Kerala High Court
Anil Kumar vs P.R. Aniyan on 1 October, 2021
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1086/2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
WA NO. 1086 OF 2021
JUDGMENT DATED 09.04.2021 IN WP(C) 27467/2020 OF HIGH COURT OF KERALA,
APPELLANTS/RESPONDENTS 2 TO 3 IN THE W.P.(C):
1 ANIL KUMAR,
AGED 63 YEARS
S/O. RAGHAVAN PILLAI, PEKKAVUMKAL VEEDU, AYROOR VILLAGE,
RANNI TALUK, PATHANAMTHITTA DISTRICT-689 612.
2 KRISHNAKUMARI,
AGED 62 YEARS
W/O. ANIL KUMAR, PEKKAVUMKAL VEEDU, AYROOR VILLAGE, RANNI
TALUK, PATHANAMTHITTA DISTRICT-689 612.
BY ADVS.
P.B.KRISHNAN
VISHAK.K.JOHNSON
S.NITHIN (ANCHAL)
RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 4 IN THE W.P.(C):
1 P.R. ANIYAN
AGED 72 YEARS
ARCHANA VEEDU, AYROOR VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT, NOW RESIDING AT PEEDIKAYIL BUILDING, FLAT NO.4, TOP
OF FEDERAL BANK, MANAKALA P.O., ADOOR, PIN-691 551.
2 DISTRICT LEGAL SERVICES AUTHORITY,
PATHANAMTHITTA, REPRESENTED BY ITS SECRETARY, DISTRICT
COURT COMPLEX, MINI CIVIL STATION, PATHANAMTHITTA-689 645.
3 ANOOJA ANIYAN,
AGED 41 YEARS
D/O. P.R.ANIYAN, ARCHANA VEEDU, AYROOR VILLAGE, RANNI TALUK,
PATHANAMTHITTA DISTRICT, NOW RESIDING AT PEEDIKAYIL
W.A. No. 1086/2021 :2:
BUILDING, FLAT NO.4, TOP OF FEDERAL BANK, MANAKALA P.O.,
ADOOR, PIN-691 551
BY ADVS.
R1 BY SRI. JACOB P.ALEX
JOSEPH P.ALEX
MANU SANKAR P.
R2 BY SRI.K.P.HARISH, SR. GOVERNMENT PLEADER,
R4 BY SRI.RINNY STEPHEN CHAMAPARAMPIL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1086/2021 :3:
Dated this the 1ST day of October, 2021.
JUDGMENT
SHAJI P. CHALY The appellants, who are respondent Nos. 2 and 3 in W.P.(C) No. 27467 of 2020, has preferred this appeal challenging the judgment dated 09.04.2021, whereby the learned single Judge taking into account the provisions of the Kerala Legal Services Authorities Act 1987 ('Act, 1987' for short) and Regulations, 1998 thereto and also relying upon the judgment of this Court in Mary Gomas v. Vaitus [2020 (6) KLT 568] has allowed the writ petition holding that Ext. P2 award passed by the Lok Adalat organised by the District Legal Service Authority, Pathanamthitta/Taluk Legal Service Committee, Kozhencherry in PLP No. 1265/2020 dated 19.11.2020 is non est in law, insofar as the petitioner in the writ petition is concerned i.e., the first respondent in the appeal and further held that the said award cannot be enforced against the writ petitioner, since the writ petitioner has not subscribed his signature to the award proceedings of the Legal Services Authority.
2. The case projected by the writ petitioner was that he was the first petitioner in PLP No. 1265/2020 before the authority, which was filed along with his daughter Anooja Aniyan--4 th respondent in the writ petition (3rd respondent in the appeal); and that the appellants were W.A. No. 1086/2021 :4: objecting to the plying of vehicles to the house of the writ petitioner through a way that is in existence for the last 30 years. Therefore, Ext. P1 application was submitted before the Legal Services Authority to find an amicable solution for the problem by establishing a right of way. It was also pointed out in the application that the writ petitioner, his wife and their minor daughter are required to make frequent visits to hospitals.
