AGED 49 YEARS, W/O.SHAIJU A., HEERA KINARA CLASSIC, PATTOM PALACE, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695** **BY ADVS. SRI.P.SIVARAJ SRI.I.P.VARGHESE SMT.R.SUDARSANA DEVI SMT.M.M.LAIJU NISSA SMT.M.MEHAR FARSANA** ## **RESPONDENTS:** - **1 KERALA STATE MEDIATION AND CONCILIATION CENTRE HIGH COURT OF KERALA, KOCHI - 682 031, REPRESENTED BY ITS SECRETARY.** - **2 ASHRAF, S/O.MOHAMMED KUNJU, ADIL HOME, KANNANELLOOR P.O., KOLLAM - 691 576.** - **3 SHALINA BEEVI, W/O.ASHRAF, ADIL HOME, KANNANELLOOR P.O., KOLLAM - 691 576.** **R2 BY ADV. SRI.R.KISHORE (KALLUMTHAZHAM) GOVERNMENT PLEADER SMT. DEEPA NARAYANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.3808/2021 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 19[th] day of February, 2021**_ The petitioners have filed this writ petition seeking to declare that Ext.P1 Memorandum of Settlement can be executed as a decree through a court of law. 2. Advocate Kishore R., who appeared for the 2[nd] respondent, submitted that the name of the 3[rd] respondent shown in the writ petition as wife of the 2[nd] respondent is incorrect. The learned counsel further submitted that he is authorised to appear on behalf of the wife of the 2[nd] respondent also. 3. There are certain civil disputes between the petitioners and respondents 2 and 3. Perhaps, as a consequence of the civil disputes between the petitioners and respondents 2 and 3, a criminal case happened to be filed against the 1[st] petitioner as CC No.1348/2018 before the Judicial First Class Magistrate's Court-I, Punalur. The WP(C) No.3808/2021 : 3 : petitioners approached this Court filing Crl.M.C. No.1380/2019 against the proceedings dated 23.11.2018 in CC No.1348/2018 of the JFCM-I, Punalur. The learned Single Judge, who heard the matter, referred the case for mediation. Accordingly, a settlement was arrived at between the parties, as evidenced by Ext.P1. 4. The contention of the petitioners is that in pursuance of Ext.P1 settlement and as agreed therein, the petitioners have discharged their part of the obligations and have imparted an amount of ₹1,06,00,000/- to the KSFE, Kollam. However, respondents 2 and 3 are not discharging their part of the obligations arising under Ext.P1. 5. Left with no remedy to execute Ext.P1, the petitioners preferred Crl.M.A. Nos.1 and 2 of 2020 and approached the Bench which delivered the order in Crl.M.C. No.1380/2019 seeking for appropriate directions to respondents 2 and 3 to comply with the directions in the settlement agreement. The learned Single Judge, by Ext.P5 order, held that the only option available to the petitioners to WP(C) No.3808/2021 : 4 : execute the mediated settlement is to exercise jurisdiction of the civil court. With the said observations, Crl.M.A. Nos.1 and 2 of 2020 were dismissed. 6. The petitioners are now before this Court to invoke writ jurisdiction of this Court to execute the settlement. The learned counsel for the petitioners argued that once the Court refers a dispute for mediation for settlement and a settlement is arrived at between the parties in such proceedings, the Court has a duty to see that the mediated settlement is executed and enforced. Once the Court has recorded the mediation settlement in its order/judgment, it is the bounden duty of the Court to see that the terms of the settlement are adhered to by the parties to the mediated settlement. 7. The learned counsel for the petitioners further argued that under Order XXIII Rule 3 CPC, where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance WP(C) No.3808/2021 : 5 : therewith. In the petitioners' case, the failure of this Court to pass a decree in terms of the mediated settlement cannot be a reason to deny benefit of the settlement to the writ petitioners, contended the counsel for the petitioner. 8. The learned counsel for the petitioners strongly argued that technicalities in these matters should not come in the way of execution of mediated settlement. Parties who have appeared before this Court and who have agreed for a mediated settlement, shall not be permitted to go back from the terms of the settlement. The learned counsel for the petitioners further argued that under Article 226 of the Constitution of India, this Court has ample power to see that a mediated settlement arrived at the instance of this Court is enforced treating the same as a decree of a Court. In the circumstances, this Court shall pass appropriate orders enforcing the terms of Ext.P1 mediated settlement, contended the learned counsel for the petitioners. 