Kerala High Court
Aleyamma Abraham vs Aleyamma Joy on 26 March, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26560 of 2009(L)
1. ALEYAMMA ABRAHAM,AGED 62,
... Petitioner
2. T.J.ABRAHAM, AGED 73,
3. MANOJ ABRAHAM, AGED 40, S/O.T.J.ABRAHAM
Vs
1. ALEYAMMA JOY, W/O.JOY, MADATHIL
... Respondent
For Petitioner :SRI.K.V.SADANANDA PRABHU
For Respondent :SRI.G.UNNIKRISHNAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :26/03/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.26560 OF 2009 ()
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Dated this the 26th day of March, 2010
J U D G M E N T
Petitioners seek a declaration that Ext.P1 award of the Lok Adalath passed in CRP.Nos.264/06 and 265/06 is non est and void ab initio. Consequently they also seek a declaration to dispose of CRP.Nos.264/2006 and 265/2006 on merits and in accordance with law.
2. Petitioners were the plaintiffs in O.S.No.191/91, on the file of the Munisiffs Court, Thiruvalla. The suit was filed for a declaration of their easement right over a pathway of about 2.1/2 feet width, described as schedule No.2 of the plaint and for consequential injunction. The mother of the respondent was the defendant in the suit. The suit was decreed ex-parte on 17.6.1993. After a lapse of about 7 years, being the legal representative of the defendant in the suit, who expired on 31.12.1998, the respondent filed I.A.No.3350/2000 for setting aside the ex-parte decree. That I.A was dismissed by the court on 17.12.2001. Again the respondent filed I.A.NO.991/2002, praying to set aside the ex-parte decree along with a petition to condone WPC.No.26560 /09 :2 : the delay. These two I.As were also dismissed by the Munsiff's court. Against these orders the respondent filed CMA.Nos.29 and 30 of 2003 before the Sub Court, Thiruvalla. The Sub Court allowed the appeals. Against the said judgments, the petitioners herein filed CRP.Nos.264 and 265 of 2006 before this Court. When the matter came up for hearing, on 30.1.2007, the case was posted before the Lok Adalath for settlement. It would appear that the parties were present before the Lok Adalath on few occasions. However, on 23.2.2007, the petitioners were absent. Despite their absence, the Lok Adalath recorded a settlement which was signed by the Advocate for the petitioners, the respondent and her counsel. The report of the settlement contains an endorsement of petitioners' advocate to the effect that he signed the settlement "as instructed by the petitioners." According to them, the settlement recorded by the Lok Adalath has caused grave prejudice to them. It is also their case that since they have not signed the settlement, the settlement does not satisfy the requirements laid down in the Legal Services Authorities Act, 1987. It is therefore the writ petition is filed challenging the settlement.
WPC.No.26560 /09 :3 :
3. Counter affidavit has been filed by the respondent. According to the respondent, after the cases were referred to the Lok Adalath, it was posted on various occasions when the parties were present. It is stated that after discussion with the parties and only when both the parties have agreed to the suggestions made, that Ext.P1 award was passed on 23.2.2007. It is stated that it was only on the instructions of the petitioners that their counsel signed the settlement. Respondent also says that in pursuance to the settlement, the property was surveyed by the Taluk Surveyor, that against the demarcation, the first petitioner filed a petition before the District Collector and the District Collector ordered the property to be demarcated in the presence of a Deputy Tahsildar. It is stated that against the measurement that was done, petitioners filed an appeal before the Land Revenue Commissioner, who passed Ext.R4 order. It is also her case that the petitioners accepted the award and thereafter filed I.A.Nos.1949/07 and 1967/07 in CRP.Nos.264/06 & 265/06 respectively for correcting the survey number in the award. It is also stated that the plaint in O.S.No.415/2007, a copy of which is Ext.R6, also shows that the petitioners have accepted the award of the Lok Adalath. It is contended that after all this, they filed WPC.No.26560 /09 :4 : I.A.Nos.948/08 and 920/08 in CRP.Nos.264 and 265/2006 to declare that the award is non est and not binding on the parties. It is stated that in that application, Ext.R8 order was passed by the Lok Adalath rejecting the application. She has also produced as Ext.R7, the order passed by this court in IA.No.948/08 in CRP.No.264/06. Therefore, what the respondent contends is that the award was passed with the consent of the petitioners, that their counsel had signed the award on instructions from the petitioners and that the petitioners having accepted and acted upon the award cannot now be allowed to challenge it.
4. Under Section 21 of the Legal Services Authorities Act, every award of the Lok Adalath shall be deemed to be a decree by a Civil Court. Kerala State Legal Services Authority has in exercise of their powers under Section 28A of the Legal Services Authorities Act, 1987, framed the Kerala State Legal Services Authority Regulations 1988. Regulation 33 lays down the procedure for effecting compromise or settlement at Lok Adalath. Clause(1) of the Regulation provides that every award of the Lok Adalath shall be signed by the parties to the dispute and the panel constituting the Adalath. Admittedly, Ext.P1 award has not been signed by the petitioners who are parties to the dispute WPC.No.26560 /09 :5 : and thus there is non compliance with Regulation 31. Contention of the counsel for the petitioners is that the Act provides the procedure for effecting compromise and settlement at Lok Adalath, which has not been complied with. and therefore, the award is not an award and is non est in the eye of law. They draw support from the judgment of a Division Bench of this court in Leela V. Manager, National Insurance Company Ltd.,(ILR 2008(1) Kerala 403).
