Madhya Pradesh High Court
Dr. A.S. Bhalla vs M/S Delhi Public School Rairu A.B. Road ... on 19 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1 WP-18713-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 19th OF JULY, 2024
WRIT PETITION No. 18713 of 2022
DR. A.S. BHALLA
Versus
M/S DELHI PUBLIC SCHOOL RAIRU A.B. ROAD GWALIOR
THROUGH ITS PRINCIPAL AND OTHERS
Appearance:
Shri Santosh Agarwal - Advocate for the petitioner.
Shri Purshottam Rai - Advocate for the petitioner.
Shri Divyakant Lahoti with Shri Kartik Lahoti and Arun Dudawat - Advocate for
R-1
Shri Yogesh Chaturvedi - Advocate for R-2
ORDER
The instant petition under Article 226 of the Constitution of India is directed against the order dated 12.11.2016 passed by National Lok Adalat in Civil Suit No.RCSB/7000036/2016, whereby a suit for recovery of sum of Rs.40,73,751/- on behalf of M/S Delhi Public School, Rairu A.B. Road, Gwalior against one Devraj Garg was disposed of on the basis of a compromise, wherein the present petitioner has acted as a Director and was instrumental in filing the said suit on behalf of the school.
2. The said order has been assailed on the ground that though the matter was settled between the parties, but neither in the application under Order 23 Rule 1 CPC for compromise nor in the order passed by the Lok Adalat there was mention of any amount of settlement or particulars of the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 2 WP-18713-2022 payment and taking advantage of such non-mentioning of the particulars in the Award, the present respondent no.2 who was defendant in said suit, in furtherance of his fraud and collusion with one Abhishek Dutt, Secretary, Rajiv Gandhi Education Society, running the DPS School, Rairu, Gwalior, disputing a part of the payment made to present respondent no.1/plaintiff on the basis of such compromise is alleging of further making balance payment to respondent no.1 and on the basis of such allegations, a criminal action has been initiated against the petitioner leading to his subjection to judicial custody for three days.
3. Hence, alleging that the Award of National Lok Adalat since had created complications and had resulted in judicial proceedings both Civil and Criminal, have stood up for leading of unjust harassment of the petitioner and since had violated his valuable fundamental rights protected under Article 21 of the Constitution of India and had led to unjust consequences due to collusion between respondent no.2 and Mr. Abhishek Dutt resulting fraud been played upon him, the quashment of said Award by Lok Adalat dated 12.11.2016, thus, had been sought.
4. With regard to delay in preferring the present petition against the Award dated 12.11.2016, it has been submitted that since the final report upon the complaint made by present respondent no.1/School against the petitioner was submitted by SHO, P.S. Lajpat Nagar, New Delhi on 16.05.2021 before M.M. Saket District Court, New Delhi and the petitioner was arrested on 27.11.2021 and, thereafter, released on bail on 30.11.2021, the fraud played with him could not be realized earlier, thus, there was no Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 3 WP-18713-2022 occasion for the petitioner to have preferred the petition at an earlier date, thus, alleging said explanation, it is contended that there is no delay caused in invoking the extraordinary supervisory jurisdiction of this Court.
5. So far as the merits of the matter was concerned, it was argued that the Award of Lok Adalat though has been conferred with the status of Decree of Civil Court and is executable as such, but it is not an adjudication upon merits as it only certifies what has been mutually settled between the parties and it has been held in series of cases that Lok Adalat must be satisfied with the bona-fides of the settlement, competence of the parties to settle the matter as well as legality of settlement before passing an Award and giving effect to such settlement and it is only after the subjective satisfaction is arrived at, that an Award could be passed, but in the case in hand there is no formal written settlement signed by the parties or there was no other proof that respondent no.2 had paid the alleged sum as was sought to be recovered by present respondent no.1/plaintiff by way of said suit.
6. It was further argued that when the terms of the settlement were ambiguous, the Lok Adalat should have enquired as to whether the settlement actually took place or not, but without getting into the said enquiry it had mechanically passed the award which does not deserves to stand.
7. It was further argued that since the Award was filed with errors apparent on the face of the record, for correction of which the Petitioner has even filed an application u/s 152 r/w 151 CPC in his personal capacity and as it has been laid down by the Apex Court in the matter Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 4 WP-18713-2022 o f State of Punjab and Anr. vs. Jalour Singh and Ors reported in (2008) 2 SCC 660, a defective Award of Lok Adalat can well be petitioned under Article 227 of the Constitution of India.
8. While referring to the matter of Gurpreet Singh vs. Chatur Bhuj Goel reported in (1998)1 SCC 270 , it was argued that during the course of hearing of a suit, if the parties enter into a compromise, the same should be reduced in writing in the form of an instrument and should be signed by both the parties and after it the Court is required to record the said settlement and pass a decree in terms of such compromise/settlement, thus, the position of law is that even the payment made before the passing of consent decree by Lok Adalat is to be evidenced by way of a duly executed instrument signed by both the parties which is clearly absent in the present case as there is even no receipt acknowledging of such payment. It was also argued that even if compromise has been made before a decree is passed, it must be evidenced in some document duly executed by the parties and without it reliance cannot be placed upon the assertion of such payment.
