G.K.Rajagopala Rao vs The Statepolice Chief on 12 December, 2012

[Cites 15, Cited by 4]

Kerala High Court

G.K.Rajagopala Rao vs The Statepolice Chief on 12 December, 2012

This writ petition, under Article 226 of the Constitution of India, seeking police protection for life and property of the petitioners could have been easily disposed of by us like any other case of similar nature. But we stumbled across a glaring illegality in the manner in which the earlier civil proceedings between the contesting parties were handled in a Lok Adalath constituted under the Legal Services Authorities Act, 1987 (in short, "the Act"). We are terribly disturbed by the fact that vagueness in the terms of settlement arrived at between the parties (that too relatives) in a Lok Adalath is the root cause for the subsequent disputes between them. Even now they are unable to harmonise their relationship and restore cordiality. If anybody blames the handlers of the Lok Adalath for prolonged agony of the parties, no one will be able to defend them for palpable reasons.

2. Heard the learned counsel for the petitioners and the contesting respondents. Learned Government Pleader was also heard.

3. Facts, in brief, are as follows: Petitioners are husband and wife WP(C) No.18122/2016(M) 2 and they belong to Madawa Brahmin community. Since the petitioners could not beget a biological child, they adopted a female child by name Dakshavani born on 16.06.1996. The adoption was approved in a legal proceedings before the XIII Additional City Civil Court, Mayohall Unit, Bangalore. The petitioners rechristened the child as Ankitha. She is now aged 18 years and studies for a postgraduate degree course. There were suits between the petitioners and the 8th respondent. 8th respondent and others filed O.S.No.109 of 1994 before the Sub Court, Kottarakkara against the 1st petitioner. 8th respondent filed another suit as O.S.No.58 of 1995 before the same court against the 1st petitioner. Both the suits were settled on 08.11.2008 in a Lok Adalath constituted under the provisions of the Act. Exts.P1 and P2 are the settlements arrived at between the parties on the basis of which separate awards were passed under the Act. Against Ext.P1 settlement, one Meenakshi Amma and Reshma Rao filed O.P.(C) No.4302 of 2012 before this Court and it is still pending. There were disputes in the execution proceedings pursuant to Ext.P2 settlement. The 1st petitioner had to approach this Court in O.P.(C) No.969 of 2011 and it was disposed of by judgment dated 28.06.2011, which is produced as Ext.P3. When the original petition was pending, it was referred to mediation. In the mediation, the parties again arrived at some preliminary agreement on 11.10.2012. However, the parties could not completely settle the disputes which arose out of matters once settled in the Lok WP(C) No.18122/2016(M) 3 Adalath.

4. As directed by this Court in Ext.P3, the Advocate Commissioner appointed from the executing court visited the property in order to execute the terms of settlement. 5th respondent and others obstructed the Commissioner and Surveyor. They allegedly misbehaved towards the petitioners and others. This was reported by the Advocate Commissioner in his report in E.P.No.90 of 2009 in O.S.No.58 of 1995 before the Sub Court, Kottarakkara. 1st petitioner challenged the order in the above execution petition allocating the properties and sought for a prayer to set aside the Commissioner's report. It was allowed as per Ext.P4 judgment passed in O.P.(C) No.1844 of 2015. Ext.P2 settlement had already been executed through court.

5. Petitioners submit that after execution of Ext.P2 settlement, respondents 5 to 11 and their henchmen continuously posed threat to life of the petitioners and their adopted daughter Ankitha. The respondents openly declared that they would not permit the petitioners to enjoy the property. Therefore, the petitioners filed Ext.P5 representation before the 1st respondent. Petitioners would contend that the respondents 5 to 11 are having much political clout and influence in the police department. Therefore, the petitioners are seeking police protection for their life and property.

6. The contesting respondents 5 to 9 filed a counter affidavit. WP(C) No.18122/2016(M) 4 They stated that they never posed any threat whatsoever to life and property of the petitioners. It is also submitted that there were other civil litigations between the parties. 5th respondent had filed O.S.No.221 of 2009 before the Munsiff's Court, Punalur seeking a permanent prohibitory injunction against the 1st petitioner from committing any act of waste in respect of the plaint schedule properties. That suit was decreed in favour of the 5th respondent. 1st petitioner had filed an appeal as A.S.No.83 of 2011 before the Sub Court, Kottarakkara and the appellate judgment is Ext.R5(b).

