Karnataka High Court
Smt. Akkubai W/O. Siddanaik Patil vs Shri. Venkatrao S/O. Gourav Shindur @ ... on 11 March, 2014
Author: Aravind Kumar
Bench: N.Kumar, Aravind Kumar
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION No. 63372 OF 2012 (GM-CPC)
BETWEEN
SMT. AKKUBAI
W/O SIDDANAIK (PAIL) * PATIL
AGE: 42 YEARS
OCC: HOUSEHOLD WORK
R/O. ANAGWADI
TQ: BILAGI
DIST: BAGALKOT
NOW RESIDING AT
ANGADI ONI MUDALGI
TQ: GOKAK,
DIST: BELGAUM ...PETITIONER
* SMT
(BY (SRI) SHAILA BELLIKATTI, ADVOCATE)
AND
1. SHRI VENKATRAO
S/O. GOURAV SHINDUR @ GASTI
CALLING HIMSELF AS SON OF ANNASAHEB
AGE: 37 YEARS, OCC: ADVOCATE
R/O. ANAGAWADI, TQ: BILAGI,
DIST: BAGALKOT.
* Corrected vide Court order
dtd: 11.03.2014
Sd/-
Hon'ble AKJ
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2. KUMARI. SHANTA
D/O GOURAVVA SHINDUR @ GASTI
CALLING HERSELF AS DAUGHTER OF
ANNASAHEB
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANAGAWADI, TQ: BILAGI,
DIST: BAGALKOT.
3. SHRI GOURAVVA SHINDUR @ GASTI
* HERSELF
CALLING (HIMSELF) AS W/O. ANNASAHEB
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANAGAWADI, TQ: BILAGI,
DIST: BAGALKOT.
4. SHRI INDUMATI @ KAMALAKSHI
W/O. VENKATESH @ VENKATRAO DESAI
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O. GANI TQ: BASAVAN BAGEWADI,
DIST: BIJAPUR. ...RESPONDENTS
(BY SRI SANTOSH B MANE, ADVOCATE FOR R1;
SRI SACHIN S. MAGADUM, ADVOCATE FOR R2 AND 3;
SERIVICE OF NOTICE TO R4 HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE COMPROMISE DECREE MADE IN
OS.NO.278/2002 DATED 13.12.2002 ON THE FILE OF THE
PRL. CIVIL JUDGE [SR.DN.] JAMKHANDI AT JAMKHANDI
VIDE ANNEXURE-H.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT, MADE THE
FOLLOWING:
* Corrected vide Court order
dtd: 11.03.2014
Sd/-
Hon'ble AKJ
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ORDER
This writ petition is filed seeking quashing of the compromise decree made in O.S.No.278/2002 on 13.12.2002 on the file of Principal Civil Judge (Sr. Dn.), Jamakhandi.
2. This is an another classic case of abuse of the wonderful concept of 'Lok Adalat' which is used as an instrument to deprive an uneducated and poor lady of her valuable right to an immoveable property which the Parliament has conferred on her by enacting Hindu Succession Act as well as by amendment to the Hindu Succession Act, conferring a co-parcenery right on a woman.
