Andhra Pradesh High Court - Amravati
Anam Padmaja vs The Lok Adalath Bench At Nellore on 18 September, 2019
Author: Cheekati Manavendranath Roy
Bench: C.Praveen Kumar, Cheekati Manavendranath Roy
IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI
*****
Writ Petition No.2410 of 2019
Between
Anam Padmaja W/o Venkata Subba Reddy
@ Abbai Reddy, Aged about 48 years,
R/o by the side of Anam Sanjeeva Reddy,
Anam Vari Street, Near A.C. Subba Reddy Statue,
Nellore City
... Petitioner
and
1. The Lok Adalath Bench at Nellore,
Presiding Judge, IV Additional District Judge,
Nellore, SPSR Nellore District;
and 6 others
... Respondents
DATE OF JUDGMENT PRONOUNCED: 18-9-2019
HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1 Whether Reporters of Local Yes/No
newspapers may be allowed to see
the Judgments?
2 Whether the copies of judgment Yes/No
may be marked to Law
Reports/Journals
3 Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
2
HACJ & CMR, J.
wp_2410_2019 * HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY + Writ Petition No.2410 of 2019 % 18-9-2019 # Anam Padmaja W/o Venkata Subba Reddy @ Abbai Reddy, Aged about 48 years, R/o by the side of Anam Sanjeeva Reddy, Anam Vari Street, Near A.C. Subba Reddy Statue, Nellore City ... Petitioner Vs. $ 1. The Lok Adalath Bench at Nellore, Presiding Judge, IV Additional District Judge, Nellore, SPSR Nellore District;
and 6 others ... Respondents ! Counsel for the Petitioner: Sri V.Siva Prasad Reddy Counsel for Respondent No.1: Sri S.Lakshmi Narayana Reddy Counsel for Respondents 2to7: Sri T.C. Krishnan < Gist:
> Head Note:
? Cases referred:
1. AIR 1955 SC 425
2. 2006 (6) ALT 15
3. AIR 2001 KARNATAKA 407 3 HACJ & CMR, J.
wp_2410_2019 HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Writ Petition No.2410 of 2019 Order: (per Cheekati Manavendranath Roy, J.) The petitioner seeks to set aside the award dated 09-10-2018 passed by Lok Adalat in O.S.No.389 of 2014 on the file of the I Additional District Judge, Nellore, in this writ petition, on the ground that the said award was passed without giving notice to the petitioner, who is one of the defendants in the suit and as such it is illegal, violative of principles of natural justice and vitiated by fraud and misrepresentation.
2. Facts germane to dispose of this writ petition may briefly be stated as follows:
(a) The petitioner herein is the 5th defendant and the 3rd respondent herein is the plaintiff in O.S.No.389 of 2014 on the file of the I Additional District Judge, Nellore. The parties will be referred in this petition as they are arrayed in the above suit for the sake of convenience.
(b) The plaintiff filed the suit in O.S.No.389 of 2014 on the file of the I Additional District Judge, Nellore, for partition of the plaint schedule properties into four equal shares by metes and bounds and to allot 1/4th share in the suit schedule property to her. The plaintiff, the 2nd and 5th defendants are the daughters of the 1st defendant. It is alleged in the plaint that they all constitute a joint family and 4 HACJ & CMR, J.
wp_2410_2019 the plaint schedule property shown in Items 1 to 4 of the plaint schedule were purchased with the joint family funds and from the income derived from the ancestral property. The 1st defendant who is her father developed indifferent attitude towards the plaintiff and he has executed various registered settlement deeds in respect of the joint family property in favour of other defendants. Since the plaint schedule properties are the ancestral joint family properties of the 1st defendant and his daughters that the 1st defendant has no right to execute any such registered settlement deeds in respect of the said property in favour of any of the members of the joint family. So, she has filed the suit for partition of the plaint schedule properties into four equal shares and for allotment of 1/4th share to her.
