Kerala High Court
Mary Gomas vs Vaitus on 19 November, 2020
Equivalent citations: AIR 2021 KERALA 63, AIRONLINE 2020 KER 1094
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942
OP(C).No.359 OF 2019
AGAINST THE ORDER IN I.A.NO.80 OF 2018 IN OS 466/2010 DATED
10-12-2018 OF PRINCIPAL SUB COURT,KOLLAM
PETITIONERS/PETITIONERS-PLAINTIFFS:
1 MARY GOMAS
AGED 45 YEARS
W/O. CLEETUS GOMAS, MARIYALAYAM PRAKKULAM,
THRIKKAKKARA VILLAGE, KOLLAM-691602.
2 CLEETUS GOMAS,
S/O. CLEETUS GOMAS, MARIYALAYAM PRAKKULAM,
THRIKKAKKARA VILLAGE, KOLLAM-691602.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENTS/RESPONDENTS - DEFENDANTS :-
1 VAITUS, AGED 58 YEARS, S/O.PETER, VIHAS MANDIRAM,
MAYYANAD P.O, KOLLAM-691303.
2 HELEN VAITUS, AGED 53 YEARS, W/O.VAITUS,
VIHAS MANDIRAM, MAYYANAD P.O, KOLLAM-691303.
3 SHYMI BIJU, AGED 34, D/O. HELEN VAITUS AND W/O.
BIJU, BINSY NIVAS, MANCHADIMOOD, PARAVUR,
KOLLAM DISTRICT,
PIN-691301.
4 SHYNI JERRY, AGED 32, W/O.JERRY,
MARY LAND, PRAKKULATH CHERRY, THRIKKARUVA VILLAGE,
KOLLAM., PIN-691601.
R3-4 BY ADV. SRI.PRATHEESH.P
R3-4 BY ADV. SMT.S.SEETHA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-11-2020,
THE COURT ON 19-11-2020 DELIVERED THE FOLLOWING:
O.P.(C) No.359/2019
2
"CR"
R.NARAYANA PISHARADI, J
************************
O.P.(C) No.359 of 2019
-----------------------------------------------------
Dated this the 19th day of November, 2020
JUDGMENT
The petitioners are the plaintiffs and the respondents are the defendants in the suit O.S.No.466/2010 on the file of the Sub Court, Kollam.
2. The suit was for realisation of money. The case was referred to Lok Adalat. The plaintiff and the second defendant only appeared before the Lok Adalat. On the basis of the settlement of dispute between them, on 15.10.2010, the Lok Adalat passed Ext.P1 award in the following terms.
"Plaintiff and counsel present. D2 and counsel present. Parties settled the case out of court for an amount of Rs.21,04,000/- (Twenty one lakhs and four thousand only) out of which 6,04,000/- (Rupees six lakhs and four thousand only) shall be paid on or O.P.(C) No.359/2019 3 before 25.10.2010 and the balance amount of Rs.15,00,000/- (Rupees fifteen lakhs) shall be paid by the defendants within two years from today failing which the plaintiffs are at liberty to realise the entire amount of Rs.21,04,000/- with interest @ 30% per annum from the date of default till the date of realisation from the defendants and their assets. Attachment of PSP will be lifted on payment of the amount of Rs.6,04,000/- as stated above. Court fee will be refunded as per rules."
3. On 22.10.2010, the trial court passed the following order in the suit.
"Case settled in the Adalath. Award Passed. So closed."
4. On 20.01.2018, the plaintiffs filed an application as I.A.No.80/2018 (Ext.P3) to set aside the order dated 22.10.2010 passed by the trial court by which it closed the suit and to proceed with the suit against defendants 1, 3 and 4.
5. On 10.12.2018, as per Ext.P4 order, the trial court dismissed Ext.P3 application.
6. The plaintiffs have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P4 order.
O.P.(C) No.359/20194
7. A third party has filed an application as I.A.No.3/2019 in the original petition to implead her as the additional fifth respondent.
