Andhra Pradesh High Court - Amravati
Desetty.Varahalamma vs The District Legal Services Authority, on 6 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.37428 OF 2018
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) This writ petition is filed under Article 226 of the Constitution of India, to issue a writ of Certiorari declaring the award passed before the 1st respondent in L.S.A No.128 of 2015 in O.S No. 897 of 2015 dated 28.07.2015 on the file of First Respondent Lok Adalat Bench Visakhapatnam as illegal, unjust and violative of fundamental rights enshrined in Articles 14, 16 and 21 of the Constitution of India and also contrary to the Provisions of Legal Services Authority Act and Rules made thereunder, as the Lok Adalat Award was passed at the instance and benefit of 2nd respondent herein by playing fraud, forgery and mischief and impersonation consequently to Declare the Award Passed before the First Respondent in L.S.A No. 128 of 2015 in O.S No 897 of 2015 dated 28.07.2015 as null and void and unenforceable.
Originally, the first petitioner/Desetty Varahalamma filed this writ petition aggrieved by the award passed in L.S.A.No.128 of 2015 in O.S.No.897 of 2015 dated 28.07.2015 and during pendency of the petition, she died and the second respondent/Desetty Venkata Ramana Murthy is impleaded as petitioner vide order in I.A.No.1 of 2019 in W.P.No.37428 of 2018 dated 05.03.2019.
The main contention of the petitioner before this Court is that, the award in L.S.A.No.128 of 2015 in O.S.No.897 of 2015 dated 28.07.2015 came to the notice of the first petitioner only when she received summons in O.S.No.220 of 2018 filed by the second respondent on the file of I Additional Junior Civil Judge, Visakhapatnam, for grant of perpetual HACJ & MSM,J 2 WP_37428_ 2018 injunction, as the Lok Adalat Award was passed at the instance and benefit of the second respondent by playing fraud, forgery, mischief and impersonation, as such the award is illegal, unjust and violative of fundamental right enshrined under Constitution of India.
The pleadings to constitute fraud are specifically mentioned in the affidavit, viz., on receipt of summons in O.S.No.220 of 2018 pending on the file of I Additional Junior Civil Judge, Visakhapatnam in the month of April, 2018, the first petitioner obtained copy of the complaint filed by the second respondent along with the suit filed by her and to her utter surprise, she came to know that the second respondent with a pre-plan made certain averments in the plaint in O.S.No.897 of 2015, no notice was served upon her and conveniently the second respondent mentioned her address as address of the first petitioner, while mentioning the address of the first petitioner as that of second respondent in the plaint to see that, no summons could be served on the first petitioner and thus, she obtained an award within 28 days from the date of filing plaint before the Court without serving summons on the first petitioner. Thus, the second respondent committed fraud on the Lok Adalat bench and stage managed the entire episode of recording compromise by impersonation and therefore, the first petitioner requested to set-aside the award passed by the Court below, as it is vitiated by fraud.
In paragraph No.5 of the affidavit, the petitioner explained as to how the second respondent manipulated everything and obtained an award by impersonation.
The brief allegations are necessary for deciding the real controversy between the parties and they are extracted hereunder for better appreciation of the case.
HACJ & MSM,J 3 WP_37428_ 2018
(i) She filed the suit in O.S.No.987 of 2015, on the file of VI Additional Senior Civil Judge, Visakhapatnam, based on the forged and fabricated promissory note dated 09.06.2013, as if it was executed by the petitioner herein.
(ii) The second respondent mentioned the address of the petitioner herein as residing in D.No.9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District. The Hon'ble Court may appreciate that the address of the petitioner as per her Aadhar Card is H.No.31-19-28, Allipuram, Venkateswaramettam Urban, Daba Gardens, Visakhaptnam, A.P, but the second respondent mentioned her address i.e. she changed the address vice versa to avoid serving of summons on this petitioner.
(iii) The second petitioner seems to have engaged an advocate on behalf of the petitioner and managed the officials of the first respondent at the time of complying the provisions such as verification of photographs etc.
