Andhra Pradesh High Court - Amravati
B Srinatha Reddy vs The District Legal Service Authority on 18 September, 2019
Author: Cheekati Manavendranath Roy
Bench: C.Praveen Kumar, Cheekati Manavendranath Roy
* THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ Writ Petition No.2445 of 2019
% Dated 18-09-2019.
# B.Srinatha Reddy
..... Petitioner
Vs.
$ 1. The District Legal Service Authority, Kadapa, rep. by its
Secretary, Kadapa & ors.
..Respondents
! Counsel for the petitioner : Sri K.Sitaram
^ Counsel for the 1st respondent : Sri S.Lakshminarayana Reddy
Counsel for the 2nd respondent: Sri P.V.V. Vara Prasad
<GIST:
> HEAD NOTE:
? Cases referred
1. 2017 SCC Online 1053 = Judgment of the Supreme Court dated
07.09.2017 in Civil Appeal No.11345 of 2017.
2. AIR 1955 SC 425
3. AIR 1969 Patna 228
4. (2012) 190 DLT 367
5. AIR 2001 Karnataka 407
2
HACJ & CMR,J.
W.P.No.2445 of 2019
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
Writ Petition No.2445 of 2019
B.Srinatha Reddy
..... Petitioner
Vs.
1. The District Legal Service Authority, Kadapa, rep. by its
Secretary, Kadapa & ors.
..Respondents
ORDER PRONOUNCED ON: 18-09-2019
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1. Whether Reporters of Local newspapers ----
may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked - yes -
to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see the - yes -
fair copy of the Judgment?
JUSTICE CHEEKATI MANAVENDRANATH ROY
3
HACJ & CMR,J.
W.P.No.2445 of 2019
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Writ Petition No.2445 of 2019
ORDER:(per Hon'ble Sri Justice Cheekati Manavendranath Roy) Lok Adalat settlements bring in its wake litigation galore. This is yet another writ petition which questions the legal validity of the award passed by the Lok Adalat Bench on the ground of fraud, violation of principles of natural justice and contravention of procedural prescriptions of law causing grave injustice to the parties to the litigation.
This Writ Petition under Article 226 of the Constitution of India is filed seeking a writ of certiorari to declare the award dated 03.12.2016 passed by the Lok Adalat Bench, Kadapa in O.S.No.192 of 2011 on the file of the Additional Senior Civil Judge, Kadapa, is illegal, arbitrary and obtained by playing fraud on Court and it is violative of principles of natural justice and consequently to quash the said award.
Brief overview of the facts leading to the lis in this Writ Petition may be stated as follows:
This is a litigation between three brothers. The 2nd respondent herein filed a Suit in O.S.No.192 of 2011 on the file of the Additional Senior Civil Judge, Kadapa, for partition of the ancestral joint family property against his two brothers who are the petitioner herein, the 2nd defendant in the Suit, and the other brother the 1st defendant in the suit. 4
HACJ & CMR,J.W.P.No.2445 of 2019
For the sake of convenience, the parties in this Writ Petition will be referred to as they are arrayed in O.S.No.192 of 2011 on the file of the Additional Senior Civil Judge Court, Kadapa.
The plaintiff in O.S.No.192 of 2011, has filed the Suit for partition against his two brothers, who are the first and second defendants therein, claiming 1/3rd share in the suit schedule property on the ground that the suit schedule property is their ancestral joint family property. It is, inter alia, pleaded in the plaint that the 2nd defendant is trying to alienate certain portion of the suit schedule property and that the plaintiff learnt that the 2nd defendant has already entered into an agreement of sale in respect of a portion of the suit schedule property with a third party. So, when the plaintiff made an attempt to effect partition of the suit schedule property, the defendants did not cooperate for partition of the joint family properties. Therefore, he has filed the Suit for partition.
When the said Suit was originally instituted in the Court, he has shown only the property which is shown in Schedule-I of the plaint schedule as their ancestral joint family property. The said property is a landed property covered by various survey numbers situate in Vallur Village and Mandal, Kadapa District.
When the Court ordered summons to defendant Nos.1 and 2 in the said Suit, the 1st defendant made his appearance 5 HACJ & CMR,J.W.P.No.2445 of 2019
in the Suit and he has filed his written statement admitting that the suit schedule property is their ancestral joint family property and that the same devolved on him and his two brothers after the demise of their father late B.Narasimha Reddy and that all of them are enjoying the said joint family property together. In a way he has agreed for partition of the said property and for allotment of 1/3rd share to each of the two defendants and the plaintiff. However, the summons issued to the 2nd defendant, who is the petitioner herein, was returned by the Process Server with his report that he refused to receive the summons. Therefore, considering the report of the Process Server that the 2nd defendant refused to receive the summons, he was set ex parte in the Suit.