3. One Ningappa was the propositus. He had a son by name Annasaheb. The said Annasaheb married one Awwasaheb and through her he had two daughters by name Indumati and Akkubai. Annasaheb died on 14.01.1994. He married one Gouravva. Through Gouravva he had five 4 daughters and one son by name Venkata Rao. The said joint family owned four items of agricultural land and two house properties. The second daughter Akkubai was married. It appears there was some disharmony between her and her husband and therefore she returned to her parents' house. The said Annasaheb executed a registered Will bequeathing Sy.No.155/2 measuring 9 acres 22 guntas and half share in VPC No.370 and entire VPC No.371 under a registered Will dated 24.02.1992 in favour of Akkubai. Acting on the said Will even during the lifetime of her father, mutation entries were made out in her name. Her sister Kamalakshi@Indumati filed a suit in O.S.No.200/98 for partition and separate possession of her legitimate share in the joint family property. The said suit was filed against her father who was arrayed as first defendant, Smt. Gouravva, the second wife of Annasaheb as second defendant, Akkubai her sister as third defendant and purchasers were also made parties as defendants-4 to 7. As one of the subject matters of the land was subject matter of acquisition, the Special 5 Land Acquisition Officer was impleaded as 8th defendant. As is clear from the cause title itself, she was not prepared to recognize the second defendant-Gouravva as wife of Annasaheb. Therefore she did not make her children as parties to the suit. In the said suit, Annasaheb, Gouravva and Akkubai were represented by common Advocate by name Sri M.C. Bhandari, Advocate, Jamakhandi. In the said suit, an application was filed for direction to the Land Acquisition Officer prohibiting him from disbursing compensation amount in respect of suit schedule B property to defendants-1 to 7 to the extent of admitted 1/3rd share of the plaintiff. The suit against 8th defendant came to be dismissed as Deputy Commissioner or Chief Secretary to Government were not made parties as contemplated under Order 27 Rule 5 CPC. The aforesaid order came to be passed on 03.10.2002. The case was posted for hearing regarding maintainability of the suit on 17.01.2003. 6
4. During the pendency of the suit, Annasaheb died on 22.10.2002. Venkata Rao, S/o Annasaheb through his second wife, filed a suit in O.S.No.278/02 against Akkubai, Kumari. Shanta and Smt. Gouravva on 12.12.2002, for partition and separate possession in respect of property which had been bequeathed in favour of Akkubai by her father. In the genealogy which is set out in para 2 of the plaint, it is clearly mentioned that Annasaheb through Gouravva has five daughters by name Vijayalaxmi, Meenaxi, Sharada, Sumitra and Shanta. Only Shanta has been made party to the suit as defendant No.2. It also discloses that Annasaheb through his first wife Awwasaheb had two daughters Akkubai and Indumati. Akkubai is made as first defendant and Indumati was not made party, though as on the date of the suit, Indumati had filed O.S.No.200/98 seeking for partition and Gouravva was the second defendant in the said suit and Akkubai was third defendant. The order sheet in the said suit is produced as Annexure-E to the writ petition. It discloses that along with the plaint, 7 an application under Order 39 Rule 1 & 2 CPC and an affidavit is filed by the Advocate for the plaintiff praying that ad interim injunction be issued against the first defendant restraining her from alienating the suit land and house. This suit is filed by M.C. Bhandari, Advocate Jamakhandi who was representing Akkubai, Gouravva and Annasaheb in the pending suit in O.S.No.200/98. As is clear from the order sheet, the said suit was registered on 03.12.2002. The order sheet reads as under:
"Registered suit. Heard MCB at this stage RSN files vakalath for Defts. 1 to 3. Case is taken before lok adalat in the presence of Conciliator Sri B.S. Chegaraddi. It is submitted that parties to the suit have settled the matter. Parties to the suit admit the terms of compromise petition & Defts. 1 to 3 submits that they have received Rs.25,000/- each outside the Court. Suit is decreed in terms of compromise petition & draw final decree directly if necessary non-judicial stamps are furnished by the plaintiff."8
5. The said order sheet bears the signature of the Advocates and the parties as well. The compromise petition, which was filed in the said suit is also produced in the writ proceedings. The said compromise recites that a sum of Rs.25,000-00 is paid to defendant out side the Court in the presence of elders and therefore they are relinquishing their rights in the suit schedule property. In so far as compensation amount is concerned, the third defendant is entitled to the same and the parties has to bear their own costs. Subsequently, O.S.No.200/98 came to be dismissed by passing the following order on 17.01.2003:
"Plff. Called out absent. KAJ absent though waited till 3.20 p.m. The daughter has filed a suit against father during his life time. It is not the case of the plff. that she is married after 1994 Karnataka Amendment Act. Hence, suit itself is not maintainable and is dismissed."