3. Anyhow, the application was finally disposed of by the Legal Services Authority as per Ext. P2 settlement award with the signatures of the appellants and the 3rd respondent--daughter of the writ petitioner, after omitting the name of the writ petitioner and without his signature. It was in the said background that the writ petitioner contended that Ext. P2 award is void, illegal and non est in law against him, and that the award is causing serious prejudice to the writ petitioner, who is an aged, sickly and weak person.
4. The appellants/ respondents 2 and 3 in the writ petition have filed a counter affidavit in the writ petition basically contending that Ext. P2 award is an agreed one, which was struck voluntarily by and between the appellants and Anooja, 3rd respondent in the appeal, who was representing the writ petitioner, who claimed to be advanced in age and ailing, and therefore, not capable of appearing in person. Therefore, according to the appellants, any agreement entered into W.A. No. 1086/2021 :5: between the respondent daughter, who represented the writ petitioner before the Legal Service Authority and the appellants would bind the writ petitioner also. In that background, it was also contended that Ext. P2, which on the face of it, is seen to be the product of an agreement between the 3rd respondent and the appellants, and therefore, the writ petitioner could not have retracted from the said agreement and the award, since the writ petitioner was admittedly represented in the proceedings before the Legal Services Authority by the 3rd respondent daughter. It is also contended that in Ext. P1 application filed by the writ petitioner and his daughter, it is stated that, since the writ petitioner is not in a position to travel, he has entrusted all matters concerning the aspects pointed out in the application to his daughter Anooja Aniyan.
5. Smt. Anooja Aniyan has also filed a counter affidavit in the writ petition basically submitting that she has a differently abled child aged 8 years, who requires frequent medical attention due to recurring fits attack and further that her aged parents also required frequent medical attention and therefore, a motorable road for vehicle access to the residential house and property, which is owned by the writ petitioner was absolutely essential and if any obstruction is created, it would cause much hardship to her as well as the other residents of the house as specified above. It was further stated that Ext. P2 award is W.A. No. 1086/2021 :6: passed with the consent of herself as well as the appellants, who alone are parties to the compromise agreement; that the writ petitioner is the title holder of the property; that she is also a beneficiary of the way, which was being used by the family from her childhood; that she has a right of residence in the house in the property owned by her father; that she is facing severe financial stringency and find it difficult even to meet the medical expenses towards the treatment of the aged parents, differently abled daughter; and it was, accordingly, that she has agreed for the compromise arrived in the award. According to her, the attempt of the appellants is to disturb the right of way provided to her in terms of the settlement award.
6. We have heard, Sri. P. B Krishnan, learned Counsel for the appellants, Sri. Jacob P. Alex for the first respondent/writ petitioner and Smt.Asha Elizabeth Mathew for the 3rd respondent, and perused the pleadings and materials on record.
7. Before considering the contentions put forth by the appellants, it is important to point out that the appellants have filed O.S.No. 29 of 2021 before the Munsiffs Court Ranni seeking permanent prohibitory injunction restraining the writ petitioner and her daughter, the 3rd respondent Anooja Aniyan and the men under them from carving out a pathway through item No.1 property or from plying vehicles through any portion of the same, except item No.2 in the W.A. No. 1086/2021 :7: schedule, which is a pathway having an average width of 5 feet that reaches the property of the writ petitioner.
8. It is also equally important to note that the writ petitioner has also filed O.S. No. 27 of 2021 against the appellants seeking a permanent prohibitory injunction restraining them from obstructing the plaintiff's user of the plaint item No.3, which is described to be a way having a width of 14 feet and a length of about 60 meters lying within the aforesaid boundaries and the writ petitioner has also sought for an interim injunction.