9. The learned counsel appearing for respondents 2 and 3, on the other hand, contended that the settlement WP(C) No.3808/2021 : 6 : arrived at through mediation was as a part of criminal proceedings. Therefore, Ext.P1 settlement will not have the characteristics of a judgment of a civil court. It is only a judgment of a civil court which can result in a decree and it is only a decree of a civil court which can be executed. The only remedy available to the petitioners is to invoke their civil remedies. This Court cannot, in exercise of the powers conferred under Article 226 of the Constitution, execute Ext.P1 settlement. 10. The learned counsel for respondents 2 and 3 relied on a judgment of the Hon'ble Delhi High Court in CRL.REF. No.1/2016 (Dayawati v. Yogesh Kumar Gosain) and contended that a settlement arrived at in the course of a criminal case cannot be enforced treating it as a decree. 11. Heard learned counsel for the petitioners and learned counsel for respondents 2 and 3. 12. It is true that there was a mediation between the parties pursuant to the orders of this Court in a proceeding under Section 482 Cr.P.C. The mediation has resulted in a WP(C) No.3808/2021 : 7 : settlement. However, the said mediated settlement cannot be made a decree of the court since the settlement was arrived at in the course of criminal proceedings. The arguments of the counsel for the petitioners based on Order XXIII Rule 3 CPC cannot be accepted. Order XXIII Rule 3 deals with compromise of a suit. Any compromise arrived between the parties other than in a suit, cannot be a subject matter of Order XXIII Rule 3. 13. Furthermore, the Bench which has recorded the compromise between the parties, has already held that the option available to the petitioners to execute the mediated settlement is by exercising jurisdiction of the civil court. 14. It is to be noted that respondents 2 and 3 have a specific case that the petitioners have not discharged their obligations under the mediated settlement. Since there are disputes between the parties as to the discharge or otherwise of the obligations arising out of the mediated settlement, it will not be proper for this Court to pass any orders to execute Ext.P1 settlement. The remedy available to the petitioners is WP(C) No.3808/2021 : 8 : to approach the civil court treating the mediated settlement as an agreement between the parties. The jurisdiction of this Court under Article 226 of the Constitution cannot be exercised in the manner desired by the petitioners. The writ petition therefore fails and it is consequently dismissed leaving open the remedy of the petitioners to get the mediated settlement executed through any other appropriate proceeding. Sd/- **N. NAGARESH, JUDGE** aks/19.02.2021 WP(C) No.3808/2021 : 9 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF MEMORANDUM OF AGREEMENT DTD. 27/02/2020 ENTERED INTO BETWEEN PETITIONERS AND RESPONDENTS 2 AND 3. EXHIBIT P2 TRUE COPY OF ORDER DTD. 03/03/2020 IN CRL.M.C.NO.1380 OF 2019 OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF THE ORDER DTD. 13/07/2020 IN I.A.NO.1 OF 2020 IN O.S.NO.280 OF 2020 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM.** **EXHIBIT P4 TRUE COPY OF THE ORDER DTD. 13/07/2020 IN E.A.NO.107 OF 2020 IN E.P.NO.69 OF 2020 OF MUNSIFF COURT, KOLLAM. EXHIBIT P5 TRUE COPY OF ORDER DTD. 22/10/2020 IN CRL.M.APPLN.NOS.1 AND 2 OF 2020 IN CRL.M.C.NO.1380 OF 2019. EXHIBIT P6 TRUE COPY OF THE INJUNCTION ORDER PASSED IN FAVOUR OF 1ST PETITIONER IN I.A.NO.30 OF 2020 IN UNNUMBERED O.S.B THE ADDITIONAL DISTRICT JUDGE'S COURT-IV, KOLLAM (VACATION COURT).** **EXHIBIT P7 TRUE COPY OF THE PROSECUTION PETITION FILED BY THE 1ST PETITIONER FOR VIOLATING EXT.P6 INJUNCTION ORDER.** **EXHIBIT P8 TRUE COPIES OF WITHDRAWAL MEMOS FILED BY THE LEARNED COUNSEL IN CRL.M.C.1380/2019 AND OP(C)NO. 64 OF 2021. EXHIBIT P9 TRUE COPY OF WITHDRAWAL MEMO IN OP(C) 64/2021.** **ncd**