6. The said Indumati filed O.S.No.11/03 which was subsequently renumbered as O.S.No.176/05 where she 9 sought for a declaration that the mutation entries made in respect of the two agricultural properties and two house properties which are more particularly described in the schedule are null and void and for partition and separate possession against her 1/4th share. In the said suit, Akkubai has filed a written statement setting out the entire family history and the compromise entered into in O.S.No.278/02 and relinquishing her interest in the properties by taking Rs.25,000-00.
7. The daughter, Indumati filed one more suit in O.S.No.5/10 against her sister Akkubai, the second wife- Gouravva, Venkata Rao and Shanta. In the plaint there is a reference to O.S.No.200/98 and the dismissal of the said suit as not maintainable. However, Annasaheb died on 22.10.2002. There is also a reference to the suit filed by Venkata Rao in O.S.No.278/02 and the passing of the compromise decree in the said suit.
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8. Thereafter when she was not given her share, she was constrained to file a suit for declaration that, the compromise is collusive, decree passed in O.S.No.278/02 on the file of the Principal Civil Judge, Senior Division, Jamkhandi is null and void and not binding on her legitimate half share in the said property and for partition and separate possession of her half share in the property.
9. In this entire episode, what is disturbing for this Court is the purpose for which this alternative dispute resolution mechanism of Lok Adalath is used. In the present writ petition, the petitioner has narrated the facts, which according to her constitutes the circumstances, which justified setting aside the award passed by the Lok Adalath. She has made serious accusations against the Advocate M.C. Bhandari. A reading of the writ petition shows that she did not engage R.S.Ningolli, Advocate and she has accused that she was not the consenting party to the compromise and misrepresentations are made to her. In fact, she also says 11 that her signature was obtained on the compromise by misguiding her and behind her back. She was completely ignorant of all these happenings.
10. The allegations against the Counsel in his absence cannot be gone into in this proceedings. The proper forum where it can be gone into is the Bar Council. But what is explicit from the material on record is, the Advocate M.C. Bhandari was representing Annasaheb, Gouravva and Akkubai in the first suit filed by Indumati for partition in O.S.No.200/98, where all the properties belonging to the joint family were the subject matter of the suit. During the pendency of the said proceedings, he files a suit on behalf of Venkat Rao in O.S.No.278/02 against Akkubai, Gouravva and Shanta, the own sister of Venkata Rao. An application for temporary injunction is also filed restraining Akkubai from alienating the suit land and the house. What is surprising is, on 13.12.2002, the suit is registered by the Court. The Court entertained the suit and took cognizance 12 of the presentation of the plaint. At that stage, R.S. Ningolli, Advocate files vakalath for all the three defendants-1 to 3. After vakalath is filed, the learned Presiding Judge says that the case is taken before the Lok Adalath in the presence of Conciliator Basavaraj S Chegaraddi. This is what at any rate, I am not able to understand. The plaint was presented in the Court before the Judge. Before the Judge, the vakalath was filed. Before the Judge, the learned Counsel was present. In the Court, there is no place for the Conciliator. But the order-sheet shows that the case, which was presented before the Court is taken before the Lok Adalath in the presence of the Conciliator. This statement is part of the order dated 13.12.2002, which finds a place in the ordersheet in the Court. When this matter was taken before the Lok Adalath, parties submitted that they have settled the matter. They filed compromise petition and admitted the compromise. It is recited that Defendants-1 to 3 admits that they have received Rs.25,000-00 each out side the Court. Therefore the suit was decreed in terms of the 13 compromise petition and a direction was issued to draw final decree. All this finds a place in the order-sheet maintained by the Court. Therefore there is no separation of the proceedings between the judicial proceedings and the Lok Adalath. This has become a two-in-one proceedings.