5. As contended by the learned counsel for the petitioners, in the judgment relied on, the Division Bench after noticing regulation 33(1) of the Regulations, has held that since the claimant did not sign the settlement the award is non est in law and that the said award is not binding on the appellant therein. The principles laid down in this judgment applies to this case and therefore the petitioners are justified in placing reliance on this judgment.
6. The remaining question is whether the fact that the petitioners have relied on the award in the proceedings mentioned in the counter affidavit, mean that they have accepted the award and therefore are bound by the same. Learned counsel for the petitioners argued that if the award is a WPC.No.26560 /09 :6 : nullity, its invalidity could be set up whenever and wherever it is sought to be enforced and relied upon. It is true that in the judgment in Krian Singh V. Chaman Paswan (AIR 1954 SC
340), it has been held by the Apex Court that the decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon and that it could be challenged, even at the stage of execution and even in collateral proceedings. This judgment of the Apex court has been followed by a Division Bench of this court in Kunheema Umma & Ors. V. Balakrishnan Nair ( 1967 KLT 629). However, the law laid down by the Apex Court in Kiran Singh's case applies only to a case where the court which passed the decree lacks jurisdiction. As pointed out in the judgment itself, there is an essential distinction between inherent want of jurisdiction and irregular exercise of jurisdiction. In other words there is a fundamental distinction between existence of jurisdiction and exercise of jurisdiction. Where, jurisdiction has been wrongly exercised, the wronged party has to take recourse to the remedy prescribed by law for settling matters and if that course is not persued, the decision however wrong, cannot be avoided. Thus when a court in the exercise of WPC.No.26560 /09 :7 : jurisdiction it possesses, has not acted according to the mode prescribed by the statute, this obviously relates not to any want or absence of jurisdiction, but to the exercise of it in a irregular or illegal manner. The non-compliance with every rule of procedure cannot destroy the jurisdiction of the court. Such non-compliance may in some cases be only an irregularity and consequently insufficient to invalidate the proceedings. However if it is shown that another party has been prejudiced by reason of such irregularity, it may amount to an illegality, affecting the validity of the whole proceedings.
7. As held by the Apex Court in State of Punjab V. Jalour Singh & Ors. (2008(2)SCC 660), the Lok Aalath has no adjudicatory or judicial function and their function is purely conciliatory. Lok Adalath determines a reference on the basis of terms of settlement between the parties at its instance and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalath is unable to persuade the parties to arrive at a settlement or compromise, no award is made and the case will be returned to the court which made the reference. Making of the award incorporating the terms of settlement or compromise agreed by parties in the WPC.No.26560 /09 :8 : presence of Lok Adalath in the form of an executable order under signature and seal of the Lok Adalath has been held to be an administrative act. Once an award is made by the Lok Adalath in terms of the settlement arrived at between the parties, which is duly signed by the parties and annexed to the award of the Lok Adalath, it becomes final and binding on the parties to the settlement and is executable as if it is a decree of the civil court and no appeal will lie against the award, to any court.
8. It is the settled law that if a statute requires something to be done in a particular manner, it shall be done in that manner or not at all. Regulation 33(1) is mandatory and it provides that every award of the Adalath shall be signed by the parties to the dispute and the panel constituting the Lok Adalath. Result of its noncompliance is that the award is non est and is not binding on the parties. It has been so held by the Division Bench in Leela's case(supra). In this case admittedly this mandatory requirement of Regulation 33 has not been complied with. In such circumstances, I am not prepared to think that it is a mere irregularity, insufficient to invalidate the proceedings, particularly having regard to the disastrous consequences that will fall on the party complaining against the award. On the other hand it WPC.No.26560 /09 :9 : amounts to be an illegality affecting the validity of the whole proceedings. Therefore, even if it is a fact that the petitioners relied on the award in the proceedings mentioned in the counter affidavit, that will not cure the illegality that has been committed. Therefore, the contention that the petitioners have accepted the award and therefore cannot now be allowed to challenge the same does not appeal to me. In this case I also find that serious prejudice has been caused to the petitioners. According to them, as a result of the illegal award that has been passed by the Lok Adalath, they lost not only the existing pathway, but also lost 4.5 cents of land. By saying this, I should not be misunderstood as having accepted this contention, but I am only indicating that the petitioners have at least pleaded that serious prejudice has been caused to them.
Therefore, I am satisfied that Ext.P1 award is illegal and has to be set aside and I do so. Writ Petition is allowed. Necessarily, the CRP. Nos.264/06 and 265/06 will be listed for hearing and disposed of in accordance with law.
(ANTONY DOMINIC) JUDGE vi/ WPC.No.26560 /09 :10 :