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2018 Supreme(Mad) 4399
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
P. Suyambu Anantham (Died) – Appellant
Versus
Sadana Gnana Selvi – Respondent
CRP (PD) (MD) No. 608 of 2016
Decided On : 23-10-2018
Advocate Appeared:
For the Appellant : H. Arumugam.
For the Respondent: S. Palani Velayutham.
Headnote:
Code of Civil Procedure, 1908 - section 89 - trial court - challenged the Lok Adalat award itself – jurisdiction - Thereafter, the seventh defendant moved the trial court for setting aside the order whereby he was set ex-parte. The trial court declined to do so. That necessitated the seventh defendant to file CRP (MD) No. 240 of 2016 before this Court. This Court gave a direction to the trial court for numbering the I.A and giving a disposal on merits and in accordance with law. But then, the court below has returned the I.A with an endorsement that it is not maintainable in the absence of a challenge to the Lok Adalat award. Therefore, the revision petitioner has now challenged the Lok Adalat award itself – Held, Honble Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in the decision reported in (2018) 1 ALD 424, Nallala Anjavva vs. Lok Adalat Bench at Sircilla, quoting an earlier decision, held that when any of the parties to the proceeding before the Lok Adalat does not appear for any reason, it is not permissible for the Lok Adalat to act on the settlement entered into by the other parties for, it will not be exercising its adjudicatory power when it passes an award based on a settlement simplicitor. A Lok Adalat award drawn on the basis of a settlement between some of the parties alone leaving out the rest was characterized as suffering from an incurable defect. National Legal Services Authority (Lok Adalat) Regulations 2009 were notified in exercise of the powers conferred by section 29 of the Legal Services Authorities Act, 1987 (39 of 1987). Regulation No. 10 reads as under - illustration have given cannot be characterized as a hypothetical one. The case on hand amply indicates that in order to encourage the parties to resort to Lok Adalat mechanism, mechanical references can be made even though all the parties to the case are not present before the Lok Adalat. Such situations can be avoided by properly construing the scope of section 89 of CPC and section 20 of the Legal Services Authorities Act, 1987. I therefore hold that before making reference to the Lok Adalat, the court should put all the parties to the dispute on notice. The expression "parties" would include even those who have been already set ex-parte. Likewise, the Lok Adalat should also verify if all the parties to the dispute are present. Otherwise, it will only lead to multiplicity of litigation. Of course, if the awards can stand independently in respect of those present before the Lok Adalat, then there cannot be any difficulty in passing such awards. But, in such case, the record must be returned to the court. Thereafter, the court can pass an appropriate decree against the person who was set ex-parte - Now, let us envisage a situation. "A" makes a money claim against "B" and "C". "C" remains ex-parte. In view of pendency of the case, no ex-parte decree is passed against "C". At this stage, at the instance of "A" the case is referred to Lok Adalat. Before the Lok Adalat "A" and "B" arrived at a settlement and an award is passed. Thereafter "C" applies to the Court for setting aside the order whereby he was set ex-parte. In the meanwhile "A" applies to the court for refund of the court fee paid by him since a Lok Adalat award has been passed. The court has no option but to refund the fee. If thereafter the ex-parte order is set aside and when "C" is allowed to contest the proceedings - petition is allowed
ORDER :
1. O.S No. 201 of 2015 on the file of the Principal District Munsif Court, Valliyoor was filed by the respondents 1 to 9 herein. It is a suit for partition. The original revision petitioner Suyambu Anandham was shown as the 7th defendant in the suit. His stand was that he was the absolute owner of the suit property. But then, for certain reasons, he came to be set ex-parte. This was on 31.08.2015. After the 7th defendant Suyambu Anandham was set ex-parte, the matter was referred to Lok Adalat. In the Lok Adalat, the defendants 1 to 3 stated that they have no objection for passing a preliminary decree as sought for.
2. Thereafter, the seventh defendant moved the trial court for setting aside the order whereby he was set ex-parte. The trial court declined to do so. That necessitated the seventh defendant to file CRP (MD) No. 240 of 2016 before this Court. This Court gave a direction to the trial court for numbering the I.A and giving a disposal on merits and in accordance with law. But then, the court below has returned the I.A with an endorsement that it is not maintainable in the absence of a challenge to the Lok Adalat award. Therefore, the revision petitioner has now challenged the Lok Adalat award itself.
3. The real grievance of the revision petitioner is that he should be allowed the contest the suit on merits. The said request is reasonable and acceptable. As rightly contended by the learned counsel appearing for the revision petitioner, the suit itself was filed only on 29.07.2015. After receiving the suit summons, the original petitioner namely, Suyambu Anandham appeared before the court below on 28.08.2015. Since the presiding officer was on casual leave, the matter was not taken up. Therefore, Thiru. Suyambu Anandham returned. He was probably under the impression that he would receive one more invitation from the court. He omitted to engage a counsel through whom he could have filed Vakalat. Since he did not do so, when the matter was taken up for hearing on 31.08.2015, he came to be set ex-parte. The matter was referred to Lok Adalat on 12.09.2015.
4. On the said date, the plaintiffs and three of the defendants were present. The other four defendants including the seventh defendant Suyambhu Anandham were not present. Admittedly, the suit is one for partition. Yet, based on the consent given by the defendants 1 to 3 for passing a preliminary decree as sought for, an award came to be passed by the Lok Adalat. The question that arises for consideration is whether the Lok Adalt could have passed an award of this nature even though all the parties to the dispute were not present before it.
5. Section 89 CPC provides for settlement of disputes outside the court. It reads as under:
89. Settlement of disputes outside the court - (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for (a) arbitration (b) conciliation (c) judicial settlement including settlement through Lok Adalat and (d) mediation.
It has been held that the duty to formulate the terms of settlement and giving them to the parties for their observation is mandatory. This is because, in Section 89(1), the expression "may" and "shall" have both been employed. It has been held that the expression "shall" will have to be construed as mandatory in this case. If there is more than one defendant, the court is obliged to formulate the terms of the settlement and pass on the same to all the defendants for their observations. I hold that the expression "parties" will have to be given its literal meaning. In other words, all the parties to the dispute will have to be taken into confidence. Since Section 89 is all about compromise and amicable resolution of the dispute outside