9. It was also argued that as per the provisions of Order 21 Rule 2 of CPC no payment under a decree made outside the court can be recognized by the executing court unless it is certified or recorded by the Court and where the payment is not so certified or recorded, the Court can even order repayment by the Judgment Debtor, thus, such a payment holds no sanctity in the eyes of law.
10. It was further argued that the Lok Adalat had over looked the settled principle of law and prudence that before according judicial seal Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 5 WP-18713-2022 to any instrument the court has to satisfy itself as to the legality, sufficiency and genuineness of the compromise, but herein case the Lok Adalat in the impugned Award did not even mention the amount that has been allegedly exchanged between the parties nor did it enumerate any particulars about the mode or time of such payment. While referring to the application for settlement moved by the parties dated 07.11.2016, it was contended that it does not even mention any amount, but the Lok Adalat chose to overlook it and did not enquire either party as to the quantum of settlement or the mode of its payment. It was, thus, argued that the Lok Adalat in wake of hurried disposal of the matter passed the impugned Award wherein it had inadvertently created a weapon for the undue harassment to the Petitioner, therefore, such an award deserves to be set aside.
11. It was further argued by the counsel that due to the faulty nature of the impugned Award, attainment of amicable settlement of disputes could be seen as a distant reality as the impugned Award had led to filing of multiple judicial proceedings both civil and criminal in-nature against the petitioner due to which he is getting unjustly harmed. It was also submitted that the FIR at P.S. Lajpat Nagar New Delhi and Final Report, therein, have come into existence only on the basis of the misinterpretation of the impugned Award, hence such award deserves to be quashed.
12. Alleging collusion between respondent no.2 and the Secretary of the Society running the School Mr. Abhishek Dutt, it was contended that they had hatched conspiracy to cause mental and physical harassment, with financial loss and even loss to reputation of the petitioner.
Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM6 WP-18713-2022
13. It was further argued that the petitioner had attended the Court and had signed the papers prepared by counsel for the School on behalf of the school, only and not in personal capacity and that too as per the decision of management as he had no personal discretion in the matter and since respondent no.2 and Mr. Abhishek Dutt had been acting in collusion with each, the instructions and brief which the petitioner was getting from Mr. Abhishek Dutt on behalf of the school management were misleading and based upon these misleading instructions and brief the Petitioner gave the statements which are now being misused against him.
14. It was also argued that as far as the statement of petitioner dated 07.11.2016 referred to in the impugned Award is concerned, the Petitioner therein had stated that the amount of settlement has been received by the plaintiff in the suit i.e. DPS Gwalior which was based upon the fact that the School Accountant Mr. R.K. Chopra had on 04.11.2016 received Rs. 26 lacs from respondent no.2 and had deposited the same in school account under instructions of Mr. Abhishek Dutt and this was the amount which respondent no.2 had agreed to pay in the informal settlement meeting held at DPS Gwalior upon which legal opinion of school Advocate was sought, the petitioner, therefore, was under the impression that settlement amount has been paid by respondent no.2 and this was also the brief which the Petitioner received from Mr. Abhishek Dutt on behalf of the 'school management, thus, the statements which the petitioner gave before the Police authorities were similarly influenced by the instructions and briefs which he had received from Mr. Abhishek Dutt as he was directly monitoring the said proceedings Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 7 WP-18713-2022 through School Advocate.
15. It was also argued that application under Order 23 Rule 1 CPC for settlement which had been referred to in the impugned Award was signed by the counsel and not by the petitioner and also since the matter had reached before the Lok Adalat there could not have been partial payment of the settlement amount as alleged by Mr. Abhishek Dutt and others.
16. It was also argued that firstly, the application was filed by School Advocate under the instructions of Mr. Abhishek Dutt as he was directly monitoring the proceedings and secondly, the said application was filed only because the school had received the settlement amount of Rs. 26 lacs in full and final satisfaction of their claim against respondent no.2 and as the impugned Award does not mention the quantum of settlement amount or its recipient, Mr. Abhishek Dutt along with his privies is trying to disclaim the receiving of it by the school, therefore, the very conduct of Mr. Abhishek Dutt clearly shows that he is trying to approbate and reprobate at the same time which is clearly against the mandate of law, thus, it was prayed that the present petition deserves to be allowed and the impugned Award is liable to be set aside.
17. Lastly, it was argued that causing material facts to be withheld from the Court also amounts to playing fraud upon the court and the innocent parties involved in the litigation, as any decree or order obtained by playing fraud upon the court is a nullity in the eyes of law. While referring to judgment of Apex Court in the matter of A.V. Papayya Sastry & Ors. vs Government of A.P. & Ors. reported in (2007) 4 SCC 221, it was argued that Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 8 WP-18713-2022 "A judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non-est in the eye of the law. Such a judgment, decree or order, by first or by final court, has to be treated as nullity by every court, superior or inferior and it can be challenged in any court, at any time, in appeal, revision, Writ or even in collateral proceedings"
18. Learned counsel for the petitioner has also placed reliance in the matter of G.K. Rajgopala Rao vs. State of Police Chief passed in W.P. No.18122/2016 dated 13.07.2016 by Division Bench of Kerala High Court and had submitted that the Division Bench in order to prevent the menace of passing awards without due care, attention and precision by Lok Adalats had formulated some guidelines and one of the said guidelines is that the persons presiding over the Lok Adalat shall see that the award passed is clear in its terms and there shall be no room for any confusion in respect of the terms and conditions in the award. They shall take care to see that on account of ill-drafting of the compromise, no litigation in future arises in respect of the matters once settled.