(iv) The second respondent filed the suit in O.S.No.897 of 2015, on the file of Hon'ble VI Additional Senior Civil Judge, Visakhapatnam on 30.06.2015, as the suit was compromised and award was passed in Lok-Adalat on 28.07.2018 i.e. within 28 days.
It is further contended that the alleged promissory note, memorandum of understanding, terms of compromise, signatures of the first petitioner on the terms of compromise before Lok Adalat, Visakhapatnam, verification of photographs etc, all are completely designed and fabricated by the second respondent which was brought to the notice of the first petitioner in the month of April, 2018. Though the first petitioner gave complaint to the District Legal Service Authority, no purpose was served and therefore, she sought to declare the award passed in L.S.A No.128 of 2015 in O.S No. 897 of 2015 dated 28.07.2015 as illegal, arbitrary and violative of principles of natural justice.
The second respondent filed counter denying material allegations, inter alia, contending that the first petitioner borrowed an amount of Rs.10,00,000/- for the purpose of family expenses and executed a demand promissory note in her favour in the presence of witness and scribe and thereafter, the first petitioner failed to repay the said amount due under the promissory note inspite of repeated requests. In those circumstances, the second respondent filed O.S.No.897 of 2015 for recovery of Rs.14,95,000/- against the first petitioner. She appeared in the said suit HACJ & MSM,J 4 WP_37428_ 2018 and admitted the execution of said promissory note and the suit was ended in compromise before the Lok Adalat, Visakhapatnam. In paragraph No.4 of the counter, it is contended that the first petitioner agreed to execute a register sale deed in favour the second respondent with respect of the house in an extent of 40 sq.yds, situated in H.No.31-19-28, Allipuram, Venkateswara Metta, Visakhapatnam, where the first petitioner is residing and she entered into a memorandum of understanding on 27.07.2015 and the first petitioner agreed to pay an amount of Rs.14,95,000/- within 3 months on or before 28.10.2015, failing which she agreed to register the property and further agreed to deliver the vacant possession of the property to the second respondent with absolute rights.
The second respondent denied the alleged mentioning of the address of the first petitioner as 9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District, but the address of the first petitioner as per Aadhar Card is H.No.31-19-28, Allipuram Venkateswara Mitta, Visakhapatnam, as the first petitioner is a permanent resident of Anakapalli, Visakhapatnam District and when she personally appeared before the VI Additional Senior Civil Judge, Visakhapatnam, on receiving Court summons, there was no chance of avoiding service of summons to her.
The second respondent specifically contended that the first petitioner personally appeared before the Lok Adalat, Visakhapatnam and submitted her identity proofs and upon satisfying all the details and upon confirming the terms of compromise, the Award has been passed and there is no fraud and misrepresentation in obtaining Award and the first petitioner filed the writ petition to harass the second respondent and to grab the property. The second respondent denied all the other allegations HACJ & MSM,J 5 WP_37428_ 2018 which are not relevant for deciding the present writ petition before us and therefore, they are not extracted and finally the second respondent requested to dismiss the writ petition.