8. The counsel for the contesting respondents did not appear at the time of hearing of the original petition. Heard learned counsel for the petitioners and also the third party.
9. The operative portion of Ext.P4 order reads as follows:
"In this case, on 15.10.2010 an award has been passed by the Adalath and on 22.10.2010 this court closed the suit. As per S.21 of the Legal Service Authorities Act, every award of the Lok Adalath shall be deemed to be a decree of a civil court and S.21(2) of the said Act states that every award made by a Lok Adalath shall be final and binding on all the parties to the dispute. Since the award passed by the Lok Adalath became final, this court cannot entertain this petition. The petition is not maintainable and is liable to be dismissed. Accordingly petition is dismissed."
10. Neither the plaintiffs nor the defendants challenged the validity of Ext.P1 award in appropriate proceedings. Ext.P1 award of the Lok Adalat has become final.
O.P.(C) No.359/20195
11. Section 20(3) of the Legal Services Authorities Act, 1987 (for short 'the Act') provides that, where any case is referred to a Lok Adalat under sub-section (1), it shall proceed to dispose of the case and arrive at a compromise or settlement between the parties. Section 20(4) of the Act states that, every Lok Adalat shall, while determining any reference before it under the Act, act with utmost expedition to arrive at a compromise or settlement between the parties.
12. Section 21(1) of the Act provides that, every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or order of any other Court. Section 21(2) of the Act states that, 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.
13. Clause (2) of Regulation 17 of the National Legal Services Authority (Lok Adalats) Regulations, 2009 provides that, when both parties sign or affix their thumb impression and the members of the Lok Adalat countersign it, it becomes an award. It further provides that, wherever the parties are represented by O.P.(C) No.359/2019 6 counsel, they should also be required to sign the settlement or award before the members of the Lok Adalat affix their signature.
14. Clause 33(1) of the Kerala State Legal Services Authority Regulation, 1998 provides that, every award of the Lok Adalat shall be signed by the parties to the dispute and the panel constituting the Lok Adalat.
15. In the instant case, Ext.P1 award is signed only by the plaintiffs and the second defendant. The other defendants in the suit had not signed it. The award itself shows that the plaintiffs and the second defendant had settled the case and it was on the basis of such settlement that Ext.P1 award was passed by the Lok Adalat.
16. While passing Ext.P4 order, the lower court has made a literal interpretation of Section 21(2) of the Act to find that Ext.P1 award is binding on "all the parties to the dispute" and it is binding on those parties to the suit who have not even signed the award.
17. If the expression "all the parties to the dispute" in Section 21(2) of the Act is given a literal interpretation, absurd O.P.(C) No.359/2019 7 results may sometimes follow. While interpreting the expression "all the parties to the dispute" in Section 21(2) of the Act, it would be necessary to consider who are the parties to the award and who have signed it. If the award is passed by the Lok Adalat on the basis of the compromise or settlement entered into between the plaintiff and one of the several defendants, a literal interpretation of the expression "all the parties to the dispute" in Section 21(2) of the Act would lead to the result that the award is binding on the defendants who were not parties to the compromise or settlement and who have not signed the award. It can never be the intention of the Legislature in using the expression "all the parties to the dispute" in Section 21(2) of the Act.
18. It is true that where the language is clear and unequivocal, effect must be given to the express provision of a statute, unhampered by any equitable considerations. The question of convenience has no scope where the language is clear and the meaning of the legislation is unambiguous. The normal rule of interpretation is that the words used by the O.P.(C) No.359/2019 8 Legislature are generally a safe guide to its intention. It is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, original or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. However, where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence (See Pentiah v. Muddala Veeramallappa :
AIR 1961 SC 1107). The 'Lakshman Rekha' in interpretation of the words of a statute has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon, where the Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result (See Eera v. State :O.P.(C) No.359/2019 9
AIR 2017 SC 3457).
19. Where the plain literal interpretation of a statutory provision produces a manifestly unjust or absurd result which could never have been intended by the Legislature, having regard to the context of the provision, the court has to modify the language used by the Legislature to produce a rational result.