Thereafter, when the Suit is posted for trial, the plaintiff filed various interlocutory applications one after the other in I.A.No.132 of 2014, I.A.No.2291 of 2016 and I.A.No.2771 of 2016 under Order VI Rule 17 CPC seeking amendment of the plaint to include some more landed and house property in the suit schedule on the ground that he subsequently came to know that the said property is also joint family property and that it was not shown in the suit schedule when the Suit was filed. The 1st defendant reported no objection in all those interlocutory applications. The trial Court did not issue any notice to the 2nd defendant before entertaining those interlocutory applications filed under Order VI Rule 17 CPC to include the said land and house property in the suit schedule 6 HACJ & CMR,J.W.P.No.2445 of 2019
obviously on the ground that the 2nd defendant was set ex parte. Therefore, as the 1st defendant reported no objection, the trial Court allowed all the aforesaid interlocutory applications by cryptic orders and permitted the plaintiff to amend the plaint and include the said property also in the suit schedule. Consequently, Item II of the suit schedule property bearing House No.93-MIGH-II with Assessment No.3119 covered by Door No.1/2244 and Item III of the suit schedule landed property covered by various survey numbers and one house bearing Door No.3/30 situate in Reddyvari Street, Vallur Village and Mandal, Kadapa District, and the lands shown in Item IV of the suit schedule were included in the suit schedule properties as per the orders passed in I.A.No.132 of 2014, dated 17.07.2014, I.A.No.2291 of 2016 dated 26.09.2016 and I.A.No.2771 of 2016 dated 29.11.2016 respectively. The 2nd defendant, who was set ex parte, had no notice of filing these applications and adding of these Item II to IV schedule properties in the suit schedule subsequently.
Thereafter, the plaintiff has filed a memo before the trial Court to refer the Suit to Lok Adalat for settlement of the dispute. The 1st defendant reported no objection for the same. As the 2nd defendant was set ex parte in the Suit, the trial Court did not issue any notice to him seeking his consent for referring the Suit for settlement to the Lok Adalat. As both the plaintiff and the 1st defendant agreed for settlement in Lok 7 HACJ & CMR,J.
W.P.No.2445 of 2019Adalat, the trial Court referred the Suit to the District Legal Services Authority, Kadapa for settlement.
On 03.12.2016 the plaintiff and the 1st defendant appeared before the Lok Adalat Bench, Kadapa along with their respective counsel. Upon considering the terms of compromise arrived at between the plaintiff and the 1st defendant, the impugned award was passed by the Lok Adalat Bench in terms of the compromise arrived at between the plaintiff and the 1st defendant decreeing the Suit for partition of the suit schedule properties, which are shown in Schedules I to IV in the amended plaint and allotting 1/3rd share in the said properties to the plaintiff and defendant Nos.1 and 2 respectively.
Thereafter, the plaintiff has filed a petition in I.A.No.1085 of 2018 in O.S.No.192 of 2011 under Order XXVI Rule 13 CPC for passing final decree in terms of the award dated 03.12.2016. Notice in the said final decree petition was served on the 2nd defendant. At that time he came to know about passing of the award in O.S.No.192 of 2011 and he immediately applied for certified copies of the docket order in the Suit and for other relevant documents and came to know that he was set ex parte in the Suit. It is the case of the 2nd defendant that the house which is purchased by him along with his uncle under registered sale deed which is his exclusive property was also included subsequently in the suit schedule. It is his further case that he never refused to take 8 HACJ & CMR,J.
W.P.No.2445 of 2019the summons in the Suit and that the report of the Process Server that he refused to take notice was manipulated.
Therefore, he asserts that fraud was played on him and the Court in managing to set him ex parte in the Suit by the plaintiff and that thereafter, Item II to IV Schedule properties were included in the suit schedule after he was set ex parte and both the plaintiff and the 1st defendant got the Suit referred for settlement to the Lok Adalat Bench, Kadapa and managed to pass the award dated 03.12.2016 behind his back. It is his grievance that no notice was issued to him by the District Legal Services Authority, Kadapa before passing the award by the Lok Adalat Bench and as such the procedure prescribed under law and the principles of natural justice are violated. So, the award dated 03.12.2016 is vitiated by fraud and it is illegal and it is violative of principles of natural justice.
As the award passed by the Lok Adalat is final and no appeal lies in view of the bar contained in Section 21 of the Legal Services Authority Act, 1987 (for short "the 1987 Act"), as per law declared by the Supreme Court in the case of Bhargavi Constructions v. Kothakapu Muthyam Reddy1 the award of the Lok Adalat can only be challenged by filing a Writ Petition under Article 226 of the Constitution of India. Therefore, he has invoked the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India to 12017 SCC Online 1053 = Judgment of the Supreme Court dated 07.09.2017 in Civil Appeal No.11345 of 2017.
9
HACJ & CMR,J.
W.P.No.2445 of 2019declare that the said award is illegal and obtained by playing fraud and that it is violative of principles of natural justice and consequently to quash the same.