19. Per contra, learned counsel for the respondent no.1 had vehemently criticized the very filing of the writ petition and the arguments raised on behalf of the petitioner contending that in absence of any vitiating element a writ court should not interfere with the Award passed by Lok Adalats and from the concept of Award of Lok Adalat it is abundantly clear that its a compromise arrived at between the parties which is reduced in writing and as per the provisions of Legal Services Authorities Act, 1987 is due to be decreed and it is well settled that said consent decrees are binding on the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM
9 WP-18713-2022 parties.
20. It was further submitted that Section 21 of the Legal Service Authorities Act, 1987 equates an Award of the Lok Adalat, to a decree of Civil Court and imputes an element of finality to an Award of a compromise passed by the Lok Adalat and when the Lok Adalat disposes cases in terms of a compromise arrived at between the parties to a suit, after following principles of equity and natural justice, every such award of the Lok Adalat shall be deemed to be a decree of a Civil Court and such decree shall be final and binding upon the parties and gives the element of finality attached to an award of Lok Adalat.
21. It was further argued that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement, therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be at least of the same degree, which is to be observed while declaring an agreement as invalid and, therefore, it is imperative on the parties seeking to avoid the terms of a consent decree to establish, before the Court that the agreement on which the consent decree is based, was invalid or illegal. It was further submitted that only when the party assailing the said compromise decree before the Lok Adalat comes up with a case of fraud or misrepresentation, then the said Award passed by the Lok Adalat can be set aside.
22. Another ground which had been raised by the counsel for the Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 10 WP-18713-2022 respondent no.1 is that though a writ petition is maintainable challenging the Award passed by the Lok Adalat, but on the facts and circumstances of the case the Court has to consider whether the person assailing the said Award of Lok Adalat can approach a Court at any time or has to approach within a reasonable time.
23. It was further argued that though reasonable time is not prescribed in the rules framed under Article 229 of the Constitution of India, the words "reasonable time" has been explained in the matter of Veerayee Ammal vs Seeni Ammal reported in 2002 (1) SCC 134 . In the said judgment the Apex Court while elaborating the word "reasonable" had held that it is in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable and the dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit.
24. Further while placing reliance in the matter of State Of Madhya Pradesh & Ors vs Nandlal Jaiswal & Ors reported in 1986 (4) SCC 566 , it was argued that now it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic and if there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 11 WP-18713-2022 may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices like infringement of the rights of third parties and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice to the third parties and when the writ jurisdiction of the High Court is invoked with unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction.
25. While referring to Full Bench decision of Kerala High Court in the matter of Prasobh B. vs. New India Assurance Company Ltd. reported in 2020 SCC Online Kerala 4926 , it was further argued that it is the duty of the Court to scrutinize whether such enormous delay is to be ignored without any justification as such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility and a Court is not expected to give indulgence to such indolent persons who compete with "Kumbhkaran" or for that matter "Rip Van Winkle" and such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.
26. The aforesaid argument was advanced for bringing board the fact Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 12 WP-18713-2022 that the Award of Lok Adalat challenged by way of present petition was dated 12.11.2016 and the present petition was preferred on 09.08.2022 with an approximate delay of more than 6 years. Learned counsel had also taken this Court to an application preferred by the petitioner moved in his individual capacity under Section 152 r/w Section 151 of CPC in the main suit no.36B/16 dated 22.03.2021 seeking certain corrections in the impugned order and had submitted that though the said application was preferred in the month of March, 2021, the said petition came to be filed only in the month of August, 2022 and there is no plausible explanation for the said delay.
27. It was further argued that in para 4 of the petition the cause of action for preferring the said writ petition has been attributed to police complaint dated 16.05.2021 made by respondent no.1 and the date of his arrest and release on bail i.e. 27.11.2021 and 30.11.2021 respectively, but all these facts had already come on record in application for correction under Section 152 of CPC. Thus, the explanation for delay in preferring the present petition by any stretch of imagination be acceptable and on the ground of delay and latches also the present petition deserves to be dismissed.