20. The manifest objective of Lok Adalats constituted under Section 19 of the Act is to have speedy resolution of the disputes with added advantage of cutting the cost of litigation. The provisions contained in Section 20 of the Act, as a whole, indicate that the Lok Adalat can dispose of a case referred to it only on the basis of a compromise or settlement arrived at between the parties. The settlement or compromise arrived at between the parties by consensus is the very basis of an award of a Lok Adalat. A Lok Adalat determines a reference on the basis of a compromise or 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 Adalat is not able to arrive at a settlement or compromise, no award is made and the O.P.(C) No.359/2019 10 case record is returned to the Court from which the reference was received, for disposal in accordance with law. Section 20 of the Act contemplates a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with the guidance and assistance from the Lok Adalat (See State of Punjab v. Jalour Singh : AIR 2008 SC 1209).
21. "Compromise" means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. A compromise is always bilateral and means mutual adjustment. "Settlement" is termination of legal proceedings by mutual consent (See State of Punjab v. Ganpat Raj : AIR 2006 SC 3089). A compromise or settlement is nothing but an agreement between the parties (See Jacob v. Najma : 2010 (3) KHC 509 : 2010 (3) KLT 475). A compromise or settlement will not be binding on a person who is not a party to it (See Arjan Singh v. Punitahluwalia : AIR 2008 SC 2718). A compromise between some parties alone cannot affect the position of the other parties to the suit. They are neither bound O.P.(C) No.359/2019 11 by it nor are entitled to enforce it.
22. When the expression "all the parties to the dispute"
used in Section 21(2) of the Act is interpreted in the context of the provisions contained in Section 20 of the Act and the object and the purpose of Lok Adalats, it can only mean "all the parties to the dispute" who have signed the award.
23. In the instant case, the award passed by the Lok Adalat, on the basis of the settlement between the plaintiffs and the second defendant, is not binding on the other defendants who were not parties to such settlement or compromise and who have not signed the award.
24. Sub-section (2) of Section 2 of the Code of Civil Procedure, 1908 (for short 'the Code') defines a decree as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Explanation to this provision states that a decree is preliminary when further proceedings have to be taken before the suit can be completely O.P.(C) No.359/2019 12 disposed of and it is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
25. In a given case a decree may be both preliminary and final. A decree may also be partly preliminary and partly final (See Rachakonda Venkat Rao v. Satya Bai : AIR 2003 SC 3322 and Hasham Abbas Sayyad v. Usman Abbas Sayyad :
AIR 2007 SC 1077).
26. An award passed by the Lok Adalat on the basis of compromise or settlement between the plaintiff and one of 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 defendant who has signed it. Such an award does not completely dispose of the suit.
27. There can be more than one decree passed at different stages of the same suit. Nothing precludes some of the parties to the suit to enter into a compromise. The law permits it. In Bai Chanchal v. Syed Jalaluddin: AIR 1971 SC 1081, it has been observed as follows:
O.P.(C) No.359/201913
"In the present case, the first decree of 8th July, 1946 was based on a compromise between the plaintiffs and some of the defendants, while the second decree dated 28th January, 1949 decided the rights of the remaining defendants. The two decrees were separate and independent and neither of them could be treated as a nullity".
(emphasis supplied)
28. A partial compromise of a suit by a lawful agreement is permissible (See Chintamani Dora v. Guntreddi Annamanaidu : AIR 1974 SC 1069). There may be two decrees in one suit, a consent or compromise decree and a decree on contest. The court can pass a decree based on a compromise arrived at with one set of defendants, followed by a separate decree vis-a-vis the other set of defendants (See Krishna Ponnuswamy v. Punitha Anand : 2017 SCC OnLine Madras 36001).
29. A compromise to which some of the parties to the suit alone are parties, is not necessarily invalid. When the dispute between the plaintiff and one of the defendants is settled, the O.P.(C) No.359/2019 14 other defendants cannot challenge the compromise or settlement unless such compromise or settlement prejudicially affects their interest (See Shri Sachidanand Vidya Shankar Bharati v. Shri Vidya Narsinha Bharati : AIR 1927 PC 57).
