Kanubhai Shivdanbhai Langavadra ... vs Deputy Engineer

Gujarat High Court

Kanubhai Shivdanbhai Langavadra ... vs Deputy Engineer on 20 January, 2025

                                                                                                          NEUTRAL CITATION




                            C/SCA/15258/2024                               ORDER DATED: 20/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 15258 of 2024
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                                     KANUBHAI SHIVDANBHAI LANGAVADRA (GADHVI)
                                                      Versus
                                                 DEPUTY ENGINEER
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                      Appearance:
                      MR DA SANKHESARA(5955) for the Petitioner(s) No. 1
                      MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                     Date : 20/01/2025

                                                      ORAL ORDER

1. The petition is filed under Article 226 and 227 of the Constitution of India, seeking the following reliefs:-

"(A) Your Lordship be pleased to quash and set aside the order and decree dated 13.8.2016 (Annexure A) below Exh.1 in Special Civil Suit (Electricity) No. 1 of 2013 passed by the Chairman, District Legal Services Authority, Gandhinagar.

(B) Pending hearing and final disposal of the present petition, Your Lordship be pleased to stay the order and decree dated 13.8.2016 (Annexure A) below Exh.1 in Special Civil Suit (Electricity) No. 1 of 2013 and further be pleased to stay the further proceeding of Special Execution Case No. 185 of 2019 on 17.12.2019 pending before District Court, Gandhinagar.

(C) Your Lordship may be pleased to pass any other and further order/s necessary in the interest of justice."

2. As far as possible, the parties will be referred to as per their original position in the suit proceedings.

NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined

3. The short facts, which are necessary to resolve the controversy, read as under:

3.1 The petitioner appears to be the original defendant of Special Civil Suit (Electricity) no.1 of 2013 filed by the respondent herein for recovery of dues of electricity. The suit was filed seeking recovery of an amount of Rs.16,30,000/- for theft of electricity with 12% interest, which appears to have been filed on 23rd January, 2013. The suit appears to have been placed before the Regular Lok Adalat, and there was an amicable settlement between the parties, whereby, vide its order dated 13th August, 2016, the Chairman, District Legal Services Authority, Gandhinagar, after recording the compromise between the parties and in the presence of learned advocate for the plaintiff and the administrator of the defendant, disposed of the said suit, and as such, decree was drawn.

3.2 It is required to be noted that as per the said settlement, a lump sum amount of Rs.17,59,455/- was agreed to be paid by the petitioner to the defendant/plaintiff, which includes costs and interest. The decree was drawn on 13th August, 2016 itself, recording the presence of learned advocates for the respective parties in it. The defendant appears to have issued a cheque for a sum of Rs.7,59,455/- on Page 2 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined the date of settlement, i.e., 13th August, 2016, as there is a reference to Receipt no.47461 in the decree itself. The balance amount was to be paid within 2 months in equal installments of Rs.5,00,000/- each.

3.3 The defendant appears to have committed a default in making such payment, thereby, on filing an execution by the plaintiff against the defendant, initially, Civil Miscellaneous Application no.132 of 2021 came to be filed by the defendant.

After hearing the parties at length, vide its order dated 10th May, 2024, the trial court rejected such application by observing that having settled the matter in the Lok Adalat and the decree passed therein, the present application cannot be entertained in light of the settled legal provisions of law. It has been further observed that three cheques, which were given by the defendant, pursuant to the said settlement, were dishonored, including a cheque of Rs.7,59,455/- referred to hereinabove.

3.4 Having lost before the trial court in Civil Miscellaneous Application no.132 of 2021, by way of the present petition, the petitioner has challenged the original order and decree dated 13th August, 2016 passed below Exhibit 1 in Special Civil Suit (Electricity) no.1 of 2013 by the Chairman, District Legal Services Authority, Gandhinagar.

NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined SUBMISSION OF THE PETITIONER

4. The learned advocate, Mr. D.A. Sankhesara, would submit that the petitioner/defendant was not aware of the passing of the impugned order and decree in the Lok Adalat, and no signature of the petitioner was obtained on the pursis filed before the Lok Adalat. He would submit that there is a fraud played by his power of attorney holder, which resulted in the passing of the impugned order and decree.

4.1 He would further submit that when there was no authority given to the power of attorney holder to compromise the suit instituted by the respondent/plaintiff, any consent given by the power of attorney holder of the petitioner would not bind him.

4.2 He would further submit that there is a fraud played against the petitioner herein by his power of attorney holder, therefore, the present petition under Articles 226 and 227 of the Constitution of India is filed which is maintainable. In support of his submission, he would rely upon the decision of the Honorable Supreme Court of India in Bhargavi Construction and Another vs. Kothakapu mathyam Reddy and otehrs, reported in (2018) 13 SCC 480 wherein he emphasized on Para-24.

NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined 4.3 He would also submit that when the petitioner was not given an opportunity of hearing at the time of compromising the matter in Lok Adalat, no decree can be passed by the authority concerned as per the Legal Services Authorities Act, 1987, which would not be binding on the petitioner.