9. The filing of the suit by the rival parties, according to us, was not brought to the notice of the learned single Judge. However, the appellants, in the appeal, has stated that the writ petitioner has filed the suit before the Munsiff's Court, Ranni; but, at the same time he suppressed the fact that the appellants have also filed a suit before the Munsiff's Court, Ranni. Anyhow, it was submitted, during the course of arguments by the learned counsel for the writ petitioner, that the said aspect was brought to the notice of the learned single Judge during the course of arguments. However, we do not find any reference in the judgment of the learned single Judge.
10. Anyhow, the sole question that was weighed with the learned single Judge to arrive at the conclusion that Ext. P2 award would not bind the writ petitioner for the reason that by virtue of W.A. No. 1086/2021 :8: Regulation 33(1) of the Kerala Legal Services Authority Regulations, 1998, the award has to be signed by all the parties to the complaint. In order to arrive at the said conclusion, the learned single Judge has relied upon the judgment in Mary Gomas (supra), wherein it was found that the award in question in the said writ petition was signed only by the plaintiffs and the second defendant in the suit and the absence of signatures of other defendants in the suit shows that there was a settlement only by and between the plaintiffs and the second defendant and it was on the basis of the same, Ext. P1 award was passed by the Lok Adalat. It was also found thereunder that the court below while passing the order, has made a literal interpretation of Section 21(2) of the Legal Services Authorities Act, 1987 ('Act, 1987') to find that award was binding on "all the parties to the dispute" and it was also binding on those parties to the suit who have not even signed the award.
11. Therefore, it was held that if the expression "all the parties to the dispute" in Section 21(2) of the Act, 1987 is given a literal interpretation, absurd results may sometimes follow, and if a proper interpretation is provided to Section 21(2) of Act, 1987, it can never be the intention of the Legislature in using the expression "all the parties to the dispute" and therefore, the award passed by the Lok Adalat, on the basis of the settlement between the plaintiffs and one of W.A. No. 1086/2021 :9: the several defendants, shall certainly be deemed to be a decree by virtue of Section 21(1) of the Act. But, such an award, which is deemed to be a decree, conclusively determines the rights of the plaintiff only as against the 2 nd defendant, who has signed it. Such an award would not completely dispose of the suit.
12. We have gone through the relevant provisions of the Act, 1987 as well as the Regulation, 1998 and we find that the finding entered by the learned single Judge on the basis of the provisions of law and the proposition of law laid down in Mary Gomas is in accordance with law. Therefore, we do not find any reason to interfere with the judgment of the learned single Judge for the basic and vital aspect that the learned single Judge has exercised the discretionary jurisdiction in accordance with law.
13. The paramount contention advanced by the learned counsel for the appellants is that the appellants were not interested in entering into a settlement partially and the appellants were under the impression that the 3rd respondent was representing the writ petitioner also. It is an admitted fact that in Ext. P4 application filed before the Legal Services Authority, the writ petitioner and the 3 rd respondent appears in the cause title as petitioners and both of them have signed it. However, in the award passed by the Legal Services Authority, apart from the appellants, only the 3 rd respondent has signed the W.A. No. 1086/2021 : 10 : same.
14. In order to have a clear and unmistakable appreciation of the nature of the award passed by the Legal Services Authority, we are extracting the same:
"Before the Lok Adalat Held at PTA, DLSA Name of court: : legal Service Case No. : PLP NO. 1265/2020 (Organized by District Legal Service authority, Pathanamthitta/ Taluk legal Service Committee, Kozhencherry under Section 19, of legal service authorities act 1987 (Central Act) Petitioner/Plaintiff/Compliant: Anuja Aniyan Archana Veedu Ayroor, Pathanamthitta Defendant/Respondent : 1) Anil Kumar
2) Krishnakumari Pekkavungal Veedu Ayroor, Pathanamthitta No. of proceedings of the District Legal Service Authority/Taluk legal Sevice Committee.