28. It was also argued that the earlier application preferred on behalf of the respondent no.1 under Order 23 Rule 1 r/w Section 151 CPC dated 26.10.2016 was for withdrawal of the suit in view of the compromise which has been arrived at between the parties and the said application admittedly was filed through advocate, but later on when the matter was placed before the Lok Adalat an application under Order 23 Rule 3 r/w Section 151 CPC dated 07.11.2016 was preferred on behalf of present respondent no.1 through Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 13 WP-18713-2022 the petitioner himself and on the same day his statements were recorded, wherein in specific terms the petitioner had stated that he had filed the suit against present respondent no.2 for recovery of sum of Rs.40,73,751/- and in terms of the compromise the entire amount has been paid by respondent no.2, thus, at this juncture the petitioner cannot divulge himself from the factum of submitting an application for compromise under his signature and giving the statement. Further it is not correct on the part of the petitioner to say that he had not received any amount in terms of the compromise when the petitioner himself has submitted the application and had settled the matter without pleading any fraud or misrepresentation on account of any of the parties, thus, his contention that the after effects of the said Award is causing prejudice to him, is immaterial and cannot be said to be a ground for interference.
29. Learned counsel for the respondent had also placed reliance in the matter of Anu Pharma Private Limited and Another vs. State of Telangana and Ors. passed by Division Bench of this Court in W.P. No.18540/2020 dated 15.12.2021 and had contended that though the Award passed by Lok Adalat can be assailed in a proceeding under Article 226/227 of the Constitution of India, but can only on a very limited ground such as fraud, as fraud vitiates all proceedings, but mere allegation of fraud is not adequate. Commission of fraud must not only be pleaded specifically, but also be established by the person making the allegation by leading evidence and, therefore, in the case of fraud, time is of the essence and when the petitioner had alleged fraud leading to closure of investigation, he should have raised Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 14 WP-18713-2022 this issue at the earliest point of time and as it took about six years to challenge the Award of Lok Adalat, the same should not be interfered lightly as great deal of sanctity is attached to the Award passed by the Lok Adalat.
30. Learned counsel had further placed reliance on the contents of the application under Section 152 r/w Section 151 of CPC preferred by the petitioner dated 22.03.2021 for corrections in the impugned order dated 12.11.2016. While referring to para 15 of the said application, it has been submitted that on 19.02.2020 the petitioner has stated that he had made a complaint with the police regarding the illegal conduct of the respondent no.2 and Abhishek Dutt and when no action was taken on that complaint, he had reported the matter to the Superintendent of Police, Gwalior on 11.08.2020, but even when the petitioner had got the information about the notice issued by the Secretary of the Society to respondent no.2 for non- payment of the remaining dues he has not preferred the present petition. Thus, the very conduct of the petitioner demonstrate the fact that the petitioner competed with "kumbhkaran" or for that matter "Rip Van Winkle"
and such enormous delay cannot be ignored without any stipulation and, therefore, the present petition does not deserves any indulgence and it should be thrown out.
31. Learned counsel for the respondent no.2 had also vehemently opposed the present petition on merits and had submitted that with regard to the relief claimed in the present petition, the petitioner had preferred an application under Section 152 r/w Section 151 CPC on 22.03.2021 before the Court of Fifth Civil Judge, Class-1, District, Gwalior, which is pending Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 15 WP-18713-2022 adjudication, wherein also the petitioner has claimed the relief that some corrections be made in the award passed by National Lok Adalat and further the petitioner had even filed a Civil suit before 11th Civil Judge Class-1, Gwalior, claiming the same relief as prayed in the present petition and interestingly both the application and suit has been filed by the same counsel.
32. It was further argued that in the Civil Suit Abhishek Dutt who had been alleged to be the mastermind for alleged harassment of the petitioner had moved an application under Order 7 Rule 11 CPC for rejection of the plaint which had been dismissed by the Court vide order dated 22.03.2021 against which he had preferred a Civil Revision No.180/2022 before this Court which is still pending for adjudication, thus, looking to the peculiar facts and circumstances of the case, as the Civil Suit and the application under Section 152 r/w Section 151 CPC on the same set of facts seeking same relief are pending adjudication, filing of the present petition under Article 226 as a parallel proceedings by the same counsel is nothing but indicative of forum shopping as the petitioner could not get any reliefs in those proceedings, therefore, the present writ petition is not maintainable.
33. While referring to the judgment of Apex Court in the matter of Udyami Evam Khadi Gramodyog Welfare Sanstha and Another vs. State of Uttar Pradesh and Ors. reported in 2008 (1) SCC 560 it was contended that writ remedy is an equitable one and person approaching superior Court must come with a pair of clean hands. It not only should supress any material facts, but also should not take recourse to legal proceedings over and over Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 16 WP-18713-2022 again which amounts to abuse of process of law. In this regard reliance was also placed in the matter of Advocate General, State of Bihar vs. M/s M.P. Khair Industries reported in 1980 (3) SCC 311 , wherein the Apex Court has held that filing of repeated writ petitions amounts to criminal contempt. Further he has also placed reliance in the matter of Kamini Jaiswal vs. Union of India and Another reported in 2017 SCC Online SC 1322 , wherein the Apex Court has deprecated the practice of forum shopping while relying on its own judgment passed in the matter of Union of India vs. Cipla Ltd. reported in 2017 (5) SCC 262 .
34. In the light of the aforesaid judgment it was contended that the petitioner cannot be permitted to initiate proceedings parallelly in different forums for the same reliefs though they were clearly drafted as it amounts to praying the relief of setting aside the Award passed by National Lok Adalat in the year, 2016.