(c) In response to the summonses issued by the Court in the said suit, all the defendants have made their appearance in the Court. The 1st defendant has filed his written statement denying the averments of the plaint and inter alia pleaded that all the plaint schedule properties are not joint family properties, the plaintiff and 5th defendant have no right in the said properties and the plaintiff has no share or interest in the plaint schedule properties and thereby denied the claim of the plaintiff for partition of the plaint schedule properties into four equal shares and for allotment of one share to her. The said written statement filed by the 1st defendant was adopted by the defendants 2 to 4 in the suit 5 HACJ & CMR, J.
wp_2410_2019 by filing a memo to that effect. Although the petitioner herein, who is the 5th defendant in the suit, initially made her appearance in the suit on receipt of summons from the Court, as she could not file her written statement within the time prescribed in the Code of Civil Procedure, she was set ex parte in the suit. It is alleged that when she intends to file an application to set aside the ex parte order dated 01-5-2015 passed against her that she was advised by her advocate that as it is a suit for partition that all co-sharers will get a share in the property even if she is set ex parte. Therefore, she did not file any application to set aside the said ex parte order.
(d) Thereafter, the plaintiff and other defendants in the suit have filed a joint memo before the trial Court stating that the matter was settled with the intervention of the elders and thereby prayed the Court to pass a decree in terms of the compromise filed by them in the trial Court. The signature of the petitioner herein, who is the 5th defendant in the suit, was not taken on the said memo. No share was also allotted to her as per the terms of compromise filed in the trial Court. However, based on the compromise memo filed by the plaintiff and other defendants, the trial Court referred the matter to Lok Adalat for settlement.
(e) After the suit was referred to the Lok Adalat for settlement, the District Legal Services Authority also did not issue any notice to the petitioner, who is the 5th defendant in the suit. The Lok Adalat passed an award dated 09-10-2018 6 HACJ & CMR, J.
wp_2410_2019 under Section 19 of the Legal Services Authorities Act, 1987 and disposed of the suit in terms of the compromise memo filed by the plaintiff and other defendants. No share was allotted to the petitioner, who is the 5th defendant in the suit, as per the said award. Although all the co-sharers are necessary parties to the suit for partition, the impugned award was passed without notice to the petitioner who also got an interest and share in the plaint schedule properties. The award was passed without application of mind by the District Legal Services Authority, it is, therefore vitiated by fraud played on the petitioner and on the District Legal Services Authority and due to misrepresentation of facts. The 1st respondent/District Legal Services Authority committed a grave error in passing the impugned award without issuing notice to the petitioner. Thus, the award is vitiated on account of error apparent on the face of the record. The award is also obtained in collusion with the plaintiff and other defendants. The principles of natural justice are also violated while passing the said award. The Lok Adalat also entertained the matter without appreciation of the facts. Therefore, the impugned award is a nullity. So, the petitioner prayed to set aside the said award dated 09-10-2018.
3. We have heard Sri V.Siva Prasad Reddy, learned counsel for the petitioner, Sri S.Lakshmi Narayana Reddy, learned counsel for the 1st respondent and Sri T.C. Krishnan, learned counsel for the respondents 2 to 7. 7
HACJ & CMR, J.
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4. The material facts of the writ petition are not in controversy. The relationship between the parties to the suit in O.S.No.389 of 2014 is not in dispute. Admittedly, the plaintiff, the 2nd and 5th defendants are the daughters of the 1st defendant. The plaintiff has filed the suit for partition of the plaint schedule property on the ground that the plaint schedule property is the ancestral joint family property and that she along with defendants 2 and 5, who are the daughters of the 1st defendant, are entitled to 1/4th share each in the said plaint schedule property. It is also her case that the other property in the plaint schedule is purchased by the 1st defendant with the joint family funds and with the income derived from the ancestral property. So, even according to the admitted case of the plaintiff, the petitioner herein, who is the 5th defendant in the suit, is her sister and daughter of the 1st defendant and that she is also entitled to 1/4th share in the plaint schedule properties.
5. All the defendants have made their appearance in the suit on receipt of summons from the Court. The 1st defendant filed his written statement and defendants 2 to 4 have filed a memo adopting the said written statement. As per the case of the petitioner, who is the 5th defendant in the suit, although she also made her appearance in the suit on receipt of summons from the Court that she was set ex parte on 01-5-2015 as she could not file her written statement within the stipulated time. The trial Court 8 HACJ & CMR, J.