30. However, a partial compromise prejudicial to the interests of other parties not joining the same cannot be recognized. There may be cases where a suit had been adjusted wholly or in part by certain of the parties and due to which the other parties may be affected by the recording of compromise by virtue of the nature of the suit, nature of the reliefs prayed for, the subject matter of the suit and the cause of action being joint and indivisible or for any other reason of the like nature. Similarly, where the interests of the several parties to a suit are inseparable, it is not open to some of them alone to compromise the matter.
31. It is possible for one or more of the several defendants in the suit to satisfy the plaintiffs without affecting the other defendants who are not co-operating with the Alternative Dispute Resolution mechanism (See Ammaloo v. Subhadra : 2008 (2) O.P.(C) No.359/2019 15 KHC 828 : 2008 (3) KLT 233).
32. Any party, whose case is not settled before the Lok Adalat, has right to have his case continued before the court and have a decision on merits (See Moideen Sevamandir v. A.M.Kutty Hassan : (2009) 2 SCC 198).
33. When there are more than one defendant in a suit, the plaintiff can have settlement with any number of them and such a settlement can always be recorded. In such a case, award can be passed by the Lok Adalat against those defendants who have entered into the compromise or settlement with the plaintiff. The suit shall proceed in respect of the rest of the defendants.
34. When the award passed by the Lok Adalat is not signed by all the parties to the suit, the suit is not finally or completely disposed of by such award. The trial court should have continued the proceedings in the suit as against the defendants who did not sign the award without being influenced in any manner by the terms of the award.
35. The discussion above leads to the conclusion that the order passed by the trial court on 22.10.2010, closing the suit on O.P.(C) No.359/2019 16 the basis of Ext.P1 award, was not proper and legal. The reasons stated by the trial court in the impugned order for dismissing Ext.P3 application are not sound.
36. But, it is not the end of the matter. Though the order dated 22.10.2010 passed by the trial court is not legal and the reasons stated by the trial court for dismissing Ext.P3 application cannot be approved, it does not mean that the application is maintainable before the trial court. The question arises whether an application under Section 151 of the Code for setting aside an illegal or wrong order is maintainable or not before the trial court which passed that order. The prayer made in Ext.P3 application is for setting aside the order dated 22.10.2010 passed by the trial court. It is an application filed under Section 151 of the Code, that too, after a period of more than seven years. The question, whether such an application made under Section 151 of the Code with a prayer for setting aside an earlier order passed by the trial court, that too, after a period of seven years of passing the earlier order, is maintainable or not, requires consideration by the trial court.
O.P.(C) No.359/201917
37. Consequently, the original petition is allowed and Ext.P4 order is set aside. Ext.P3 application is restored to the file of the trial court. The trial court shall consider Ext.P3 application afresh and dispose of it in accordance with law.
38. The application I.A.No.3/2019 filed by the third party for getting impleaded in the original petition is dismissed by a separate order. All other interlocutory applications pending in the original petition are closed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr O.P.(C) No.359/2019 18 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF AWARD DATED 15-10-2010 OF THE LOK-ADALATH EXHIBIT P2 TRUE COPY OF 'B' DIARY PROCEEDINGS IN O.S.NO.466 OF 2010 OF PRINCIPAL SUB COURT, KOLLAM.
EXHIBIT P3 TRUE COPY OF I.A.NO.80 OF 2018 IN
O.S.NO.466 OF 2010 TO SET ASIDE THE
ORDER DATED 22-10-2010 FILED BEFORE THE
PRINCIPAL SUB COURT, KOLLAM.
EXHIBIT P4 TRUE COPY OF ORDER DATED 10-12-2018 IN
I.A NO.80/2018 IN O.S.NO.466 OF 2010 OF
THE PRINCIPAL SUB COURT, KOLLAM.
RESPONDENTS' EXHIBITS: NIL
TRUE COPY
PS TO JUDGE