35. Learned counsel has further relied in the matter of Rajureshwar Associates vs. State of Maharashtra and Ors. reported in 2004 (6) SCC 362 and in the matter of State of Punjab and Ors. vs. Punjab Fibres Ltd and Ors . reported in 2005 (1) SCC 604 and had submitted that where the legality of order is challenged in other proceedings, the same issue cannot be adjudicated in the writ proceedings and, therefore, the present petition in light of the pendency of parallel proceedings is not maintainable, thus, deserves to be dismissed.
36. Again raising the ground of delay and latches it was submitted by the learned counsel for the respondent no.2 that the Award passed by Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 17 WP-18713-2022 National Lok Adalat is dated 12.11.2016 and the present petition has been preferred in the month of August, 2022 which is utterly time barred and since the delay and latches had not been properly explained by the petitioner as from bare perusal of para four it could be evident that the petitioner had tried to demonstrate before this Court that when the final report submitted by the Station officer, P.S Lajpat Nagar, New Delhi on 16.05.2021 and in pursuance to which when the petitioner was arrested on 22.07.2021 and was released on bail on 30.11.2021 that he had preferred present petition and, therefore, there is no delay in invoking extraordinary jurisdiction of this Court, which fact is highly incorrect as the petitioner had suppressed certain material facts including an admission on his part that in Civil Suit filed by him in para 19 he has admitted that he became aware about the cause of action in the month of October, 2018 itself when he had received the notice which he had made the cause of action for filing the suit. Thus, in these circumstances the petitioner cannot be permitted to pic and choose the facts as per his convenience and he cannot be permitted to suppress the material facts and misguide this Court to get relief from this Court.
37. While referring to the judgment of Apex Court in the matter of Chander Mohan Negi and Ors. vs. State of Himachal Pradesh and Ors . reported in 2020 (5) SCC 732 , it was submitted that the Apex Court while considering the question of delay and latches in para eleven had upheld the law of dismissal of the petition on the ground of delay and latches which is unexplained. Further in the matter of University of Delhi vs. Union of India and Ors. reported in 2020 (13) SCC 745 it had been held that the Court Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 18 WP-18713-2022 below was justified in declining to condone the delay because the accrued right to opposite party cannot be dealt with lightly and as in the present case the cause of the delay is unexplained, then on the ground of delay and latches alone, the petition deserves to be dismissed.
38. It was further argued that the grounds raised for challenging the Award passed by National Lok Adalat dated 12.11.2016 are all disputed and this Court under Article 226/227 of the Constitution of India cannot adjudicate disputed questions of facts as this Court is not hearing an appeal, on this count also the present petition has no merits, therefore, it is liable to be dismissed.
39. Learned counsel has further argued that the Award which is challenged by the petitioner passed in National Lok Adalat is as per the terms of compromise and in the light of the provisions of Legal Service Authorities Act, 1987 Section 21 (2) every Award made by the Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the said Award. The legal bar has been engrafted by the legislation for challenging the Award passed by the National Lok Adalat and in that regard order 23 Rule 3(a) of CPC also castes a bar when it enumerates that no suit shall lie to set aside a decree on the ground to the compromise on which the decree is based was not lawful. Thus, looking to the legal provisions and specific bar, the Award cannot be put to challenge or set aside on the grounds mentioned after 6 years.
40. While referring to the judgment of Apex Court in the matter of P.T. Thomas vs Thomas Job reported in AIR 2005 SC 3575 , it was argued Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 19 WP-18713-2022 that the lok adalat had passed the Award with the consent of the parties, therefore, there is no need either to re-consider the matter again and again and the Award passed by the Lok Adalat shall be final and the Award of Lok Adalt cannot be challenged by means of any regular remedies available under the law including in Article 226 of the Constitution of India and challenging the correctness of Award on any ground. Further it was argued that judicial review cannot be invoked in such Awards specially on the grounds raised in this Writ Petition. Thus, on the aforementioned grounds, it was argued that the present petition deserves to be dismissed.
41. Apart from the aforesaid grounds, learned counsel for the respondent no.2 had supported the contentions as raised by the counsel for the respondent no.1.