We have heard Sri K.Sitaram, learned counsel for the petitioner-2nd defendant; Sri S.Lakshmi Narayana Reddy, learned standing counsel for 1st respondent and Sri P.V.V. Vara Prasad, learned counsel for the 2nd respondent-plaintiff.
Having regard to the importance of the issue involved in this Writ Petition as it is alleged that the impugned award passed by the Lok Adalat Bench, Kadapa was passed behind the back of the 2nd defendant and that it was obtained by playing fraud on him and the Court, we have given our earnest and thoughtful consideration to the debatable and contentious legal issues raised by both the parties in this Writ Petition.
In the backdrop of the above factual scenario, the seminal question that falls for our determination in this Writ Petition is whether the award dated 03.12.2016 passed by the Lok Adalat Bench, Kadapa is vitiated by fraud, non- compliance with procedural prescriptions of law, violation of principles of natural justice and whether it is valid and whether the same is liable to be quashed.
The relationship between the parties to the Suit is not in controversy. Admittedly, the plaintiff and defendant Nos.1 and 2 are the brothers. Although the 2nd defendant contends that summons is not served on him in O.S.No.192 of 2011 and that he did not refuse to receive the summons when the Process 10 HACJ & CMR,J.
W.P.No.2445 of 2019Server served the same on him, the evidence on record belies the said contention. The report dated 26.05.2011 of the Process Server to whom the summons is entrusted to serve on the 2nd defendant in the trial Court is produced by the petitioner himself and it is made available in the material papers filed along with this Writ Petition. He categorically stated in the said report that as per orders of the Court that he went to the village on 25.05.2011 and on enquiry he found that the 1st defendant is residing in Hyderabad and he enquired about the 2nd defendant-the petitioner herein, and after identifying him when he tried to serve summons on him, he refused to take the same stating that the dispute is between the brothers and that they are trying to settle the same and as such he need not take the summons and thereby violated the orders of the Court. Based on the said report of the Process Server, the trial Court has set the 2nd defendant ex parte on 10.06.2011 in the Suit as he was called absent on that day. The office has also endorsed on the docket of the Suit that the 2nd defendant refused to take the summons. Therefore, he was set ex parte in the Suit.
The Process Server, who has submitted the above report to the trial Court, is a public servant and in discharge of his official duty, he served the summons on the 2nd defendant and as he refused to take the same, he has given the above report to the trial Court. Therefore, as the above report was given by a Process Server, who is a public servant in discharge of his 11 HACJ & CMR,J.
W.P.No.2445 of 2019official duty, it shall be presumed under Section 114(e) of the Evidence Act that the said official act has been regularly performed. So, it shall be presumed that the said report is genuine. Although it is a rebuttable presumption, the 2nd defendant, who is the petitioner herein, failed to displace the said presumption either by adducing any direct evidence or by any preponderance of probabilities to show that the said report of the Process Server is wrong and that it was manipulated to see that the 2nd defendant is set ex parte. Therefore, we have no hesitation to hold that as the 2nd defendant refused to take the summons in the Suit that he was set ex parte.
Now the crucial question that incidentally arises for consideration in this Writ Petition is, whether the trial Court is justified in allowing the interlocutory applications, which are subsequently filed by the plaintiff after the 2nd defendant was set ex parte, to amend the plaint and to permit him to include various other properties which are shown in Item II to IV Schedules of the suit schedule. As fraud is alleged in managing to get some more property included in the suit schedule after the 2nd defendant was set ex parte without giving notice to him and behind his back and thereafter managing to refer the Suit for settlement in Lok Adalat, this question assumes significance to consider whether any such fraud is played by the plaintiff and the 1st defendant.
It is already noticed supra while narrating the facts of the Writ Petition that when the plaint was originally instituted 12 HACJ & CMR,J.
W.P.No.2445 of 2019by the plaintiff for partition of the property, he has shown only Item-I of Schedule property, which is the landed property in the plaint schedule. After the 2nd defendant was set ex parte he has filed petitions one after another in I.A.No.132 of 2014, I.A.No.2291 of 2016 and I.A.No.2771 of 2016 under Order VI Rule 17 CPC seeking permission of the Court to amend the plaint to include some more landed and house property in the suit schedule. Notice was given in all those interlocutory applications only to the 1st defendant. The trial Court did not order notice to the 2nd defendant. Obviously no notice was ordered to the 2nd defendant, the petitioner herein, in the said interlocutory applications, as he was set ex parte in the Suit. So, the 2nd defendant has absolutely no knowledge of filing these interlocutory applications subsequently in the suit to include Item II to IV Schedule properties in the suit schedule. As the 1st defendant reported no objection in all the interlocutory applications, the trial Court allowed the said interlocutory applications by cryptic orders solely on the ground that they are not opposed by the 1st defendant and permitted the plaintiff to amend the plaint schedule and to include Item II to IV Schedule properties in the suit schedule. As the Suit is for partition of the joint family property and as 2nd defendant is a co-sharer in the said property, when the plaintiff sought to include some more landed and house property in the suit schedule subsequent to filing of the Suit, prudence requires and principles of natural justice also 13 HACJ & CMR,J.
