Jammu & Kashmir High Court
Ghulam Ahmad Mir And Ors. And Mohd. ... vs Altaf Hussain Mir And Ors. on 22 September, 2003
Equivalent citations: 2004(1)JKJ467
JUDGMENT Syed Bashir-ud-Din, J.
1. Respondent one Altaf Hussain Mir filed Civil Original Suit 68/99 against the co-respondents in respect of land measuring 1 kanal 12 marlas and 23 Sq. feets covered by Survey Nos 1709, and 1714/1167 of Kh. Nos 44 and 43, situated at Tangbagh Nawpora Srinagar. The suit was referred to Lok Adalat by 1st, Addl. Munsiff Srinagar. Before the Lok Adalat parties to the suit filed an agreement and compromised the matter, in terms whereof defendants to the suit admitted the plaintiff - Respondent No. 1 as title holder in possession/occupation of the land. The Lok Adalat passed award as such as per the agreement and compromise arrived at by the parties and a decree followed accordingly. Against this award and decree, appellant (even so before this Court) after seeking leave and permission to file Appeal, filed Appeal 8/2000 before District and Sessions Judge, Srinagar. The Appeal was assigned and transferred to 4th Addl. District and Sessions Judge, Srinagar. The Appeal is dismissed by the Court vide order dated 29.6.2002. This 2nd Appeal is directed against this judgment of the 1st. Appellant Court in terms confirming judgment and decree passed in Lok Adalat as above.
2. The appellant took number of grounds to assail the Appeal. The 1st appellate court on detailed discussion and for reasons recorded, rejected the grounds of the decree being outcome of fraud, manipulation and suppression of facts. The compromise and award of Lok Adalat is found not vitiated for alleged in-competence and incapacity of parties to enter agreement and compromise the matter through lawyer. The compromise has been found to have been duly entered and executed by the parties to the suit. Merely, because a suit is pending between the plaintiff and a third party for injunction before some other court in respect of the subject of the suit/ decree in terms of award on settlement of lis by Lok Adalat is not vitiated. The court has come to the conclusion that all this perse would not render the decree infirm or illegal.
3. In the facts and circumstances, the appellant though not a party to the suit having been granted permission to file the appeal has no locus to challenge the maintainability of the Appeal which the Ist. Appellate court has found not maintainable. The factual aspects of the case as contained in agreement and decree are based on evidence and documents. The alleged pleas of fraud, manipulation, suppression of facts are found not made out on record, more so, when the appellant is not party to the suit or the award or the decree. However, these questions are stated by the appellate court to be left open for adjudication in a separate suit, as and when the impugned judgment, award and decree is challenged in such suit/ proceedings. In the facts and circumstances of the case, the appellate court, and in my opinion rightly has come to the conclusion that the decree in question cannot be assailed by a stranger on such pleas when he is not party to the suit, judgment, or decree. He has his own remedies, but not to question such a judgment and decree in Appeal after seeking leave to file an appeal more so, when the parties to the decree have stood by the agreement, compromise and the decree even before Ist. Appellate court. The pleadings of the suit which resulted in impugned award and decree contain averments regarding possession and title qua subject matter of suit to which appellant has taken objection. It is plain/manifest that since appellant is not a party to the suit as also to the award and decree, he is not bound by such award or decree. The award and decree is at his back and therefore, he cannot be presumed to be adversely effected, more so, when there is no pleading directed against the appellant in the above suit. Obviously, it is not the province of appellant to question the proceedings to which he was not a party. The award and decree is not based on invalid or illegal agreement/ compromise and so long the consent decree in question is based on such agreement with the seal and approval of the court, same cannot be questioned in appeal even by the parties and much less by a stranger to the suit, compromise and award/decree. So long the appellants as in this case are not bound by the impugned decree as they are not parties to the compromise and in that sense none of the appellants' right is adjudicated upon, the appellant cannot be said to be prejudicially effected and therefor cannot come in appeal, though he may have his remedies elsewhere.