11. I really wonder, whether the learned Judge who has entertained this matter was aware of the elementary aspects of judicial functioning and the Lok Adalath. A common order-sheet cannot be maintained by the Court as well as the Lok Adalath. A Court cannot be converted into a Lok Adalath. In the order-sheet maintained by the Court, a portion of the proceedings is referable to the Court proceedings and another portion refers to the proceedings of the Lok Adalath. The Conciliator has no place inside the Court. The very object of accepting this Lok Adalath as an alternative mode of resolution of dispute is that, all matters do not need adjudication. The matter which could be resolved by persuasion, negotiation and understanding should be taken out of adjudication process and should be 14 resolved by means of Lok Adalath satisfactorily, so that the cases are disposed of expeditiously and the Courts will be saving the time of adjudicatory process, and they can utilize that time which is saved, in adjudicating the cases. If on the day the plaint is presented, the parties are also present before the Court, they are ready with the compromise petition and when they are filing an application under Order 23 Rule 3 CPC, when they are admitting the terms of the compromise and execution of the terms and condition, then the Court before which it is presented, is the competent Court to record the compromise and dispose of the suit in terms of the compromise. The question of referring the said dispute to the Lok Adalath would not arise. If it is referred, it is a farce. If this is accepted and encouraged, both the judicial system and this alternative dispute resolution mechanism gets a bad name and would be subjected to redicule in the eyes of public. All persons who are indulging in this process would be doing great injustice and dis-service to the judicial system. They are not conscious of their action 15 and its repercussions and the image of the Judiciary, which would create in the mind of the public. That is not the object with which neither Legal Services Authority Act of 1987 is passed by the Parliament providing for the institution of Lok Adalath nor Section 89 was introduced by the Parliament amending CPC. The essence of these provisions is neither understood by the learned Judge nor by the learned Counsels who are appearing for the parties.
12. It is time that the Legal Service Authority should conduct workshops and seminars and other mode of communications to educate these legal literate persons like Judges, Lawyers and Conciliators to understand the concept of Lok Adalath and how the Courts have to function, what is the duty of the lawyers and what matters should be resolved by this process.
13. In this background if we look at the facts of the case, the daughter files a suit against her father, sister and 16 others for partition and separate possession complaining of her father preferring one daughter by executing registered Will. That fortunate daughter, the father and second wife engages a common Counsel. No written statement is filed. During the pendency of the proceedings, the Advocate who was representing defendants-1 to 3 in the said suit, files a suit against them on behalf of son of Gouravva, for partition and separate possession in respect of the property which is the subject matter of the suit. Therefore there is conflict of interest between Venkata Rao and Akkubai in respect of the property. On the date the suit is filed, the Advocate appears for the defendants with the vakalath ready. If this is the indication of the relationship between the parties, the order- sheet discloses that along with the suit, an application is filed for temporary injunction restraining Annasaheb from alienating the property. Then it is a farce. Immediately after the appearance of the Advocate, the learned Judge who received vakalath transforms himself as the person presiding over the Lok Adalath, secures the presence of the 17 Conciliator, acts on the submission of the parties, receives the compromise petition, records compromise and directs the office to pass final decree in terms of the preliminary decree. Accordingly the office has drawn the final decree.