4.4 Lastly, he would submit that any misdeed committed by the power of attorney holder, the petitioner should not suffer and wants an opportunity to contest the suit on merits, thereby this court can quash and set aside the impugned order and decree.

4.5 To buttress his argument, he would also rely upon the decision of the Honorable Karnataka High Court in the case of Smt. Renuka W.o Anand @ Anantsa Bakale vs. Sri. Ramanand and Anr. in Writ Petition No.103766 of 2018 (Gm-RES) reported in 2022 LawSuit(Kar) 737 in Para 20, which reads as under:-

[20] This Court has also been coming across several matters relating to such compromise before the LokAdalat which are challenged by way of writ petitions. Hence, I also deem it fit to issue general directions in respect of such matters which are referred to LokAdalat and compromise recorded as under:

(i) When a compromise is filed before the Court in terms of the decision in Smt.Akkubai vs. Shri Venkatrao and Others, 2014 ILR(KAR) 2051 (supra) it is for the Court to record the compromise and not refer the matter to the LokAdalat.

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(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok- Adalat, the same could be recorded by the lokAdalat.

(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok- Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

(viii) As far as possible the trial Court and or the LokAdalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Page 6 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined Government for various purposes (such as Aadhar Card, Driving Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule.

SUBMISSION OF RESPONDENT/ ORIGINAL PLAINTIFF

5. Per Contra, learned advocate, Mr. Premal R. Joshi, appearing for the respondent/original plaintiff, would submit that the present petition is nothing but dilatory tactics on the part of the original judgment debtor, thereby not to pay anything to the plaintiff but to delay the execution of the decree at any reasons.

5.1 He would submit that as per the provisions of the Legal Services Authorities Act, 1987 (hereinafter referred to as the Act, 1987), no appeal would lie against the order and decree passed under it, and thus this court may not entertain the present petition, which is bereft of details and particulars.

5.2 He would rely upon the decision of P.T. Thomas vs. Thomas Job, reported in (2005) 6 SCC 478, and emphasized the relevant paragraphs i.e., para 21 and 24 to 26.

5.3 He would further submit that the petitioner was fully aware about the passing of the impugned order and decree at the relevant point in time, which can be confirmed from the fact that three cheques towards the impugned compromise in Lok Adalat were given to the plaintiff, which were dishonored. This fact is not in dispute. Therefore, according to him, the Page 7 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined petitioner cannot play ignorance about the impugned order and decree.

5.4 He would further submit that while the compromise pursis was signed by the power of attorney holder of the petitioner and presented in the Lok Adalat, when the petitioner has not taken any steps against such power of attorney holder, either in court or by way of any police complaint in relation to any fraud committed by him, only a mere statement is not sufficient to accept such a bald plea of the petitioner that the act of the power of attorney holder was without any instruction or authority.

5.5 He would lastly submit that even this court has very limited jurisdiction to decide the controversy involved in this type of petition when filed by the defaulting party.

5.6 He would respectfully submit that unless there are extraordinary circumstances and exceptional cases, this court may not entertain such a petition, which is not made out by the petitioner in the present case. Making all the above submissions, he would request this court to dismiss the present petition with costs.

No other and further submissions being made by any of respective learned advocates appearing for the parties.

NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined ANALYSIS

6. At the outset, it is required to be considered that by way of the present petition, the petitioner is challenging the impugned order and decree passed in the lok adalat as per the provisions of the Act, 1987. As per the settled legal position of law, no appeal would lie against such an impugned decree. It is so expressly stated by the Honorable Supreme Court of India in the case of P.T.Thomas (Supra), wherein it has been held under Para 21 and 24 to 26, wherein it has been held as under:-

"21. The Lok Adalat will pass the award with the consent of the parties, therefore there is no need either to reconsider or review the matter again and again, as the award passed by the Lok Adalat shall be final. Even as under Section 96(3) CPC "no appeal shall lie from a decree passed by the court with the consent of parties". The award of the Lok Adalat is an order by the Lok Adalat with the consent of the parties, and it shall be deemed to be a decree of the civil court, therefore an appeal shall not lie from the award of the Lok Adalat as under Section 96(3) CPC.

24. The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties.

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25. In Sailendra Narayan Bhanja Deo v. State of Orissa [1956 SCR 72 : AIR 1956 SC 346] the Constitution Bench held as follows:

(SCR p. 82) A judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. ( South American and Mexican Co., ex p Bank of England, In re [(1895) 1 Ch 37 : (1891-94) All ER Rep 680 : 71 LT 594 (CA)] & Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep 720 : 98 LJPC 129 (PC)] ) "In South American and Mexican Co., ex p Bank of England, In re [(1895) 1 Ch 37 : (1891-94) All ER Rep 680 : 71 LT 594 (CA)] , it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said (Ch p. 50):

'The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.' To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott [1929 AC 482 : 1929 All ER Rep 720 :

98 LJPC 129 (PC)] (AC at p. 493):

'First of all Their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal.' "

26. The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be Page 10 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined made to the cases of Secy. of State for India in Council v. Ateendranath Das [ILR (1936) 63 Cal 550] , ILR at p. 558; Bhaishanker Nanabhai v. Moraji Keshavji & Co. [ILR (1912) 36 Bom 283 : 12 Bom LR 950] and Raja Kumara Venkata Perumal Raja Bahadur v. Thatha Ramasamy Chetty [ILR (1912) 35 Mad 75 : 21 MLJ 709] . In the Calcutta case [ILR (1936) 63 Cal 550] after referring to the English decisions the High Court observed as follows: (Ateendranath Das case [ILR (1936) 63 Cal 550] , ILR p.

