Mahadevi vs Kenchavva - 2014 Supreme(Kar) 64

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Kar) 64

High Court of Karnataka (Circuit Bench At Dharwad)
N. KUMAR, J.
Mahadevi & Another
Versus
Kenchavva & Others
Writ Petition No. 65543 of 2011 [GM-CPC]
Decided on: 31-01-2014

Advocates Appeared:
For the Petitioners:Dinesh M. Kulkarni, Advocate.
For the Respondents:R1 – R5 & R8 – R9, Hanamant R. Latur Advocate, R6, Narayan V. Yaji, Advocate, R7, Served.

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 89 & Order 32, Rule 7 & Order 23, Rule 3: [N. Kumar, J] Compromise on behalf of minor - Absence of certificate of Counsel appearing for minor - Held, If the matter is settled before the Lok Adalat, as is clear from Order 32, Rule 7 of CPC, along with the application under Order 23, Rule 3 of CPC a certificate issued by the Counsel appearing for the minor ought to have been enclosed. The Lok Adalat should have applied its mind to the compromise and the certificate and then it should have granted permission to compromise. That is the reason why the members of Lok Adalat consist a Judicial Member who can take care of all the legal hurdles and guide the Lok Adalat in rewarding legally acceptable compromise. The Court granting the permission to compromise under Order 32, Rule 7 of CPC and the Lok Adalat recording compromise is unheard of and making a mockery of the judicial proceedings. Therefore, the order passed by the Civil Court referring the matter is vitiated. The order passed by the Lok Adalat recording compromise and passing an award is also vitiated. Both are not in accordance with law.
CODE OF CIVIL PROCEDURE, 1908 - Order 32, Rule 7: [N. Kumar, J] Compromise on behalf of minor - Held, If a pleader is representing a minor, he should go through the agreement or compromise proposed and, thereafter, if he is of the opinion that it is for the benefit of the minor, he shall issue a certificate to that effect and the said certificate is to be produced before the Court along with the application filed under Order 32, Rule 7 of CPC for permission to compromise. Even if such a certificate is issued by the Counsel or an affidavit is filed to that effect, it shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor. Therefore, it is clear that, first, the proposed agreement should be looked into by the Court, satisfy itself as to the terms of the compromise, whether it benefits the minor and then decide whether to act on the certificate issued by the Counsel and to permit the parties to enter into a compromise. Therefore, the said proposed compromise or agreement should accompany the application under Order 32, Rule 7 of CPC.
CODE OF CIVIL PROCEDURE, 1908 - Order 32, Rule 7: [N. Kumar, J] Compromise on behalf of minor - Reference to Lok Adalat -Permissibility - Held, The Counsel appearing for the minor did not file certificate certifying that the compromise, if the Counsel had certificate, if the Court wanted to allow the application under Order 32, Rule 7 of CPC, it ought to have looked into the compromise, record its satisfaction regarding the requirements under the provision and if the dispute is resolved by the compromise. The question of referring the matter to the Lok Adalat would not arise because the condition precedent for referring the matter to Lok Adalat is (i) there should be a dispute between the parties; and (ii) there is a possibility of settlement of the said dispute by the process of Lok Adalat.

JUDGMENT

1. This writ petition is filed challenging the award passed by the Lok Adalath.

2. The plaintiff—Kenchavva, who is the wife of defendant No.5, filed a suit claiming her l/7th share in the deceased son —Dundappa's service benefits. She arrayed her daughter-in-law as defendant No.l and grand-children as defendant Nos.2, 3, 4 and 6. Defendant No.7 was the Life Insurance Corporation and defendant No.8 was the Regional Fire Fighter Officer, where the deceased was employed.

3. Her grievance was her son—Dundappa had insured his life for a sum of Rs. 1,00,000/-, Rs.50,000/-, Rs.50,000/-Rs.50,000/- and Rs.50,000/- under different L.I.C. polices. Defendant Nos.1 to 6 colluding with each other are trying to withdraw the said amount, behind her back. As her share is denied, she fried the suit. The suit was instituted on 03.07.2009.

4. After service of summons, the defendants entered appearance. As an application was also filed in the said suit under Section 80(2) of CPC for dispensation of notice to defendants 7 and 8, it was allowed. No written statement was filed. However, on 11.08.2009, I.A. No.VI was filed under Order I Rule 10(2) of CPC, for impleading defendants 9 and 10. As no objection was submitted, application was allowed. Notice was ordered on I.A. No.VI to the proposed defendants, a procedure which is wholly erroneous and the case was adjourned to 14.08.2009. The order- sheet discloses that no notice was served on defendants 7 and 8 at all.

5. On 14.08.2009, the plaintiff and her counsel, defendants 1 to 6, 8 & 10 were present. Sri. MHG advocate filed vakalath for defendants 2 to 5 and 8 to 10 and Sri. GRP advocate for defendant 1 and 6 was present and he filed an application under Order XXXII Rule 7 of CPC praying permission to defendant No.1 to compromise on behalf of defendant No.6. The advocate for the plaintiff submitted no objections. Hence, I.A. under Order XXXII Rule 7 of CPC was allowed. Both the parties filed a joint memo to refer the matter to Lok-Adalath. Considering the submissions made by both parties and as the Court felt that there appears an element of settlement, the matter was referred to Lok-Adalath. A memo was filed seeking dismissal of the suit against defendants 7 and 8. Accordingly, the suit against defendants 7 and 8 was dismissed.

6. On the very same day, the matter was taken up by the Lok-Adalath. The order-sheet discloses that the plaintiff, defendant 1 to 6, 9 and 10 and their respective counsel were present. The matter was taken up before the Lok-Adalath and through conciliation, the parties have got settled the dispute amicably among themselves. Both the parties to the suit filed a compromise petition under Order XXIII Rule 3 of CPC. The contents of the compromise petition were read over to both parties in Kannada and they voluntarily agreed for the same. As the Lok-Adalath found the compromise petition lawful, the compromise was accepted and recorded and an order was passed for drawing up of final decree accordingly, subject to payment of non-judicial stamp within 20 days.

7. Defendant Nos.1 and 6 riled an application before the Court seeking recalling of the award passed by the Lok-Adalath. The said application came to be rejected on the ground of want of jurisdiction by the Civil Court. Therefore, the petitioners are before this Court, by way of a writ petition.

8. Before going to the merits of the writ petition, I deem it proper to state, the manner in which the cases are referred to Lok-Adalath and the manner in which the cases are dealt with by the Lok-Adalath is subject matter of concern and criticism, which is bringing a very bad name/ disrespect to this alternative dispute resolution mechanism. Therefore, it is utmost necessary and important that the sanctity of this Lok-Adalath process has to be maintained and lawyers and Judges are to be sensitised in this regard.

9. As could be seen from the facts set out above, the suit is filed by a mother against her daughter-in-law and gra

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Judicial Analysis

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2014 Supreme(Kar) 64

High Court of Karnataka (Circuit Bench At Dharwad) N. KUMAR, J.Mahadevi & Another Versus Kenchavva & Others Writ Petition No. 65543 of 2011 [GM-CPC] Decided on: 31-01-2014

Judicial Analysis

High Court of Karnataka (Circuit Bench At Dharwad)
N. KUMAR, J.
Mahadevi & Another
Versus
Kenchavva & Others
Writ Petition No. 65543 of 2011 [GM-CPC]
Decided on: 31-01-2014