wp_2410_2019 committed a grave error in passing order dated 01-5-2015 in setting her ex parte. Once the defendant makes his/her appearance in the suit on receipt of summons from the Court, the question of setting the defendant ex parte does not arise. It is only when the defendant fails to appear in the suit on receipt of summons from the Court, generally the Court can order that the suit be heard ex parte under Order IX, Rule 6(1)(a) CPC. If the defendant makes his appearance on receipt of summons, the question of ordering that the suit be heard ex parte does not arise as that stage is completed. If the defendant after making his appearance in the suit in response to the summons received from the Court and if he fails to file written statement within the time prescribed in the Code, the appropriate order that could be passed by the trial Court is to forfeit the right of the defendant to file his written statement under Order VIII, Rule 10 CPC. The Court cannot order at that stage that the suit be heard ex parte under Order IX, Rule 6(1)(a) CPC. Therefore, an apparent error was committed by the trial Court in setting the petitioner herein, who is the 5th defendant in the suit, ex parte for not filing the written statement within the stipulated time even though she made her appearance in the suit.
6. After the petitioner was set ex parte erroneously as noticed supra, on a memo of compromise jointly filed by the plaintiff and defendants 1 to 4 in the suit, it appears that the suit was referred to Lok Adalat for settlement by the trial 9 HACJ & CMR, J.
wp_2410_2019 Court. The signature of the petitioner who is the 5th defendant in the suit was not obtained on the said compromise memo filed in the trial Court. Her consent was also not obtained even by the trial Court for referring the matter to the Lok Adalat. The trial Court violated the procedure prescribed to refer the matter to Lok Adalat for settlement.
7. In this context, it is germane to note that proviso to Section 20(1) of the Legal Services Authorities Act, 1987, which mandates that no case shall be referred to the Lok Adalat under sub-clause (b) of Clause (1) by the Court except after giving a reasonable opportunity of being heard to the parties to the suit. The proviso to Section 20(2) also mandates that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party.
8. The law is well settled that even when a defendant is set ex parte, he will not cease to be a party to the suit and he continues to be a party to the suit for all practical purposes. A three-Judge Bench of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah1 held as follows:
"If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did not appear on the first some other hearing. Though he has a right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9, 1 AIR 1955 SC 425 10 HACJ & CMR, J.
wp_2410_2019 Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in."
9. It is further held that Rule 7 of Order IX CPC provides that if at an adjourned hearing the defendant appears and shows good cause for his "previous non-appearance", he can be heard in answer to the Suit "as if he had appeared on the day fixed for his appearance". This cannot be read to mean that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. If a party does appear on "the day to which the hearing of the Suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
10. So, the law is clear from the dictum laid down by the Apex Court in the above judgment that if defendant is set ex parte on account of his non-appearance in the suit in response to the summons received by him under Order IX, Rule 6(1)(a), he can file a petition under Order IX, Rule 7 to set aside the order that the suit be heard ex parte and he can relegate the proceedings to the initial stage and file written statement and proceed with the further proceedings of the suit. Even if he does not file a petition under Order IX, Rule 7, still he is not precluded from participating in the proceedings of the suit. But his right is restricted to 11 HACJ & CMR, J.
wp_2410_2019 participate in the proceedings in the suit from the stage when he enters in and he cannot relegate the proceedings of the suit to the initial stage. So, viewed from any angle, it is evident that the defendant, despite the fact that an order that the suit be heard ex parte, is passed, got a legal right to participate in the proceedings of the suit.
11. Even if the right of the defendant to file written statement is forfeited under Order VIII, Rule 10 on account of his failure to file written statement within the time stipulated in the Code, then also he cannot be prevented from participating in the proceedings of the suit. He is entitled to cross-examine the witnesses of the plaintiff to certain extent to point out the falsity or weakness of the case of the plaintiff. In Aketi Balrajavva v. State of Andhra Pradesh2 this Court held as follows:
"Since the right of the 3rd defendant to file written statement is forfeited, he is not entitled to lead any evidence. The right of the defendant to cross-examine the witnesses of the plaintiff is limited only to certain extent i.e. pointing out the falsity and weakness of the plaintiff's case and not more than that."