During hearing, Sri S. Gopal Rao, learned counsel for the petitioner highlighted the alleged fraud committed by the second respondent in mentioning the address of the first petitioner as address of the second respondent and second respondent address as that of the first petitioner, so as to manage and not to serve summons on the first petitioner and contended that, question of her appearance before the Court does not arise, as the first petitioner never received summons. Apart from that, entering into compromise within 28 days from the date of filing plaint itself is an astonishing factor and therefore, the award was obtained by impersonating the first petitioner by playing fraud on the Lok Adalat. Learned counsel for the petitioner placed reliance on the judgment of the Apex Court in Bharvagi Constructions v. Kothakapu Muthyam Reddy1. It is specifically contended that, when the award is vitiated by fraud and details are specifically mentioned as required under Order VII Rule 4 C.P.C, the petitioner prima facie established that the award was obtained by playing fraud and this Court while exercising power under Article 226 of the Constitution of India can set-aside the award, since finality is attached to such award under Section 21 of the Legal Services Authorities Act and the same cannot be set-aside by way of writ petition before the Court, except invoking power of judicial review under Article 226 of the Constitution of India and requested to set-aside the award in L.S.A No.128 of 2015 in O.S No. 897 of 2015 dated 28.07.2015 as illegal, unjust and violative of fundamental right enshrined under Constitution of India. 1 AIR 2017 SC 4428 HACJ & MSM,J 6 WP_37428_ 2018 Whereas, learned counsel for the second respondent Sri Palla Balu Anil Kumar, would contend that the address mentioned in O.S.No.987 of 2015 on the file of VI Additional Senior Civil Judge, Visakhapatnam is the correct address of the first petitioner and whereas, the second respondent is residing in H.No.31-19-28, Allipuram, Venkateswarametta Urban, Daba Gardens, Visakhaptnam, which belongs to the first petitioner and it was let out to the second respondent on monthly rent long ago by continuing as tenant and paying rent regularly. Therefore, the alleged mentioning of address of plaintiff and defendant in O.S.No.987 of 2015 on the file of VI Additional Senior Civil Judge, Visakhapatnam is not a ground to declare the award as illegal and arbitrary. Even otherwise, the writ petition cannot be maintained to set-aside the award, in view of the finality attached to such award by Section 21 of the Legal Services Authorities Act, 1987.
Learned counsel for the second respondent drawn attention of this Court to the judgment of the Supreme Court in P.T. Thomas v. Thomas Job2 and judgment of High Court of Kerala in Rajeswary v. Sooraj3 and on the strength of the principles laid down in the above judgments, learned counsel for the second respondent requested to dismiss the writ petition.
In view of the rival contentions, the point that arise for consideration is "Whether award passed in L.S.A No.128 of 2015 in O.S No. 897 of 2015 dated 28.07.2015 on the file of First Respondent/Lok Adalat Bench Visakhapatnam, is vitiated by fraud. If so, whether such award is liable to be quashed by exercising power of judicial review, issuing Writ of Certiorari?"
P O I N T:2
(2005) 6 Supreme Court Cases 478 3 2005 Law Suit (Ker) 558 HACJ & MSM,J
7 WP_37428_ 2018 As seen from the allegations made in the writ petition, except that the material annexed to the writ petition, it is clear that the second respondent filed O.S.No.897 of 2015 and allegedly obtained an award entering into comprise with the first petitioner by filing a memorandum of compromise before the Lok Adalat and the Lok Adalat passed the award by obtaining signatures of both Desetty Varahalamma/first petitioner and Challa Venkata Chaya Devi/second respondent, duly signed by the Presiding Officer of the Lok Adalat Bench, Visakhapatnam. The plaint was filed before the Senior Civil Judge, Visakhapatnam in O.S.No.897 of 2015 on 30.06.2015 and whereas, the award was passed on 28.07.2015. Thus, the award was admittedly passed within 28 days from the date of filing of plaint. But, that by itself is not sufficient to conclude prima facie that the award is vitiated by fraud. When the plaint is filed and registered as a suit, immediately summons can be served on the defendant and if, summons are served, the parties can approach the concerned Court and request to refer the dispute to the Legal Services Authority and on such reference, the Lok Adalat can record the compromise.