42. Heard the counsels for the parties and perused the record. DISCUSSION AND CONCLUSION.
43. It is no doubt true that the Award passed by the Lok Adalat can be assailed in the proceedings under Article 226/227 of the Constitution of India, but on very limited grounds such as fraud etc. It is also true that fraud vitiates all proceedings and if there is fraud, all orders and judgments of the Court would be rendered nullity. There is no dispute to the preposition of law laid down by the Apex Court that fraud and justice would never dwell together, however, the Apex Court itself has explained in the matter of Hayas Rai Makhija vs. Pushparani Jain reported in 2017 (2) SCC 797 that mere allegations of fraud is not adequate. Commission of fraud must not only be pleaded specifically, but also be established by the person making Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 20 WP-18713-2022 the allegation by leading evidence and it is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at and mere bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. Since fraud has definite meaning in law, it must be proved and not merely alleged and inferred and to constitute a fraud there must be an intent to deceive, evidence must be led and, thereafter, fraud must be proved and, therefore, in case of fraud time is the essence and when a party alleges fraud leading to closure of investigation, it ought to raise that issue at the earliest point of time. Admittedly, in the present case the Award of Lok Adalat is dated 12.11.2016 and the present petition has been moved on 09.08.2022 with a delay of approximately six years. In para 4 of the petition which pertains to delay in preferring the petition, it has been mentioned as follows:
"The Award was passed on 12.11.2016, but the final report on complaint of Respondent School, against petitioner was submitted by SHO,P.S. Lajpat Nagar New Delhi on 16.05.2021 before M.M. Saket Distt Court, New Delhi. The Petitioner was arrested on27.11.2021 and released on bail on 30.11.2021. There is no delay in invoking the extraordinary supervisory jurisdiction of this Hon'ble Court in the matter. Copy of the Complaint of Respondent is annexed herewith and marked as Annexure P-
4.Copy 'of the Final Report dated 16.05.2021 is annexed herewith and marked as Annexure P-5.Copy of Order dated 27.11.2021 is annexed herewith and marked as Annexure P-6.Copy of Bail Order dated 30.11.2021 is annexed herewith and marked asAnnexureP-7"
44. The explanation which has been afforded by the petitioner in Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 21 WP-18713-2022 preferring the present petition belatedly is that it was only when the SHO P.S. Lajpat Nagar, New Delhi on 16.05.2021 had submitted his final report before M.M. Saket District Court, New Delhi and and the petitioner in pursuance thereof was arrested on 27.11.2021 and was released on bail on 30.11.2021 that it came to the knowledge of the petitioner that a fraud has been played upon him. Except for the aforesaid explanation no reason has been assigned in not preferring the petition immediately after 30.11.2021 and further no reason has been put forward for preferring the petition after a period of 9 months, thereafter. Further in the Civil Suit preferred by the present petitioner wherein by twisting facts and playing jugglery with the words he had prayed similar relief in para 19 with regard to the cause of action which was alleged to have accrued to him in the month of October, 2018 which itself goes to show that much prior to the date which had been shown to be the cause of action for filing the present petition, the petitioner, had knowledge of the effect of the Award passed by the National Lok Adalat dated 12.11.2016 and admittedly, he had not approached this Court immediately, thereafter, within reasonable time. The full bench of the Kerala High Court in the matter of Prasobh B. vs. New India Assurance Company reported in 2020 SCC Online Kerala 4926 had dealt with the aspect as to what should be the reasonable time and had discussed as below:
"Though reasonable time is not prescribed in the rules framed under Article 229 of the Constitution of India, the words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in (2002) 1 SCC 134, at paragraph 13, is extracted hereunder:Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM
22 WP-18713-2022 "13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean: "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
20. In addition to the above, we deem it fit to consider a few decisions, on the aspect of delay, laches, equity, and reasonable time, in approaching the writ court.
(i) In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Hon'ble Supreme Court held that unreasonable delay denies to the petitioner, the discretionary extraordinary remedy of mandamus, certiorari or other relief.
(ii) In State of M.P. v. Nandlal Jaismal [(1986) 4 SCC 566], the Hon'ble Supreme Court, at paragraph 24, held as follows:
"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 23 WP-18713-2022 does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. ............Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 24 WP-18713-2022 so as to promote justice and not to defeat it."
(iii) In State of Maharastra v. Digambar reported in (1995) 4 SCC 683 : AIR 1995 SC 1991, the Hon'ble Supreme Court has considered a case where compensation for the acquired land was claimed belatedly, and, at paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 25 WP-18713-2022 person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong, [1874] 5 P.C. 221) thus:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM
26 WP-18713-2022 upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."
21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."
(iv) In Chairman, U.P. Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 : AIR 2007 SC 924, the Hon'ble Supreme Court, after considering a catena of decisions, on the aspect of delay, at paragraph 13, held as follows: "13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted."
(v) In Virender Chaudhary v. Bharat Petroleum Corporation, (2009) 1 SCC 297, the Hon'ble Apex Court held as follows: "The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or latches, indisputably, are the relevant factors.
"15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 27 WP-18713-2022 limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and latches." Some of the decisions considered by the Hon'ble Apex Court in Virender Chaudhary's case (cited supra), are reiterated as follows:
"16. In Uttaranchal Forest Development Corporation v. Jabar Singh [(2007) 2 SCC 112], the Hon'ble Apex Court held thus: "It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches."
17. In New Delhi Municipal Council v. Pan Singh [(2007) 9 SCC 278], the Hon'ble Apex Court held thus: "16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.
Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM28 WP-18713-2022 (See Govt. of W.B. v. Tarun K. Roy [(2004) 1 SCC 347], U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Karnataka Power Corpn. Ltd. v. K. Thangappan [(2006) 4 SCC 322]) 17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R. Gupta v. Union of India [(1995) 5 SCC 628])"
(vi) In S.S. Balu v. State of Kerala reported in (2009) 2 SCC 479, at paragraph 17, the Hon'ble Supreme Court held as follows:
"17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh this Court held : (SCC p. 283, para 16) "16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM
29 WP-18713-2022 long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction."
(vii) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu reported in (2014) 4 SCC 108, the Hon'ble Supreme Court, at paragraphs 16 and 17, held as follows:"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 30 WP-18713-2022 to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
45. The Division Bench of Punjab and Haryana in the matter of Mrs. Raj Kumari vs. The Presiding Judge, Lok Adalat, Samjhauta Sadan, Panchkula and Another reported in 2014 SCC Online (P and H) 3799 had also held the dismissal of the writ petition on the ground of delay and latches to be good. The relevant extract of the observation made by the Division Bench is redressed herein below:
"The question, therefore, would be as to whether there was knowledge of passing of the award to the appellant and if that was so, as to when she came to know about the same and whether she had approached this Court within a reasonable time for claiming the said relief?
As per the pleadings, although the appellant had asserted that she only came to know about the award dated 8.1.2001, when she filed a complaint before the police on 17.6.2010. However, as is apparent from the statement dated 16.11.2011 (Annexure R-1) given by the appellant in the proceedings initiated by her under Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 31 WP-18713-2022 Section 125 of Cr.P.C., seeking interim maintenance that she had come to know about the divorce in the year 2004. If that be so, the plea, as has been taken by the appellant for approaching this Court or even before the Lok Adalat on 12.9.2010, cannot be said to be within a reasonable time as the cause of action, if any, arose to her in the year 2004. The writ petition was required to and has rightly been dismissed by the learned Single Judge on delay and latches."
46. In the matter of University of Delhi vs. Union of India reported in 2020 (13) SCC 745 it has been held that by and large a liberal approach is to be taken in the matter of condonation of delay and the consideration for condonation of delay would not depend upon the status of the parties, namely, the Government or the public bodies so as to apply a different yardstick, but the ultimate consideration should be to render justice to the parties. Even in such cases the condonation of long delay should not be automatic since the accrued right or adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.
47. Thus, apart from the sufficient cause shown for condonation of delay, the adverse consequence to the opposite party may accrue is also to be kept in perspective.
48. Thus, this Court finds that inordinate delay in preferring the present writ petition has not been explained sufficiently, therefore, on this count the petition is required to be dismissed.
Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM32 WP-18713-2022
49. The aforesaid conclusion finds justification from the fact that even on merits when the case of the petitioner is analyzed, it is seen that there is no allegation of fraud made against a party to the agreement at the time of entering into the settlement rather it is the after effect of the said decree which has been assailed alleging it of affecting the petitioner as by mis- interpreting the terms of settlement he is being harassed.
50. The Apex Court in the matter of K. Srinivasappa and Ors. vs. M. Mallamma and Ors. reported in 2022 SCC Online SC 636 in para 40, 41, 42 has held as under:
"40. This Court in Ruby Sales and Services Pvt. Ltd. vs. State of Maharashtra reported in (1994) 1 SCC 531] observed that a consent decree is a creature of an agreement and is liable to be set aside on any of the grounds which will invalidate an agreement. Therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on a memo of compromise, would be atleast of the same degree, which is to be observed while declaring an agreement as invalid.
41. In Pushpa Devi Bhagat (dead) through L.R. Sadhna Rai vs. Rajinder Singh and Ors. reported in (2006) 5 SCC 566, this Court held that since no appeal would lie against a compromise decree, the only option available to a party seeking to avoid such a decree would be to challenge the consent decree before the Court that passed the same and to prove that the agreement forming the basis for the decree was invalid. It is therefore imperative that a party seeking to avoid the terms of a consent decree has to establish, before the Court that passed the same, that the agreement on which the consent decree is based, is invalid or illegal.
42. It is a settled position of law that where an allegation of fraud Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 33 WP-18713-2022 is made against a party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into the agreement. Similarly, the terms of a compromise decree, cannot be avoided, unless the allegation of fraud has been proved. In the absence of any conclusive proof as to fraud on the part of the objectors, the High Court could not have set aside the compromise decree in the instant case."
51. While referring to two other decisions of the same Court it has been held therein that where the allegation of fraud has been made against the party to an agreement, the said allegation would have to be proved strictly, in order to avoid the agreement on the ground that fraud was practiced on a party in order to induce such party to enter into agreement. But herein case there is no such fraud alleged against any one at the time of settlement. Apart from that a consent decree being a creature of an agreement is liable to be set aside only on the grounds which will invalidate the said agreement, therefore, it would follow that the level of circumspection, which a Court of law ought to exercise while setting aside a consent decree or a decree based on memo of compromise, would be atleast of the same decree, which is to be observed while declaring an agreement as invalid. But in the fact situation the petitioner has not alleged that the compromise entered was invalid or illegal rather the case of the petitioner is that the terms of the settlement were so unclear, out of focus and merky that they fail to convey a successful adjustment of the rights between the parties and reasons are plenty for mischievous mind to interpret terms and settlement in a manner suitable to his convenience and since the terms of Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 34 WP-18713-2022 settlement were not drawn up properly the Award passed there under could not be deemed to be decree of the Civil Court and, therefore, only inference that can be drawn from the facts and circumstances of the case is that the Award in question was drawn up in a per functionary manner causing great injustice to the petitioner, but herein case except for the fact that no amount was mentioned in the application as well as in the Award passed by the Lok Adalat on which the parties have compromised/settled the matter no other ground has been raised which could create any confusion in respect of the terms and conditions of the Award.