W.P.No.2445 of 2019require issuance of notice to the 2nd defendant, albeit he was set ex parte. The trial Court is completely swayed away by the fact that the 2nd defendant was set ex parte in the Suit and did not issue notice to him before allowing the said interlocutory applications and permitting the plaintiff to include valuable property shown in Item II to IV in the suit schedule. This shows total non-application of mind to the relief claimed by the plaintiff for including some more property in the suit schedule after the 2nd defendant was set ex parte in the Suit. It appears that the trial Court has very casually and in a routine manner allowed those interlocutory applications without bestowing its attention to consider whether under law a notice is required to be given to the 2nd defendant also although he was set ex parte or not. As a corollary it is to be held that Item II to IV Schedule properties of the plaint schedule are subsequently included in the suit schedule behind the back of the 2nd defendant without notice to him after he was set ex parte. As the 1st defendant also reported no objection, it throws any amount of doubt regarding collusion between the plaintiff and the 1st defendant as contended by the 2nd defendant, who is the petitioner herein, that there was a conclusion between the plaintiff and the 1st defendant in including those properties subsequently behind the back of the 2nd defendant after he was set ex parte. No valid reason is shown by the plaintiff for not showing Item II to IV schedule properties in the plaint schedule at the time of filing the Suit. In his interlocutory 14 HACJ & CMR,J.
W.P.No.2445 of 2019applications, he only stated in a vague manner that he subsequently came to know that the said property is also joint family property. The said reason assigned for his omission to include those properties in the suit schedule at the time of filing the Suit is not convincing. He has very designedly filed petition after petition subsequently to include three properties one by one. As a member of the joint family, he would have full knowledge of his family properties which are available in the same village where he is residing. So, it cannot be said that he subsequently came to know that they are also the joint family property. It appears that after the 2nd defendant was set ex parte, he has taken advantage of the said fact and started including property one after the other. The 1st defendant also cooperated with him and reported no objection. Therefore, in the facts and circumstances of the case, there is any amount of justification in the contention of the petitioner that both the plaintiff and the 1st defendant colluded together to include the said property behind his back, as contended before this Court. We also find justification in his grievance that his alleged separate and exclusive property which is the house shown in Item II of plaint schedule said to have been purchased by him and his uncle under a registered sale deed was also included in the plaint schedule behind his back.
In the light of the above factual background, it is essential to examine whether a defendant who fails to appear before the Court on the first hearing date on receipt of 15 HACJ & CMR,J.
W.P.No.2445 of 2019summons from the Court and who was set ex parte by the Court ceases to be a party to the Suit and whether he is not entitled to notice in the subsequent interlocutory applications filed by the plaintiff or not. In this context, Order IX Rule 6(i)(a) and Order IX Rule 7 are the relevant provisions in the Civil Procedure Code to consider. For better appreciation both the above provisions are extracted hereunder in juxtaposition and they read thus:
Order IX Rule 6(1)(a) CPC Order IX Rule 7 CPC 6. Procedure when only 7. Procedure where plaintiff appears defendant appears on day of (1) Where the plaintiff appears adjourned hearing and and the defendant does not assigns good cause for appear when the suit is called previous non-appearance on for hearing, then - Where the court has (a) When summons duly adjourned the hearing of the served--If it is proved that the suit ex parte, and the summons was duly served, defendant, at or before such the court may make an order hearing, appears and assigns that the suit be heard good cause for his previous ex parte; non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
A bare perusal of Order IX Rule 6(1)(a) CPC makes it manifest that when a defendant does not appear when the Suit is called on for hearing on receipt of summons from the Court, an order under Order IX Rule 6(1)(a) that "the suit be heard ex parte" is to be passed. No formal order of setting the defendant ex parte is contemplated under CPC. However, it has been in practice in all the trial Courts to set the defendant ex parte if he fails to appear on the date of first hearing on 16 HACJ & CMR,J.
W.P.No.2445 of 2019receipt of summons from the Court. It appears that it is a misnomer. The appropriate order that could be passed by the Court in the said circumstances is that "the suit be heard ex parte" under Order IX Rule 6(1)(a) of CPC.
In similar context, the three Judge Bench of the Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah2 while dealing with Order IX Rule 6(1)(a) and Order IX Rule 7 CPC held as follows:
"When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ex parte decree or other ex parte order which the Court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties. The contrast in language between Rules 7 and 13 emphasises this."