Adalat Case No........................
Present Name of Judicial Officer/Retired Judicial Officer: Cherian Varhese, Rtd CJM Name of Members: 1. Sumitha RB, Advocate 2. Award The dispute between the parties having been referred for determination to the Lok Adalat and the parties having compromised settled the case/matter, the following award is passed in terms of the settlement.
Petitioner, Respondents 1 to 3 are present. The compliant raised in the petition is with respect to the obstructions made along the property which W.A. No. 1086/2021 : 11 : situated at the south-west of respondents 1 and 2 's property which is used as pathway for the petitioner and family.
Heard all parties in petition in person. Inspected report and copy of the survey sketch submitted by the 3rd respondent (Village officer, Ayoor). Petitioner and respondents 1 to 2 agreed had on the following terms and came to the conclusion.
Terms
1. The petitioner and respondents 1 to 2 agreed that the pathway situated along the south -west of 1st respondent's property constitute of 14 feet.
P.T.O The parties are informed that the court fee, if any, paid by any of them shall be refunded.
Sign 19/11/2020 (1) P.R.Anilkumar Sign
Petitioner/Plaintiff (2) M G Krishnakumari
Anuja Aniyan sign
Defendant/respondent
Judical Officer Cherian Varghese Rtd 19/11/20 (3) Village Officer
CJM Ayroor Sign
19/11/2020 S
Jayaraj
Sunitha R B Advocate
Sign
Date:
19/11/2020 (Seal of the Authority/committee)
W.A. No. 1086/2021 : 12 :
This pathway starts from the private property situated at the east and ends at the petitioner's property. The petitioner and respondents 1, 2 and 3 says that this pathway is 60-70 meters long.
2. Respondents 1 to 2 agrees that the pathway mentioned in term (1) can be used by the petitioner and his family without any obstructions. Respondents 1 to 2 also agree that they have no objection in transporting goods in vehicle for petitioner's family purposes. Respondents 1 to 2 also agrees that, years on this pathway shall be maintained in proper way without any gutters and potholes, and clearing of scrubs and weeds in pathway, for making transportation in vehicles possible.
3. Both the parties agree that,this pathway cannot be used by any other families.
4. If petitioner sell his property then this pathway shall be closed by respondents 1 and 2.
5. The petitioner and the respondents 1 to 2 agree that, this pathway can only used for transit in vehicle and by foot by the petitioner and his family.
6. The petitioner and respondents 1 to 2 agree that, when petitioner and his family uses this pathway, respondents 1 to 2 shall not make any formidable or derogatory actions by way of comments or deeds against petitioner; his family; relatives or friends.
6A) Similarly, petitioner agree that, when petitioner and his family uses this pathway, the will also restrain form making any formidable or derogatory actions by way of comments or deeds against respondent 1 to
2.
7. The petitioner and respondents 1 to 2 are under statutory obligation to act as per this order.
Petitioner: sign 19/11/2020 Respondent. P T O
W.A. No. 1086/2021 : 13 :
Anuja Aniyan (1) P R Anil Kumar
(2) M S Krishnakumari
(3) Village officer, Ayroor
Date : 19/11/2020 S Jayaraj sign 19/11/20
If any of the parties fails to perform any terms in this order, aggrieved party have the right and authority to approach and file an execution petition before the civil court.
For the purpose of clarification report and survey sketch submitted by the 3rd respondent (Village officer, Ayroor) is attached herewith the award.
Thus the case is ordered to be disposed on this agreement.