7. 10th respondent also filed a counter affidavit stating that he never threatened the petitioners as alleged in the petition.

8. Petitioners filed a reply affidavit and some additional documents have been produced along with the same.

9. It is disheartening to note that subsequent to Exts.P1 and P2 settlements and consequent awards passed by the Lok Adalath, the parties are still fighting various litigations. Ext.P1 is dated 08.11.2008 wherein O.S.No.585 of 2008 before the Sub Court, Kottarakkara was purported to be settled. Ext.P2 is also of the same date, whereby O.S.No.584 of 2008 before the same court was said to have been settled. The ineffectiveness of settlements in the suits arrived at before the Lok Adalath is revealed from the fact that the 5th respondent had filed another suit in respect of the same subject matter, as O.S.No.221 of 2009 before the Munsiff's Court, WP(C) No.18122/2016(M) 5 Punalur, against the 1st petitioner and even in the execution proceedings, consequent to the settlement, the parties are not able to agree on many things. The pertinent fact to be noted is that the Lok Adalath was presided over by a Judicial Officer and a Member, who is an Advocate. We have carefully gone through the terms of settlement in Exts.P1 and P2. We are constrained to observe that the terms of settlement are so unclear, out of focus and murky that they failed to convey a sensible adjustment of the rights between the parties. Interpretation of the statements contained in Exts.P1 and P2 are left to imagination of the parties. In otherwords, reasons are aplenty for a mischievous mind to interpret the terms of settlement in a manner suiting his convenience. We are damn sure that this is not what is intended to be achieved by passing an award under the Act. Who is to be blamed for the chaotic results of such awards? Lack of commitment and inability to understand the legal consequences by persons handling the Lok Adalaths are the main reasons for this mishap. Lok Adalaths are intended to amicably, fully and finally settle the disputes between the parties. Needless to say, care should have been taken to see that no future dispute arose between the parties in respect of matters covered by the settlement. If the settlements in Lok Adalath turn out to be ineffective or counter productive, then the faith in the system itself will be eroded. In order to appreciate the responsibility of the persons manning Lok Adalaths, we may point out the relevant legal provisions. WP(C) No.18122/2016(M) 6

10. Section 89 of the Code of Civil Procedure, 1908 (in short, "the Code") was re-inserted by Act 46 of 1999, with effect from 01.07.2002 with the avowed object of settling cases through the four methods suggested therein. One of the important objects of the provision is to dissolve huge pendency of cases. It is also the intention of the legislature to see that the parties are amicably settling their disputes fully and finally; and the finality attached to an award (to be passed in the Lok Adalath) should prevent further legal proceedings in that matter. Section 89 of the Code mentions judicial settlement, including the settlement through Lok Adalath, as a means for settlement of disputes. Supreme Court had occasion to consider the underlying principles in Section 89 and Order X Rule 1A of the Code in great detail in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.(P) Ltd. ((2010) 8 SCC 24) and the law expounded is definite.

11. The Legal Services Authorities Act, 1987 was enacted not only to provide free and competent legal service to the weaker sections of the society, but also to organize Lok Adalaths to secure that operation of the legal system promotes justice on a basis of equal opportunity. Chapter VI of the Act deals with Lok Adalaths. Section 19 of the Act declares the responsibility of the authorities under the Act to organize Lok Adalaths at such intervals and places for exercising such jurisdiction as it thinks fit. Sub-section (2) of Section 19 of the Act says that every Lok Adalath WP(C) No.18122/2016(M) 7 organized shall consist of a serving or a retired Judicial Officer and other persons. Sub-section (5) of Section 19 of the Act is important. It is re- produced hereunder:

"(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of-

(i) any case pending before; or

(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised:

Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law."