The Apex Court further held that "ex parte" merely means in the absence of other party. So, if the defendant does not appear at the first hearing, the Court can proceed "ex parte", which means that it can proceed without a written statement; and Order IX Rule 7 CPC makes it clear that unless good cause is shown, the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court feels a written statement should have been put in, the consequences entailed by Order VIII Rule 10 must be suffered. 2 AIR 1955 SC 425 17 HACJ & CMR,J.
W.P.No.2445 of 2019Therefore, from the ratio laid down in the above judgment by the Supreme Court, it is now clear that when the defendant fails to appear on receipt of summons, the appropriate order that could be passed is that "suit be heard ex parte" as contemplated under Order IX Rule 6(1)(a) CPC.
Even after passing any such order to hear the suit ex parte as contemplated under Order IX Rule 6(1)(a) of CPC, the defendant is not precluded from participating in the proceedings of the Suit subsequently. If he files any petition under Order IX Rule 7 CPC to set aside the order passed under Order IX Rule 6(1)(a) showing good cause for his non- appearance on the date of first hearing and if the said order is set aside, then he can hark back the proceedings of the suit to the initial stage and file written statement and proceed with the trail of the Suit. Even if no such petition under Order IX Rule 7 CPC to set aside the order passed under Order IX Rule 6(1)(a) CPC is filed, still he can participate in the trial of the Suit from the stage where he appeared. However, he cannot relegate the proceedings of the Suit to the initial stage.
The legal position in this regard is not res nova and it has been already well entrenched. A three-Judge Bench of the Supreme Court in the above referred case of Sangram Singh v. Election Tribunal, Kotah, elaborately dealt with the provisions of Civil Procedure Code particularly Order IX CPC and authoritatively held as follows:
"If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the 18 HACJ & CMR,J.W.P.No.2445 of 2019
proceedings simply because he did not appear on the first some other hearing. Though he has a right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9, Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in."
It is further held that Rule 7 of Order IX CPC provides that if at an adjourned hearing the defendant appears and shows good cause for his "previous non-appearance", he can be heard in answer to the Suit "as if he had appeared on the day fixed for his appearance". This cannot be read to mean that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. If a party does appear on "the day to which the hearing of the Suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
Therefore, from the law enunciated by the Apex Court in the above judgment, the legal position is abundantly made clear that if an order that Suit be heard ex parte owing to non- appearance of the defendant on receipt of summons from the Court under Order IX Rule 6(1)(a) CPC is passed, he can file a petition under Order IX Rule 7 CPC to set aside the said order and if the said order is set aside, he can file a written statement and he can proceed with the proceedings of the Suit. Even if he does not file a petition under Order IX Rule 7 CPC, he is not precluded from participating in the proceedings 19 HACJ & CMR,J.
W.P.No.2445 of 2019of the Suit. However, his right is limited only to participate in the proceedings of the Suit from the stage when he enters in and he cannot relegate the proceedings of the Suit to the initial stage. The said right of the defendant is also restricted only to cross-examine the plaintiff and his witnesses on limited grounds on legal aspects. Therefore, it is luculent that notwithstanding the fact that the defendant failed to appear on the date of first hearing in response to the summons issued by the Court and a consequent order passed under Order IX Rule 6(1)(a) CPC to "hear the suit ex parte", the law still permits him to participate in the trial of the Suit. This legal position makes it explicit that he continues to be a party to the Suit for all practical purposes despite the fact that the Court ordered that the suit be heard ex parte.
So, the next question that arises for consideration is whether the defendant, against whom an order under Order IX Rule 6(1)(a) to hear the suit ex parte was passed on account of his non-appearance on receipt of summons, is entitled to a notice in the subsequent interlocutory applications filed by the plaintiff in the Suit, either for including some more property in the suit schedule or to add some more parties to the Suit etc. or not.
The legal position in this regard is also not res nova and it has been well settled. The High Court of Patna had an occasion to deal with the said issue and it is held that even if a party is set ex parte, and thereafter, if an amendment 20 HACJ & CMR,J.
W.P.No.2445 of 2019application is made, then that must be served on the party concerned even if the party remains absent despite notice, then the Court applying its discretion may pass an appropriate order. In Jharkhand Mines and Industries Ltd. v. Nand Kishore Prasad3, the High Court of Patna while dealing with the effect of passing of an ex parte order without service of notice at the time of the amendment of the suit, held as follows:
"It was incumbent on the Court to see to it that the notice of the amended plaint was served on the defendants of that suit. The Code of Civil Procedure, in my opinion, casts a duty on the court to see that the defendants are made aware of any amendment in the plaint, whether the amendment be in regard to the addition of parties or in regard to the contents thereof. Unfortunately, the learned Subordinate Judge, who passed the ex parte order, did not direct any notices to be issued to the defendants with a view to make them aware about the amendment of the plaint. He should have issued such notices and awaited the service report, and, if the defendants so desired, granted them an opportunity to file a written statement before putting up the suit for hearing and disposal, whether ex parte or otherwise. On this ground alone, I am of the opinion that the ex parte decree is vitiated and must be set aside."