Petitioner: sign Respondent:
Anuja Aniyan 1) Anilkumar 19/11/20
sign 19/11/2020
2) Krishnakumari 19/11/20 sign
3) Village Officer 19/11/20 sign
Judicial officer: Cherian Varghese, Rtd CJM, sign , 19/11/2020 Member: Smitha RB (Advocate) sign Date: 19/11/2020"
15. On a reading of the award, it is clear that a way is carved out with the agreement of the appellant and the 3 rd respondent Anooja Aniyan and nowhere in the award, the name of the writ petitioner is shown. In the cause title of the award, the name of the 3 rd respondent W.A. No. 1086/2021 : 14 : alone is shown as the petitioner/plaintiff, apart from the name of the appellants as defendants/ respondents. It is also important to note that throughout the award, only the 3 rd respondent has addressed as the petitioner and nowhere the name of the writ petitioner is appearing. Therefore, one thing is clear, the parties were conscious of the fact that the settlement award is being passed on the basis of the settlement arrived at by and between Anooja Aniyan, the 3 rd respondent and the appellants alone, and the same is entered without the juncture of the writ petitioner. It is also clear that the appellants were undoubtedly aware of the fact that the 3 rd respondent also is entitled to a right of pathway to enter into the property of the writ petitioner for herself and the family, though she has no ownership in the property. Therefore, there is no force in the contention advanced by the learned counsel for the appellants that the 3 rd respondent, merely being a resident of the house, is not entitled to have a right of pathway in the absence of the writ petitioner in the award passed, and the award passed is not executable.
16. Considering the issue in that background, we are of the clear opinion that there was only an agreement by and between the appellants and the 3rd respondent Anooja Aniyan and going by the provisions of the Act, 1987 and the Regulations, the award is binding on the appellants and the 3rd respondent Anooja Aniyan. Whatever that W.A. No. 1086/2021 : 15 : be, since the writ petitioner has not subscribed his signature to the award, it cannot be heard to say that the award is binding on the writ petitioner .
17. On going through the suit filed by the writ petitioner, it is clear that the writ petitioner is claiming a prescriptive right of easement through the way in question and on the other hand, the appellants in the suit is seeking a permanent prohibitory injunction against the writ petitioner and the 3 rd respondent to prevent them from carving out a pathway through the property of the appellants or from plying any vehicles through any portion of the plaint schedule property belonging to the appellants.
18. It is an admitted fact that insofar as the way carved out in Ext. P2 award is concerned, it is on the basis of the settlement award arrived at by and between the parties i.e., the appellant and the 3 rd respondent, which remains undisputed and therefore, the appellants cannot resile from the agreement entered into by and between the parties in Ext. P2 award. Insofar as the claim of the writ petitioner and the appellants in the suits are concerned, it is yet to be adjudicated by the civil court, taking into consideration all the attendant facts and circumstances.
19. Upshot of the discussion is that we do not find any reason to interfere with the impugned Judgment, there being any error in W.A. No. 1086/2021 : 16 : exercising the discretionary jurisdiction and other legal infirmities liable to be interfered with in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958.
Needless to say, writ appeal fails and accordingly, it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.A. No. 1086/2021 : 17 : APPENDIX OF WA 1086/2021 PETITIONER ANNEXURE Annexure A COPY OF EXECUTION PETITION NO.6/2021 IN PLP NO.1265/2020 BEFORE HON'BLE MUNSIFF COURT, RANNI FILED BY 4TH RESPONDENT.
Annexure B COPY OF THE OS NO.27/2021 BEFORE HON'BLE MUNSIFF COURT, RANNI, FILED BY THE PETITIONER.
Annexure C COPY OF IA 1/2021 IN OS NO.27/2021 BEFORE HON'BLE MUNSIFF COURT, RANNI.
RESPONDENTS' EXHIBITS:
ANNEXURE R1(A): TRUE COPY OF THE PLAINT IN O.S. NO. 27 OF 2021 ON THE FILES OF THE MUNSIFF'S COURT, RANNY.
ANNEXURE R1(B): TRUE COPY OF THE PLAINT IN O.S.NO. 29 OF 2021 ON THE FILES OF THE MUNSIFF'S COURT, RANNI ALONG WITH ITS ENGLISH TRANSLATION.
/True Copy/ PS to Judge.
rv