In the case on hand, the Lok Adalath, which passed Exts.P1 and P2 awards, was constituted in respect of cases pending before the Sub Court, Kottarakkara. The Adalath was organised for disposal of cases pending in that court. Section 20 of the Act says about the manner in which the Lok Adalaths could take cognizance of cases. Another important provision is Section 21 of the Act. It reads as follows.

"Award of Lok Adalat.- (1) Every award of the Lok Adalat shall be deemed to be a decree of a WP(C) No.18122/2016(M) 8 civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).

(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award."

From the above, it is clear that when a matter, pending before a civil court, reaches before the Lok Adalath organised under the Act and when that matter is settled between the parties, the terms of settlement should be drawn up properly and signed by the parties so that the award passed thereunder could be deemed to be a decree of the said civil court. It goes without saying that generally any decree passed, excepting some decrees in the nature of declaration of status and the like, should be capable of execution. The awards passed by the Lok Adalath, as seen from Exts.P1 and P2, are bereft of vital details, including names of the parties to the suit. Stated differently, the cause title in the awards do not show even the full names and addresses of all the parties to the settlement. Instead, it is too tersely stated as "Sreenivasa Rao & others - Plaintiffs vs. Rajagopala Rao & others - Defendants". This is said to be one of the reasons which WP(C) No.18122/2016(M) 9 prompted a party to Ext.P1 to file a writ petition challenging it. Similarly, other deficiencies in Exts.P1 and P2 also caused subsequent litigations.

12. Order XX Rule 6 of the Code states about the contents of a decree. The provision insists that the decree should contain the number of suit, the names and descriptions of the parties, their registered addresses and particulars of the claim. The decree shall specify clearly the relief granted. Entire provisions in Order XX Rule 6 of the Code may not be relevant here, since some are related to decrees to be passed after adjudication of a case. It is very important to remember that in the case of an award under the provisions of the Act, the settlement arrived at by consensus between the parties is the corner stone.

13. Appendix D to the Code deals with decrees. It can be seen from the model forms that "title" is an essential part of a decree. As required in Order XX Rule 6 of the Code, the names and descriptions of the parties and their registered addresses, if any, should be clearly shown in the decree. It is insisted for a definite reason that later on there shall not be any dispute regarding the identity of the party/parties named in the decree (here in this case, the award)

14. Drawing power from Section 2(2) of the Kerala Destruction of Records Act, 1961, the High Court of Kerala, with the previous approval of the Government, has made Record Destruction Rules (in short, "the Rules") which is annexed as Appendix VIII to the Civil Rules of Practice, WP(C) No.18122/2016(M) 10 Kerala. Rule 2 speaks about dividing the records into various parts. Appendix B to the Rules would show that in the case of original suits and appeals, the plaint, written statement, judgment and decree, etc. would fall under Part I. Rule 3 indicates the periods of retention of records. It can be seen from Appendix C to the Rules that the records falling in Part-I in respect of original suits or appeals, for or affecting immovable properties, should be kept as permanent records. We highlight these aspects only to bring home the importance of drafting proper and correct decrees in civil suits and awards passed under the Act. Decrees passed by civil courts and awards passed by Lok Adalaths in respect of matters referred to settlement from civil courts are to be treated as permanent records and therefore it is mandatory that they should be prepared with mathematical precision.

15. Another important aspect is that both the Judicial Officer and Member (commonly, an Advocate) constituting the Lok Adalath should have fundamental knowledge in the realm of contracts, especially the way in which a lawfully enforceable agreement has to be prepared for execution by the parties. That apart, they must be dexterous in expressing the terms of settlement with utmost clarity and precision. Similarly, they should behold the principles contained in Order XXIII Rule 3 of the Code and see that the terms of settlement arrived at between the parties are lawfully recorded.