Relying on the above judgment of the High Court of Patna, the Delhi High Court in the case of Flight Centre Travels P. Ltd. v. Rahul Nath4, held at para 28 of the judgment that notice to the defendants who are set ex parte is essential in subsequent interlocutory applications filed by the plaintiff. It is further held as follows:
"It is also the matter of record that no fresh notice was issued to the defendants at the time of filing and allowing the amendment to the plaint. It is settled position of law that issuance of fresh notice at the time of amendment of plaint is mandatory and any amendment allowed without allowing an opportunity to the opposite party to contest the same is negation of justice and illegal."
3 AIR 1969 Patna 228 4 (2012) 190 DLT 367 21 HACJ & CMR,J.
W.P.No.2445 of 2019So, in view of the above clear legal position, we hold that an order under Order IX Rule 6(1)(a) CPC passed by the Court that the Suit be heard ex parte does not make the defendant not a party to the Suit. He continues to be a party to the Suit for all practical purposes. Therefore, issuance of notice to the petitioner herein, the 2nd defendant in the Suit, in the interlocutory applications filed by the plaintiff under Order VI Rule 17 CPC to amend the plaint schedule to include some more property is essential and sine qua non under law. In contravention of the said requirement of law, the trial Court erroneously allowed the said interlocutory applications and permitted the plaintiff to amend the plaint to include some more valuable property in the suit schedule without notice to the 2nd defendant and without giving any opportunity to him to oppose the same. Therefore, we hold that Items 2 to 4 schedule properties are subsequently included in the suit schedule behind the back of the 2nd defendant without his knowledge.
Now it is relevant to note that after including Item II to IV properties in the suit schedule behind the back of the 2nd defendant without his knowledge, the plaintiff and the 1st defendant got the said Suit referred to Lok Adalat for settlement in terms of the compromise arrived at between both of them. The Lok Adalat Bench, Kadapa, passed the award dated 03.12.2016 in terms of the compromise arrived at by the plaintiff and the 1st defendant. Significantly, the Lok Adalat 22 HACJ & CMR,J.
W.P.No.2445 of 2019Bench also before settling the matter did not issue any notice to the 2nd defendant, who is admittedly a party to the Suit. Presumably on the assumption that the 2nd defendant was set ex parte in the Suit, no notice was issued to him by the Lok Adalat Bench, Kadapa also. The same can be inferred from the fact that it is recorded in the impugned award by the Lok Adalat Bench that the 2nd defendant was set ex parte. So, undoubtedly, the impugned award was also passed by the Lok Adalat Bench, Kadapa behind the back of the 2nd defendant, who is a party to the Suit and the award was passed without his consent.
So, the paramount question to be considered is whether the award passed by the Lok Adalat without issuing notice to the 2nd defendant is valid under law and whether it is legally sustainable or not. In order to test the validity of the said award on the said ground, it is appropriate to consider the relevant provisions in the Legal Services Authority Act, 1987 and the Regulations framed thereunder. As per Section 19(5) of the 1987 Act, 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 the Court or (ii) any matter which is falling within the jurisdiction of and is not brought before any Court for which the Lok Adalat is organized. In the instant case clause (i) applies as it is a matter pending before the Court. The words used in the above Section 19(5) "parties to 23 HACJ & CMR,J.
W.P.No.2445 of 2019dispute" are significant to note which means all the parties to the dispute. So, the Lok Adalat has to make an endeavour to arrive at a compromise or settlement between all the parties to the dispute. Section 20 of the 1987 Act deals with cognizance of cases by Lok Adalats. It postulates that where any case is referred to as per clause (i) of sub-section (5) of Section 19, if the parties thereof agree or if one of the parties thereof makes an application to the Court for referring the case to the Lok Adalat for settlement and if the Court is prima facie satisfied that the matter is an appropriate one to be taken cognizance by the Lok Adalat, the Court shall refer the case to the Lok Adalat. Now, it is relevant to consider the proviso to Section 20 of the Act which says that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such Court except after giving a reasonable opportunity of being heard to the parties. In view of settled legal position as already discussed supra, it is held that the 2nd defendant continues to be a party to the Suit despite the order setting him ex parte. So, his consent is essential to refer the Suit to Lok Adalat for settlement. He is entitled to be heard as per proviso to Section 20 of 1987 Act. So, without affording him an opportunity of being heard, Suit was referred to Lok Adalat for settlement.
Now it is important to note clauses (3) and (4) of Section 20 of the 1987 Act. Clause (3) of Section 20 mandates that when a case is referred to Lok Adalat under sub-section (1) by 24 HACJ & CMR,J.