12. Therefore, from the law expounded in the above judgments, the legal position is now explicit that despite the fact that an order to hear the suit ex parte under Order IX, Rule 6(1)(a) is passed on account of non-appearance of the defendant in the suit on receipt of summons from the Court or despite the fact that the order forfeiting the right of the 2 2006 (6) ALT 15 12 HACJ & CMR, J.
wp_2410_2019 defendant to file written statement under Order VIII, Rule 10 is passed for his failure to file written statement within the stipulated time, he will not cease to be a party to the suit and he continues to be a party to the suit for all practical purposes. Therefore, it is incumbent on the trial Court to issue notice to the petitioner also, who is the 5th defendant in the suit to seek her consent for referring the matter to the Lok Adalat as contemplated under the two provisos to Clause (1) of Section 20 and Clause (2) of Section 20 of the Legal Services Authorities Act, 1987. So, the reference of the suit by the trial Court to the Lok Adalat for settlement without hearing the petitioner, who is the 5th defendant in the suit, a co-sharer is bad in law and it is in contravention of the procedural prescriptions of law under Sections 19 and 20 of the Act.
13. Now, it is significant to note that the Lok Adalat also did not issue any notice to the petitioner, who is the 5th defendant in the suit, before entertaining the said compromise and passing the award in terms of the compromise arrived at by the plaintiff and defendants 1 to 4. The main grievance of the petitioner in this writ petition is that no notice was given to her by the Lok Adalat also before passing the award and the award was passed behind her back without her consent and as such it is vitiated by fraud, misrepresentation of facts and violation of principles of natural justice. We may add that apart from the above, the 13 HACJ & CMR, J.
wp_2410_2019 impugned award is also vitiated on account of non-compliance with the procedural prescriptions of the Legal Services Authorities Act, 1987 and the Regulations framed thereunder. In this context, it is relevant to consider Section 19(5), sub-clauses (3) and (4) of Section 20 of the Act and Regulation 31 of the A.P. State Legal Services Authority Regulations, 1996.
14. Clause (5) of Section 19 envisages that a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before any Court for which Lok Adalat is organised. Clause (3) of Section 20 also envisages that where any case is referred to a Lok Adalat, it shall proceed to dispose of the case and arrive at a compromise/ settlement between the parties. The expression used in Clause (5) of Section 19 "parties to dispute" and the words used in Clause (3) of Section 20 "between the parties" are significant to note in the present context. It clearly indicates that Lok Adalat shall make an endeavour to see all parties to the dispute are before it to arrive at any compromise or settlement. Since no notice was issued to the petitioner, who is the 5th defendant in the suit, who is admittedly a co-sharer as per the case of the plaintiff, a fundamental error was committed by the Lok Adalat in entertaining the said matter relating to a suit for partition for settlement and passing 14 HACJ & CMR, J.
wp_2410_2019 award without issuing notice to the petitioner who is the 5th defendant in the suit.
15. Sub-clause (4) of Section 20 imposes a duty on the Lok Adalat stating that while determining any reference before it under the Act, the Lok Adalat shall be guided by the principles of justice, equity, fair play and other legal principles. Therefore, it is now clear from Clause (4) of Section 20 that the Lok Adalat has to follow all the legal principles while determining the reference made to it to arrive at a compromise or settlement between the parties to the suit.
16. Regulation 31 of the A.P. State Legal Services Authority Regulations, 1996 framed in exercise of the powers conferred under Section 29A of the Legal Services Authorities Act, 1987 also contemplates that the Secretary of the District Legal Services Authority shall inform every litigant whose case is referred to the Lok Adalat, well in time to afford them an opportunity to appear themselves for the Lok Adalat. Therefore, a combined reading of Sections 19, 20 of the Act and Regulation 31 of the Regulations, makes it clear that notice is to be given to all parties to the suit before passing the award. The term "litigant" used in Regulation 31 means the party to the suit.
17. As already discussed supra with reference to decided case law, simply because the 5th defendant, who is the petitioner herein, was set ex parte by the trial Court, though erroneously as noticed supra, the Lok Adalat cannot 15 HACJ & CMR, J.
wp_2410_2019 dispense with notice to her. Despite the order setting the defendant ex parte, she continues to be a party to the suit for all practical purposes. So, she is entitled to notice before settlement in Lok Adalat. Taking any such view by the Lok Adalat that since the 5th defendant was set ex parte in the suit that there is no need to give notice to her before entertaining the compromise or settlement in the Lok Adalat and particularly in a suit for partition would be an erroneous view and it runs contrary to the settled law. In the instant case, the Lok Adalat committed a grave error in not issuing notice to the 5th defendant on the ground that she was already set ex parte in the suit.