14. A daughter, to whom the entire property was given by her father under a registered Will is now denied her right in the property. Assuming for the argument sake that the property was not the self acquired property of the father and it was a joint family property, then, the Will which he has executed would be valid only to the extent of his share. The Will is not in dispute. It is a registered document. Now by the compromise, the daughter who had got this right, gives up her right for a sum of Rs.25,000-00. The amount is not paid before the Lok Adalath, but is paid out side the Lok Adalath. The very object of the Lok Adalath is, if any such settlement has to happen, it has to happen in the Lok Adalath. If Rs.25,000-00 is to be paid to her, it could be paid before the Lok Adalath, in the presence of the 18 Conciliator and in the presence of the Presiding Judge before the Lok Adalath. When a Compromise is filed and parties state that they have received the amount outside the Court, the Conciliator or the Judge should have become alert. Recording compromise is not a mechanical or clerical job. It is a conscious judicial act to be performed by the Judge inside the Court and if it is before the Lok Adalath, by the Presiding Judge and the Conciliator. If the lady is illiterate, in the Lok Adalath, it is presumed that the Conciliators are more familiar with the living conditions of the parties of that particular region and they are expected to take all possible precautions to see that in a compromise, nobody is cheated and nobody is defrauded, lest, the blame will be on them. The way the compromise is recorded shows that the learned Judge nor the Conciliator have applied their minds and have tried to find out whether the compromise is lawful or not, why the amount was not paid before them, inside the Court or before Lok Adalath and blindly accepting the submission, the order is passed. The result is, the lady who got the 19 property under the registered Will, who had a share at a partition, is deprived of the valuable right to immovable property. She is knocking at the door of this Court complaining of irregularities and illegalities and pleading her helplessness.
15. If the object of introducing Lok Adalath as alternative dispute resolution is to avoid the Courts deciding the matters and ease the burden of the Courts, if these things are allowed, it is just having a counter effect. After decision in the Lok Adalath, now we are seeing writ petitions are filed challenging those awards. This is not the first case this Court is deciding. This is not the first case where Judges and Members of the Lok Adalath are conducting themselves in this fashion. There is something seriously wrong in the whole system, which needs immediate corrective steps.
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16. In the circumstances, without casting aspersions on the learned Judge or the learned Counsel who appeared for the parties, the way the learned Judge has conducted himself, both inside the Court and as a Member of the Lok Adalath and also the Conciliator before the Lok Adalath, it would be just and appropriate to set aside the award and direct the parties to agitate their rights in the suit and work out their remedy. This Court not only cannot be a silent spectator of this illegalities, it would be the bounden duty of this Court to interfere with such illegal awards and set aside the same and restore the valuable rights of the immovable properties to the parties, which is taken away through the process of Lok Adalath. Hence, I pass the following order:
Writ petition is allowed.
The impugned award passed by the Lok Adalath on 13.12.2002 in O.S.No.278/02 is hereby set aside. The suit is restored to its original file.21
Send a copy of this order to:
(a) The Bar Council of Karnataka to look into the role played by M.C. Bhandari and R.S. Ningolli, Advocates of Jamkhandi, to enquire whether their conduct in this proceedings is consistent with the professional ethics which is up held by the Bar Council of Karnataka. It also will enable the Bar Council to take appropriate steps to educate the members of the Bar regarding their conduct before Lok Adalath and to see that such allegations and situation do not recur bringing down the reputation of the profession.
(b) Patron-in-Chief, Karnataka State Legal Services Authority, Hon'ble the Chief Justice, High Court of Karnataka.
(c) Legal Services Authority for appropriate remedial action.
SD/-
JUDGE Kms/Naa/ksp/-
22AKJ: W.P. No.63372/2012 11.03.2014 ORDERS ON "BEING SPOKEN TO"
In the cause title, below the name of petitioner, it has been typed as "Siddanaik Pail" instead of "Siddanaik Patil". Same is ordered to be corrected as "Siddanaik Patil".
The name of learned counsel has been has been shown as "Shri Shaila Bellikatti" instead of "Smt. Shaila Bellikatti". Same is ordered to be corrected as "Smt. Shaila Bellikatti".
Likewise, below the name of 3rd respondent instead of the word "herself" in second line, it has been erroneously typed as "himself". Same is ordered to be corrected as "herself".
Registry is directed to correct the autograph accordingly. Since the petitioner has already obtained a certified copy of this order, Registry is directed to issue 23 page Nos.1 and 2 of the certified copy free of cost to the learned counsel for petitioner, if applied for.
Sd/-
JUDGE Rsh