W.P.No.2445 of 2019the Court, the Lok Adalat shall proceed to dispose of the case and arrive at a compromise or settlement between the "parties". Here again the word "parties" is consciously used by the Legislature which means all parties to the Suit. So, it should make an endeavour to secure the presence of all parties to the Suit for the settlement. The Lok Adalat did not secure the presence of the petitioner herein, who is the 2nd defendant in the Suit, even though he is a co-sharer according to the admitted case of the plaintiff. Clause (4) of Section 20 envisages that every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of natural justice, equity, fair play and other legal principles. Here also the word "parties" is used. So, while determining the reference, the Lok Adalat is under an obligation to follow the principles of justice, equity, fair play and other legal principles.
Regulation 31 of the A.P. State Legal Services Authority Regulations, framed in exercise of the powers conferred under Section 29-A of the Act also mandates that the Secretary of the District Legal Services Authority, who is convening and organizing Lok Adalat shall inform every litigant whose case is referred to the Lok Adalat well in time so as to afford him an opportunity to prepare himself for the Lok Adalat. The words "every litigant" referred above shall be construed as "every party to the Suit".
25
HACJ & CMR,J.
W.P.No.2445 of 2019Thus, the above referred provisions in the 1987 Act and the Regulation 31 in the A.P. State Legal Services Authority Regulations clearly indicate that a notice to a party to the Suit or the litigant is to be issued before referring the Suit to the Lok Adalat by the Court and also before settling the matter in the Lok Adalat. The mere fact that the 2nd defendant was set ex parte in the Suit by itself is not a valid ground to construe that he is not a party to the Suit or a litigant so as to hold that he is not entitled to any notice before the matter is settled in the Lok Adalat. Despite the order setting him ex parte in the Suit on account of his non-appearance, he continues to be a party to the Suit and a litigant relating to the said proceeding for all practical purposes. As held supra, the law is well settled that even if the defendant is set ex parte, still he is entitled to participate in the trial of the Suit. When that is the settled legal position, it cannot be said under any stretch of reasoning or any imagination that he ceased to be a party to the Suit and not entitled to notice before settlement of the dispute in the Lok Adalat. Therefore, we hold that the 2nd defendant continues to be a party to the Suit even after the order dated 10.06.2011 setting him ex parte in the Suit. When once the 2nd defendant is found to be a party to the Suit, despite the fact that he was set ex parte in the Suit, he is entitled to a notice before referring the matter to the Lok Adalat by the trial Court and also after referring the matter to the Lok Adalat. Regulation No.31 of the A.P. State Legal 26 HACJ & CMR,J.
W.P.No.2445 of 2019Services Authority Regulations, 1996 (for short, the "1996 Regulations") clearly mandates that notice is to be given by the Secretary of the District Legal Services Authority to every litigant when the matter was referred to it for settlement.
In utter violation of the procedure prescribed under the 1987 Act and the 1996 Regulations, the District Legal Services Authority did not issue any notice to the 2nd defendant after taking cognizance of the matter for settlement in terms of the compromise arrived at between the plaintiff and the 1st defendant. The impugned award was, therefore, passed without notice to the 2nd defendant who is a party to the Suit and who is a litigant to the said proceeding and it is also passed behind his back in the Lok Adalat. It is simply noted in the award that the 2nd defendant was set ex parte. It is to be noticed here that even in the impugned award a share was allotted to the 2nd defendant as the Suit was decreed in terms of the compromise granting 1/3rd share in the suit schedule property to the plaintiff and also to defendant Nos.1 and 2 each. So, it also indicates that even the Lok Adalat Bench treated the 2nd defendant as a party to the Suit. If it has not treated the 2nd defendant also as a party to the Suit, it could not have passed an award allotting 1/3rd share to him also. So, at the time of settlement of the dispute in the Lok Adalat, when the Lok Adalat Bench has considered and treated the 2nd defendant also as a party to the Suit, it ought to have issued notice to him before passing the impugned award. So, the 27 HACJ & CMR,J.
W.P.No.2445 of 2019facts and circumstances of the case show that the award under challenge was passed casually and mechanically without considering the legal implications of the said award. It smacks of complete non-application of mind by the Lok Adalat Bench to the facts and circumstances of the case.
At this juncture it is relevant to note that Section 20(4) of the 1987 Act imposes an obligation on the Lok Adalat that it shall be guided by the principles of justice, equity, fair play and other legal principles at the time of determining any reference made to it to arrive at a compromise or settlement between the parties. Therefore, the Lok Adalat cannot mechanically and casually pass awards in a routine manner. It has to apply its mind to the facts and circumstances of the case and the legal implications involved in the litigation to see that the legal rights of the parties are not jeopardized while passing awards as per the settlement arrived at by the parties. It should also ensure that all parties, whose presence is essential to resolve the controversy involved in the lis, are present before it at the time of determining any reference made to it to arrive at a compromise or settlement. It is a legal responsibility cast on it by the statute and the Lok Adalat cannot abrogate its duty imposed on it under Section 20(4) of the 1987 Act and other provisions of Act and Regulations as discussed above. While passing the impugned award, the Lok Adalat has completely given a go-by to these mandatory requirements of being guided by the principles of justice, 28 HACJ & CMR,J.