The contention that the second respondent is the resident of D.No.9-1-65, Railway Station Street, Kotniveedhi, Anakapalli, Visakhapatnam or permanent resident of D.No.9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District is not clear. Whereas, the second respondent contended that the first petitioner is resident of 9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District. But, no proof is filed to substantiate her contention. However, during hearing, the second respondent produced Aadhar Card issued by Government of India to establish that she is the resident of H.No.31-19-28, Allipuram, Venkateswarametta Urban, Daba Gardens, Visakhaptnam. She also produced the first page of the passbook of the second respondent issued HACJ & MSM,J 8 WP_37428_ 2018 by Andhra Pradesh Grameena Vikas Bank to establish that she is a resident of H.No.31-19-28, Allipuram, Venkateswarametta Urban, Daba Gardens, Visakhaptnam and the passbook was issued on 24.07.2012. Similarly, she filed several Photostat copies of the documents, including voter identity card, telephone bills to substantiate her contention that she is residing in H.No.31-19-28, Allipuram, Venkateswarametta Urban, Daba Gardens, Visakhaptnam. But, she did not file any material to establish that the first petitioner is residing in D.No.9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District. When the second respondent is contending that she was inducted into possession of the property by the first petitioner as a tenant on payment of monthly rent and continuing in possession, mentioning address of the second respondent as residing in H.No.31-19-28, Allipuram, Venkateswarametta Urban, Daba Gardens, Visakhaptnam is not sufficient to conclude prima facie that the address of the first petitioner was shown as address of the second respondent and vice versa. Even the first petitioner is not certain as to the residential address of the second respondent. In the counter affidavit, she pleaded that the second respondent is residing at D.No.9-1-65, Station Road, Anakapalli, Visakhapatnam District, whereas, she produced material to show that the second respondent is the resident of D.No.9-178/2, Kotni Veedhi, Anakapalli, Visakhapatnam District and also resident of D.No.9-1-65, Station Road, Anakapalli, Visakhapatnam District.
Though the 2nd respondent furnished different addresses for service of notices either on the 2nd respondent or on the petitioner, but, that by itself is not sufficient to infer that the 2nd respondent played fraud on the Lok Adalat in obtaining the award. This Court called for entire record from the 1st respondent/Legal Services Authority, Visakhapatnam and on verification, the award and other material on record discloses that the HACJ & MSM,J 9 WP_37428_ 2018 petitioner engaged an advocate to defend her in the suit and the counsel also signed on all relevant documents, including the compromise memo as per the procedure prescribed by the Legal Services Authority. Even if the award is passed within 28 days from the date of filing the complaint, that by itself is not a ground to set-aside the award, since there is no fetter on the Legal Service Authority to entertain such request and pass appropriate order by settling the dispute between the parties. Therefore, arriving at a settlement within 28 days is not sufficient to infer that there is fraud in obtaining award from the first respondent.
Yet, the other contention raised by the learned counsel for the petitioner is that, in the main suit, no summons were served and the 2nd respondent herself engaged an advocate on behalf of this petitioner, got filed vakalat and obtained an award. In fact, it is not the case of this petitioner at any stage that there was any impersonation of this petition and on the other hand, the advocate who appeared on behalf of the petitioner signed on every document including identification of the petitioner before Lok Adalat. When both parties entered into compromise settling their pending disputes before the Court in O.S.No.897 of 2015, the 1st respondent has no other alternative, except to record compromise between the parties to the suit arrived. Therefore, there is absolutely nothing to conclude that the 2nd respondent played fraud on the petitioner, except mentioning the addresses of the plaintiff and defendant in the suit and vice versa. That is a ground for setting aside the award, if no advocate was engaged by this petitioner to defend her in the suit. When she engaged a counsel and obtained an award by playing fraud on the 2nd respondent and the 1st respondent, at best, the remedy open to the first petitioner is elsewhere to proceed against the advocate, who appeared on her behalf HACJ & MSM,J 10 WP_37428_ 2018 without instructions. On that ground, the award cannot be set-aside. If, for any reason, the concerned authority or the court came to a conclusion that the advocate whom she allegedly engaged played fraud on the 1st respondent in passing award, the first petitioner can avail appropriate remedy against the counsel who appeared on her behalf in any competent court, without any instructions, as contended by this petitioner.
Learned counsel for the 1st respondent and the petitioner mainly contended that the Court cannot set-aside the award at any cost, when the award was passed with the consent of both the parties and placed reliance on Supreme Court in P.T. Thomas v. Thomas Job (referred supra), wherein the Apex Court held that once the award is passed, the same can be set-aside by any Court in view of the provisions contained under the Act and concluded that investigation into questions of fact and appraisal of evidence is not contemplated before the Lok Adalat. In the facts of the above judgment, decree holder had expressed his readiness and willingness to deposit amount as per award and got the sale deed executed. But the High Court misunderstood the award, though it was obligation of the respondent to evince his willingness to execute the sale deed within two years and not vice versa and there was already a decree of ejectment against him and the settlement was a concession in favour of the respondent to give vacant possession. Therefore, the Court upheld the award as it is a concession to eject the petitioner from possession of the petitioner and based on the facts the Apex Court held as follows:
"26. The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the cases of 'Secy. Of State v. Ateendranath Das4', Bhaishanker v. Moraji5', and 'Raja Kumara Venkata Perumal Raja Bahadur, v. Thatha Ramasamy Chetty6'. In 4 ILR (1936) 63 Cal 550 5 ILR (1912) 36 Bom 283 6 ILR (1912) 35 Mad 75 HACJ & MSM,J
11 WP_37428_ 2018 the Calcutta case after referring to the English decisions the High Court observed as follows:
"On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusion arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say "every step in the reasoning" we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment."