558) "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 conclusions 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 purposes of sustaining the judgment in the particular case will operate as estoppel by judgment."

7. It is true that such award though not appealable but may be challenged by way of petition filed under Article 226/227 of the Constitution of India. It has been so held by the Hon'ble Supreme Court of court in the Bhargavi Construction and Another (Supra), in para 24, which reads as under:-

"24.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. In the light of clear pronouncement of the law by this Court, we are of the opinion that the only remedy available to the aggrieved person (respondents herein/plaintiffs) was to file a writ petition under Page 11 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined Article 226 and/or Article 227 of the Constitution of India in the High Court for challenging the award dated 22-8-2007 passed by the Lok Adalat. It was then for the writ court to decide as to whether any ground was made out by the writ petitioners for quashing the award and, if so, whether those grounds are sufficient for its quashing."

8. Even though the present writ petition is maintainable against the impugned order and decree, the scope of interference by this court is very limited. It is well-settled that whenever there is a compromise arrived at between the parties, either in Lok Adalat or otherwise, such compromise requires to be honored by the parties, and the court would loathe to entertain any type of pleas against such compromise decree passed by the competent court.

9. According to this Court, in extraordinary and exceptional circumstances, in a case of fraud or like nature, ordinarily, this court would not like to interfere with in a compromise decree passed in a Lok Adalat by the competent authority or Court. If this Court will start interfering with such impugned orders or decrees in a routine manner, the sanctity of the provisions of the Act would be undermined, and there would be no end to the litigation between the parties.

10. Keeping all these factors into account, I would like to examine the facts of the present case.

NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined 10.1 It is the case of the petitioner that no authority has been given to his power of attorney holder to enter into a compromise with the plaintiff in the Lok Adalat. It is further the case of the petitioner that he was not made aware of any such compromise but came to know only when the execution was initiated by the plaintiff against him.

10.2 This is nothing but a false statement on the part of the petitioner as he has given three cheques in favor of the respondent herein in pursuance of the compromise entered into between the parties, albeit, signed through the power of attorney of the defendant/petitioner. All these three cheques were dishonored. This fact, which is so recorded in the order dated 10th May, 2024 by the trial court while rejecting Civil Miscellaneous Application no.132 of 2021 filed by the petitioner, clearly establishes the said fact.

10.3 If the petitioner was not fully aware of the passing of the impugned decree, then the question of issuing three cheques in favor of the plaintiff would not have arisen. This itself shows that the petitioner has come out with a completely false case, thereby losing any sympathy of this court.

10.4 The petitioner has miserably failed to even prima facie prove that no authority was given by him to his power of attorney holder to enter into a compromise. Nothing has been Page 13 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined placed on record to suggest that any appropriate action, including legal action, was initiated by the petitioner against the power of attorney holder for such misdeeds. This would show that the petitioner wants to delay the execution at any cost.

10.5 When the petitioner raises a hue and cry about the act of his power of attorney holder but remains silent all throughout by not taking any action against such power of attorney holder, later on, the petitioner cannot be allowed to shed crocodile tears.

10.6 The decision relied upon by the petitioner from the Honorable Karnataka High Court in the case of Smt. Renuka W.o Anand @ Anantsa Bakale (Supra) is a general proposition of law but it is not applicable to the facts of the present case, as the petitioner has failed to prove that no authority to enter into a compromise was given by him to his power of attorney holder. Moreover, the factual matrix in that case is completely different from the present case. Thus, according to this court, the said decision is not applicable to the facts of the present case.

11. In view of the above, I am of the view that there is no prima facie merits in the submission of the petitioner, who has not been able to make out a case of any fraudulent act on the Page 14 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025 NEUTRAL CITATION C/SCA/15258/2024 ORDER DATED: 20/01/2025 undefined part of his power of attorney holder while entering into the compromise with the plaintiff before the Lok Adalat, thereby resulting in the impugned decree passed by the Chairman, District Legal Services Authority, Gandhinagar, as per the provisions of the Act, 1987. Hence, the present petition lacks merit and is hereby DISMISSED. No order as to costs.

(MAULIK J.SHELAT,J) MOHD MONIS Page 15 of 15 Uploaded by MOHD MONIS(HC01900) on Wed Jan 29 2025 Downloaded on : Sat Feb 01 02:39:35 IST 2025