W.P.No.2445 of 2019equity, fair play and other legal principles. The award was passed in a casual and routine manner without properly applying its mind to the facts of the case.
So, apparently a grave error of law has been committed by the Lok Adalat Bench in passing the impugned award behind the back of the 2nd defendant without issuing notice to him as required under Law. This has resulted in causing substantial injustice to the 2nd defendant. It is his grievance in this Writ Petition that the house property bearing No.93 MIG-II situate in Kadapa bearing Door No.1/2244 was purchased by him and his uncle under a registered sale deed dated 07.07.2006 and it is his exclusive property and that the same was included in the suit schedule as per orders obtained by the plaintiff in I.A.No.132 of 2014, dated 17.07.2014, after he was set ex parte. So, the 2nd defendant had no opportunity to oppose the claim of the plaintiff to include the said property and other properties in the suit schedule either at the time of seeking amendment to the plaint or at the time of passing the award in the Lok Adalat as all those proceedings took place behind his back without notice to him. The chronology of events took place from the time when 2nd defendant was set ex parte in the Suit till the award was passed in Lok Adalat as discussed in detail supra show that great deal of fraud has been played by the plaintiff on the 2nd defendant. Non- application of mind by the Court and the Lok Adalat at various stages of the matter and violation of procedure of law by the 29 HACJ & CMR,J.
W.P.No.2445 of 2019Court and the Lok Adalat Bench as discussed supra also in a way contributed to the fraud played by the plaintiff. Therefore, the impugned award is vitiated for the aforesaid reasons.
The High Court of Karnataka had an occasion to deal with a similar case. In the case of Krishna Rao v. Bidar District Legal Services Authority5 it is held after elaborate discussion with reference to the provisions of the 1987 Act, that the award passed against defendants 1 and 3 therein to whom notices were not given is not binding on them and it is not effective and the same is illegal, null and void and inoperative to determine the dispute between the parties.
The facts of the above referred judgment are akin to the facts of the case on hand. In the case before the Karnataka High Court also, defendant Nos.1 and 3 were set ex parte. No notice was given to them by the Lok Adalat before settlement of the dispute. Award was passed without notice to them. So, the Karnataka High Court held that the said award is illegal, null and void and inoperative to determine the dispute between the parties to the Suit.
The upshot of the above discussion is that the award under challenge which was passed without notice to the petitioner herein, who is the 2nd defendant in the Suit, is vitiated by fraud, non-compliance with the prescribed procedure and violation of principles of natural justice. So, it 5 AIR 2001 Karnataka 407 30 HACJ & CMR,J.
W.P.No.2445 of 2019is not valid under law. Therefore, the impugned award is clearly unsustainable under law and it is liable to be quashed.
In the result, the Writ Petition is allowed declaring that the award dated 03.12.2016 passed by the Lok Adalat Bench, Kadapa, in O.S.No.192 of 2011 on the file of the Additional Senior Civil Judge Court, Kadapa, is illegal and violative of principles of natural justice and consequently the same is hereby quashed. No costs.
As we have come to a conclusion that the award is illegal, unsustainable and it is not valid and as it is quashed, as a sequel, the record of the Suit shall be returned to the trial Court under Section 20(5) of the 1987 Act for disposal according to law. It is left open to all parties to the Suit to work out their remedies according to law in the Suit. This case is a classic example which bespeaks as to how the trial Courts and the Lok Adalats are abrogating the law and the procedure in dealing with the Suits and the interlocutory applications and in determining settlements in Lok Adalats and passing illegal awards. Since we have noticed in this Writ Petition the casual and mechanical way in which the Suit was dealt with by the trial Court and also the casual and mechanical way in which the Lok Adalat also entertained and took cognizance of the reference made to it for settlement and passed the impugned award, without even ascertaining whether a notice is required to be given to the 2nd defendant although he remained ex parte, we deem it appropriate to 31 HACJ & CMR,J.
W.P.No.2445 of 2019direct the Member Secretary of the State Legal Services Authority to issue circular instructions to the Secretaries of all District Legal Services Authorities and also the Mandal Legal Services Authorities that they have to deal with the reference made to them of any Suit for settlement with utmost care by fully applying their mind to the dispute in question, issue notice to the defendant, who was set ex parte also and be guided by the principles of justice, equity, fair play and other legal principles, as contemplated under Section 20(4) of the 1987 Act.
Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR ________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:18-09-2019.
Note:
(1) L.R. copy to be marked.
(2) Mark a copy of this Order to the Member Secretary, A.P. Legal Services Authority.
B/O cs 32 HACJ & CMR,J.
W.P.No.2445 of 2019