27. The Civil Procedure Code contains the following provisions:
"Order 23 Rule 3 provides for compromise of suit - where it is proved to the satisfaction of the Court that a suit has been adjusted wholly in part by any lawful agreement or compromise, written and signed by the parties. The Court after satisfying itself about the settlement, it can convert the settlement into a judgment decree."
28. We have already discussed about the steps taken by the appellant to serve notice on the respondent and the steps taken by him to perform his obligations and sending of the notice and telegram etc. would not have been done unless the appellant was ready with his obligations and the money all along. The appellant had waited till almost the last day for the respondent to perform his obligations. The High Court, in our view, has failed to note that the courts attempt should be to give life and enforceability to the compromise award and not to defeat it on technical grounds. This is a fit case, in our view, where the Respondent ought to have been directed to execute the sale deed by the extended time, if necessary. The High Court is also not correct in holding that the Court has no jurisdiction to extend the time. In our view, the learned Subordinate Judge has rightly extended the time for depositing the money which the High Court has wrongly interfered with."
Applying the same principle in the above judgment, Kerala High Court reiterated the same principle in Rajeswary v. Sooraj (referred supra). But, in Bharvagi Constructions v. Kothakapu Muthyam Reddy (referred supra) the Apex Court reiterated the law declared by the Apex Court in State of Punjab v. Jalour Singh7 held as follows:
"12. It is true that where an award is made by the Lok Adalat in terms of a settlement arrived at between the parties (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition Under Article 226 and/or Article 227 of the Constitution, that too on very 7 (2008) 2 SCC 660 HACJ & MSM,J 12 WP_37428_ 2018 limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the Respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition Under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits.
27. In our considered view, the aforesaid law laid down by this Court is binding on all the Courts in the country by virtue of mandate of Article 141 of the Constitution. This Court, in no uncertain terms, has laid down that challenge to the award of Lok Adalat can be done only by filing a writ petition Under Article 226 and/or Article 227 of the Constitution of India in the High Court and that too on very limited grounds." Thus, in view of the later judgment of the Supreme Court in State of Punjab v. Jalour Singh (referred supra) and reiterated in Bharvagi Constructions v. Kothakapu Muthyam Reddy (referred supra), the aggrieved person can approach the High Court questioning the award on limited grounds. Hence, the contention of the first respondent is rejected, while upholding the contention of the learned counsel for the petitioner to the limited extent of maintainability of writ petition questioning the award. Though we find that the writ petition is maintainable, the peculiar facts and circumstances of the case lead us to conclude that the parties and their counsel have signed on the award and other material papers, including compromise petition and the signature was not denied by the petitioner anywhere. In those circumstances, this Court shall not encourage such unscrupulous litigants having entered into compromise and resiled from compromise at later stage. However, it is left open to the parties to raise such contentions by approaching the High Court, the very purpose of settlement before Lok Adalat and establishing Legal Services Authority would be frustrated. Therefore, to avoid such multiplicity of HACJ & MSM,J 13 WP_37428_ 2018 litigation, more particularly, when the parties failed to establish that the award was obtained by playing fraud or by misrepresentation or exercising undue influence or coercion, the Court cannot normally interfere with the award passed by the 1st respondent. Hence, we find no merit in the writ petition and the same is liable to be dismissed.
In the result, writ petition is dismissed.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:06.08.2019 SP