52. From the very contents of the application of compromise as well as the Award passed by the Lok Adalat and the statements of the petitioner recorded therein, this Court doesn't find that there was any room for confusion as the amount to be recovered for which suit was preferred was known to the parties and, therefore, merely non-mentioning of any amount therein would not create any doubt about its recovery. Another aspect which requires consideration and has been raised by counsel for the respondent no.2 is of forum shopping.
53. The Apex Court in the matter of Vijay Kumar Ghai and Ors. vs. State of West Bengal and Ors. reported in 2022 (7) SCC 124 had considered this aspect and has observed as under:
" 11 . Predominantly, the Indian Judiciary has time and again reiterated that forum shopping take several hues and shades but the concept of 'forum shopping' has not been rendered an exclusive definition in any Indian statute. Forum shopping as per Merriam Webster dictionary is:-Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM
35 WP-18713-2022 "The practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on determination of which court is likely to provide the most favourable outcome"
12. The Indian judiciary's observation and obiter dicta has aided in streamlining the concept of forum shopping in the Indian legal system. This Court has condemned the practice of forum shopping by litigants and termed it 6 (2019) 14 SCC 568 7 (2006) 6 SCC 736 8 (2002) 6 SCC 174 as an abuse of law and also deciphered different categories of forum shopping.
13. A two-Judge bench of this Court in Union of India & Ors. Vs. Cipla Ltd. & Anr.9 has laid down factors which lead to the practice of forum shopping or choice of forum by the litigants which are as follows:-
"148. A classic example of forum shopping is when litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia Vs. Govt. of NCT of Delhi and Others10 . The respondent-mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi High Court to the respondent- mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping.
149. In Arathi Bandi v. Bandi Jagadrakshaka Rao & Ors.11this Court noted that jurisdiction in a Court is not attracted by the operation or creation of fortuitous circumstances. In that Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 36 WP-18713-2022 case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.
150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier 9 (2017) 5 SCC 262 10 (1999) 8 SCC 525 11 (2013) 15 SCC 790 Corporation v. SNP Shipping Services Pvt. Ltd. and others12 wherein it was observed that the respondent/plaintiff had made a deliberate attempt to bring the cause of action namely a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court.
Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.
151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v.
Commissioner of Central Excise (2007) 6 SCC 769 the assesse was from Lucknow. It challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (the CESTAT) located in Delhi before the Delhi High Court. The CESTAT had jurisdiction over the States of Uttar Pradesh, NCT of Delhi and Maharashtra. The Delhi High Court did not entertain the proceedings initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee's appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 37 WP-18713-2022 could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.
155. The decisions referred to clearly lay down the principle that the court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not." 12 (1998) 5 SCC 310.
14. Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law. In spite of this Court condemning the practice of forum shopping, Respondent No. 2 filed two complaints i.e., a complaint u/s 156(3) Cr.P.C before the Tis Hazari Court, New Delhi on 06.06.2012 and a complaint which was eventually registered as FIR No. 168 u/s 406, 420, 120B IPC before PS Bowbazar, Calcutta on 28.03.2013. ie., one in Delhi and one complaint in Kolkata. The Complaint filed in Kolkata was a reproduction of the complaint filed in Delhi except with the change of place occurrence in order to create a jurisdiction.
15. A two-Judge bench of this Court in Krishna Lal Chawla & Ors. Vs. State of U.P. & Anr.13 observed that multiple complaints by the same party against the same accused in respect of the same incident is impermissible. It held that Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case."
54. In the light of the aforesaid judgment the facts of the present case Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM 38 WP-18713-2022 is analyzed and it could be seen that similar application under Section 152 r/w Section 151 CPC had been filed by the petitioner before the Court of Fifth Civil Judge Class-1, Gwalior which is pending adjudication so also has filed a Civil Suit before 11 th Civil Judge Class-1, Gwalior and in both the matters reliefs are more or less same though in the suit in specific terms the Award of Lok Adalat impugned herein had not been challenged (in fact could not had been even) but touches the prayer made herein, thus, to this Court it appears that it is a classic example of forum shopping as the petitioner had approached one Court for relief, but since had not got the desired relief had approached another Court for the same relief. Thus, on this count also the petition deserves to be dismissed. In this regard reference be also had of the case of Kamini Jaiswal (supra).
55. In the light of the aforesaid discussion, this Court does not find any reason to interfere with the Award passed by the National Lok Adalat dated 12.11.2016.
56. The petition being sans merit is hereby dismissed.
(MILIND RAMESH PHADKE) JUDGE Chandni Signature Not Verified Signed by: CHANDNI NARWARIYA Signing time: 25-Nov-24 6:26:21 PM