18. The Lok Adalat before determining the settlement of the dispute shall ensure that all the parties in the suit are before it at the time of passing the award and that all of them have given consent for the settlement arrived at by the parties to the suit. It cannot abrogate its duty to see that all parties are before it for the purpose of passing an award in terms of the compromise. Regulation 31 mandates that the Secretary of District Legal Services Authority who is convening and organising the Lok Adalat to issue notice to every litigant which means every party to the suit before entertaining the compromise and before passing an award to that effect. Since it is a suit for partition, as all the defendants being co-sharers are entitled to a share in the plaint schedule property, the Lok Adalats must be much more careful to see that all parties to 16 HACJ & CMR, J.
wp_2410_2019 the suit who are co-sharers in the property whose presence is essential for settlement of dispute are before it. Surprisingly the Lok Adalat did not follow the said principles of law even though Clause (4) of Section 20 mandates that it should follow the principles of law while determining the compromise or the settlement in the suit. It passed the impugned award without giving notice to the 5th defendant and in her absence and behind her back and thereby violated the principles of natural justice. It shows complete non-application of mind to the dispute involved in the suit and the Lok Adalat has mechanically and casually passed the impugned award in utter violation of the procedure contemplated under the Legal Services Authorities Act and in gross violation of principles of natural justice. This has resulted in causing grave injustice to the petitioner, who is the 5th defendant in the suit.
19. The said award which was passed without issuing notice to the 5th defendant will have far reaching consequences. The terms of the compromise, on the basis of which the impugned award was passed clearly show that no share was allotted to the petitioner herein, who is the 5th defendant in the suit. When the plaint averments itself show that she being a daughter of the 1st defendant along with the plaintiff and the 3rd defendant and that she is entitled to 1/4th share in the plaint schedule property, the very fact that no share was allotted to her in the award passed by the Lok Adalat is a positive proof to show that 17 HACJ & CMR, J.
wp_2410_2019 an injustice was caused to her as the said award was passed behind her back without notice to her. So when the award under challenge suffers from such serious legal flaw and infirmities and vitiated on account of non-issuance of notice to the petitioner before passing the said award and on account of violation of principles of natural justice, the same is clearly unsustainable under law. It is to be held that the said award is not valid under law.
20. The Karnataka High Court had an occasion to deal with similar issue in Kishan Rao v. Bidar District Legal Services Authority3, wherein it is held as follows:
"The award cannot be passed unless and until all parties to the suit have entered into compromise/settlement. The decree passed by Lok Adalat in respect of parties who have not entered into compromise is null and void. Further, when notice was not given to said persons when suit was transferred to Lok Adalat, parties are not bound by decree of Lok Adalat and they can make an application to set aside the decree."
21. As per the settled law in view of Section 21 of the Act which says that no appeal lies against the award of the Lok Adalat and it is final, it is held a suit is not maintainable to question the award passed in the Lok Adalat.
22. So the only remedy available to the party is to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to question the said legal validity of the award.
3 AIR 2001 KARNATAKA 407 18 HACJ & CMR, J.
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23. In fine, the impugned award dated 09-10-2018 passed by Lok Adalat in O.S.No.389 of 2014 on the file of the I Additional District Judge, Nellore, is vitiated by fraud and non-compliance with the procedural prescriptions of law and for gross violation of principles of natural justice and it is illegal and unsustainable under law.
24. In the result, the writ petition is allowed setting aside the award dated 09-10-2018 passed in O.S.No.389 of 2014 on the file of the I Additional District Judge, Nellore. As a sequel, the suit shall be sent back to the trial Court as contemplated under sub-clauses (5) to (7) of Section 20 of the Act for disposal according to law. It is left open to the parties to work out their remedies according to law in the suit. Pending applications, if any, shall stand closed. No costs.
__________________________ C.PRAVEEN KUMAR, ACJ _________________________________________ CHEEKATI MANAVENDRANATH ROY, J.
18th September, 2019.
Note:-
L.R. Copy to be marked.
(B/o) Ak 19 HACJ & CMR, J.
wp_2410_2019 HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Writ Petition No.2410 2019 (per CMR, J.) 18th September, 2019.
(Ak)