WP(C) No.18122/2016(M) 11

16. We are compelled to take note of the callousness and lackadaisical attitude on the part of the lawyers who appeared for the parties in the suits which culminated in Exts.P1 and P2 awards. Needless to remind the members of legal profession that they owe great amount of duty to their clients in securing justice. It is their utmost responsibility to see that a litigation, which is concluded by passing an award in Lok Adalath, does not give rise to prolific litigations. Sections 29 and 30 of the Advocates Act, 1961 declare the right of Advocates as recognised class of persons entitled to practice law. Section 35 of the said Act deals with the punishment of Advocates for misconduct. The Supreme Court in Bar Council of Maharashtra v. M.V.Dabholkar (AIR 1976 SC 242) held, in the light of the above said provisions, that if the practice of law is a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which makes him worthy of confidence of the community in him as a vehicle of justice-social justice. Apex Court in V.P.Kumaravelu v. The Bar Council of India (AIR 1997 SC 1014) observed that gross negligence in the discharge of duties part-takes the shades of delinquency and moral turpitude. It is clearly held that such act on the part of an Advocate would amount to professional misconduct. The principle of law laid down by the Supreme Court in Preeti Gupta v. State of Jharkhand (AIR 2010 SC 3363) is that the members of WP(C) No.18122/2016(M) 12 Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. In the decision, the Supreme Court emphasised the responsibility of Advocates to assist the parties in arriving at an amicable resolution of disputes. The need to ensure that one complaint should not lead to multiple cases is also specifically mentioned therein. With dismay, we are constrained to observe that the Advocates concerned failed in their duty to see that the parties reached at a settlement fully and finally.

17. On all the counts mentioned above, Exts.P1 and P2 fall well short of the required standard. Only inference that can be drawn, from the facts and circumstances of this case, is that the awards in question were drawn up in a perfunctory manner, causing great injustice to the parties thereto.

18. In order to prevent the menace of passing awards without due care, attention and precision by Lok Adalaths, we intend to formulate some guidelines. We may hastily add that they are not exhaustive and may take in other things as well, depending on the facts of each case. The crucial points to be borne in mind by the persons presiding over the Lok Adalaths and the lawyers appearing for the parties are thus:

(i) The persons presiding shall thoroughly study and clearly understand the facts of the case coming up for settlement.

WP(C) No.18122/2016(M) 13

(ii) They must have a clear understanding about the legal issues involved in the dispute between the parties.

(iii) If the parties have engaged lawyers, they shall also participate in the proceedings before the Lok Adalath so that a proper settlement could be arrived at.

(iv) The persons presiding over the Lok Adalath and the lawyers concerned shall bear in mind the fundamental principles, under the Indian Contract Act, 1872, essentially required for executing a legally enforceable agreement.

(v) They shall bear in mind the principles under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 also, so that the award must be in the form of an enforceable decree, if the parties so wish. This is all the more important because by virtue of Sub-section (2) of Section 21 of the Legal Services Authorities Act, 1987, every award made by Lok Adalaths shall be final and binding on the parties to the dispute and no appeal shall lie to any court against the award.

(vi) The persons presiding over the Lok Adalath shall see that the award passed is clear in its terms and there shall be no room for any confusion in respect of the WP(C) No.18122/2016(M) 14 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.

(vii) They shall see that the awards passed are not only legal, but also conforming to the norms prescribed for a decree with all the required details in clear and explicit terms.

We are sad to notice that none of the above said aspects had been considered by the persons responsible for passing Exts.P1 and P2 awards. That led to the subsequent catastrophes for the parties.

19. In order to dispose of this case, we take cognizance of the following facts. The petitioners and the party respondents are still fighting legal battles. It is the submission of the learned Government Pleader, after taking instructions, that some of the respondents have posed threat to the life of Ankitha, the adopted daughter of the petitioners. Petitioners would contend that the contesting respondents threaten them too. After hearing the learned counsel on both sides and the learned Government Pleader, we are of the view that the interim order passed by this Court on 16.06.2016 has to be confirmed with following modifications.

The 2nd respondent (District Police Chief, Kollam (Rural)) shall afford adequate police protection to life of the petitioners and their adopted WP(C) No.18122/2016(M) 15 daughter Ankitha, as and when required.

In the peculiar facts of this case, we direct the Registrar General of this Court to hand over a copy of this judgment to the Member Secretary, Kerala Legal Services Authority for circulating to all the Chairmen of District Legal Services Authority and Taluk Legal Services Committee functioning in the State, for guidance and strict compliance.

Writ petition is disposed of accordingly.

K.T.SANKARAN, JUDGE.

A. HARIPRASAD, JUDGE.

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