4. The record shows that pending suit, out of which this appeal has arisen, has been referred to Lok Adalat and the Lok Adalat has taken cognizance of the case under Sections 18 and 29 of the J&K Legal Services Authorities 1997 (hereafter Act). The mater was taken up in the Lok Adalat and the case was disposed of after the parties arrived at a compromise and settled the matter interse the parties on such compromise. Shorn of technicalities, settlement of the suit interse the parties on compromise, is just and equitable and the legal provisions of the Act do take care of the matter so far as the parties to the compromise are concerned. The award of the Lok Adalat is deemed decree of a civil court and Section 22 of the Act attaches finality to the decision and gives binding character to it so far as parties to the dispute are concerned and expressly bars the appeal against such award/ decree. The appeal being a creature of the statute with no party having any inherent right to appeal and so long the statute bars the appeal, no appeal shall lie. This provision is in paramatria with provisions of Section 96(3) of the Civil Procedure Code placing a bar on appeal against a decree passed by the court with the consent of the parties. Seen thus, the appeal against the decree is in fact not maintainable and barred by statute, As the first appeal is itself barred, therefore, 2nd Appeal is equally barred. The questions formulated in the memorandum of Appeal which are solicited to be adjudicated, qua the second appeal before this Court do not, in the facts and circumstances of the case, involve any substantial question(s) of law. The questions are the same as even raised before the Ist. Appellate Court and referred and discussed above. This court is not satisfied that substantial questions of law are involved in this appeal.
5. In result, in the above view of the matter, the appeal is dismissed.
Civil Revision No. 170/2002 :
6. This Civil revision is also heard alongwith the Appeal dismissed as above. In the revision order dated 26.8.2002 of the Ist. Additional Munsiff, Srinagar, touching the objections raised to the execution of the decree, stand over-ruled. The objections to the execution of the award/ decree is that the decree is fraudulent, manipulated, in as much as, the judgment debtor No. 3 party to the compromise and award/decree before Lok Adalat is alleged not to have appeared before the Lok Adalat and the court. However, the execution, court has found on facts that the father of the said judgment debtor is party to the agreement and has executed the compromise. The legal representatives/legal heirs of deceased judgment debtor, are estopped to question the compromise and object to execution of the decree. This conclusion of the court below is based on material and record. The court has also come to the conclusion that the matter has been duly referred to the Lok Adalat, within the meaning of provisions of Sections 18 and 19 of J&K Legal Services Authorities Act, 1997. Therefore, the contention raised on behalf of judgment debtor No. 3, is without substance. The authority cited as Smt. Tsering Dolkar v. Sonam Youngjor, (2001) 1 J&K LR 29 for the preposition that, unless provisions of the Jammu and Kashmir Legal Service Authorities Act 1997 are complied with, the bar against appeal of Lok Adalat award would not apply as the award/ decree in that case would be legally infirm, is not applicable to the facts and circumstance of this case. This decision in Tsering Dolkar's case (Supra) is on the premise that compliance of provisions of Section 18 and 19 of J&K Legal Services Authorities of 1997 is wanting in that case whereas, in this case at hand, as observed while disposing of the Appeal, the matter has been properly referred and taken cognizance and disposed of by the Lok Adalat in terms of the provisions of the Act. Besides, it is also noticed that the judgment debtor No. 3 who is opposing execution of the decree has not questioned the reference of the matter to and cognizance thereof by the Lok Adalat and the consequent Award/decree on compromise between the parties in the proceedings which he could have taken so long he was adversely effected by the award and decree. The remedy available to the party is not to raise objection to the execution of the award and decree, so long the decree is not a nullity or void ab-initio, which is not the case here. The order passed by the execution court is a reasoned order which neither suffers from any legal infirmity, nor is vitiated by any jurisdictional error. The order is not shown to have resulted in any failure of justice.
7. In this view of the matter, revision is not maintainable and is dismissed.