Bombay High Court
Chandpasha Amirsab Ansari vs Ejaz Amirsab Anasari And Others on 29 January, 2024
2024:BHC-AUG:1858
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 7595 / 2020
With
Civil Application No. 11482 / 2023
in
Writ Petition No. 7595 / 2020
Chandpasha s/o Amirsab Ansari,
Age : 62 years, Occupation : Agriculture,
R/o Uti (Bu.), Tq. Ausa, Dist. Latur. ...Petitioner
Versus
1. Ejaz s/o Amirsab Ansari,
Age : 42 years, Occupation : Agriculture,
R/o Uti (Bu.), Tq. Ausa, Dist. Latur.
2. Amatulabi w/o Amirsab Ansari,
Age : 70 years, Occupation : Household,
R/o Uti (Bu.), Tq. Ausa, Dist. Latur.
3. Amirsab s/o Chandsaab Ansari (deceased)
Through L.Rs.
i. Chandpasha s/o Amirsab Ansari (Petitioner herein)
ii. Ejaz s/o Amirsab Ansari (Respondent No.1 herein)
iii. Surajpasha Amirsab Ansari,
Age : 50 years, Occupation : Agriculture,
R/o Uti (Bu.), Tq. Ausa, Dist. Latur.
iv. Sultana Jabbar Pathan,
Age : 48 years, Occupation : Household,
R/o Ambejigai Rd, Near Chandtara Masjid, Latur.
v. Rizwana Salim Sheikh,
Age : 46 years, Occupation : Household,
R/o Mangrul, Tq. Kalamb, Dist. Osmanabad.
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vi. Mumtaz Raifoddin Syed,
Age : 44 years, Occupation : Household,
R/o Uti (Bu.), Tq. Ausa, Dist. Latur.
vii. Channa Ejaz Pathan,
Age : 40 years, Occupation : Household,
R/o M.H.A.D.A. Colony, Babhal Gaon Rd, Latur.
viii. Rubina Pirpasha Sheikh,
Age : 38 years, Occupation : Household,
R/o Bhada, Tq. Ausa, Dist. Latur.
ix. Irfana Jafar Patel,
Age : 35 years, Occupation : Household,
R/o Nanad Jau, Tq. Nilanga, Dist. Latur.
(L.Rs. iii to ix formal parties). ...Respondents
_ _ _
Mrs. Anjali Dube (Bajpai), Advocate for the Petitioner.
Mr. R.P. Adgaonkar, Advocate for Respondent Nos.1 and 2.
_ _ _
CORAM : SHAILESH P. BRAHME, J.
nd
RESERVED ON : 22 JANUARY 2024.
th
PRONOUNCED ON : 29 JANUARY 2024.
JUDGMENT :
. Rule. Rule is made returnable forthwith with the consent of
the parties. Heard the learned Counsel for the litigating sides finally.
2. The petitioner is challenging an award dated 17.03.2019
passed by the National Lok Adalat, Ausa in RCS No.174/2019. The
petitioner is a step-brother of the respondent no.1 and step son of
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the respondent no.2. The respondent no.2 is the wife of respondent
no.3. The respondent no.1 had filed RCS No.174/2019 for perpetual
injunction against respondent no.2 and 3. The petitioner was not
party to the litigation. The respondent no.3 was the owner of suit
land which was gifted by him to respondent no.1 by oral Heeba.
The possession of the respondent no.1 was stated to be obstructed
which was cause to file suit.
3. There was settlement amongst respondent nos. 1 to 3.
Respondent no.2 secured power of attorney of the respondent no.3.
She entered into compromise on behalf of herself and the
respondent no.3 with the respondent no.1 on 17.03.2019. The
compromise was recorded and an award was passed on 17.03.2019
by the panel of National Lok Adalat, Ausa.
4. The petitioner's case is that respondent no.3 was not the
exclusive owner of the suit land. He is son begotten from deceased
wife of respondent no.3. He had interest in the suit land. From the
record of right, he noticed the award passed by the National Lok
Adalat. The respondent no.1 had no right to gift suit land to the
respondent no.1 and to part the possession. Feeling aggrieved by
the decree drawn in pursuance of the award passed by the National
Lok Adalat, the petition is preferred on the ground of fraud and
misrepresentation.
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5. Learned Counsel for the petitioner submits that the award
passed by the National Lok Adalat on 17.03.2019 is vitiated by fraud
and misrepresentation. The petitioner has a right of inheritance and
he was necessary party. The respondents suppressed material facts
and obtained impugned award on the same date. The impugned
award is passed in very casual manner and mechanically which has
resulted into miscarriage of justice. Learned Counsel Smt. Dube
submits that the mandatory procedure contemplated by the Order 1,
Rule 8(1)(b) and Order 23, Rule 3(b)(2) have not been followed.
Without seeking permission of the Court, the respondent no.2 acted
on behalf of respondent no.3 by tendering power of attorney. The
impugned award is void. It is further submitted that the petitioner
has no alternate remedy of filing suit challenging the judgment and
award passed by the Lok Adalat. Neither can she challenge the
award passed by the National Lok Adalat by preferring any appeal in
view of Section 21(1) of the Legal Services Authorities Act, 1987.
6. Learned Counsel for the petitioner seeks to rely upon the
judgment rendered by the Division Bench of Hyderabad High Court
in the matter of P. Naresh Kumar Vs. Secretary Legal Services
Authority and Others in Writ Petition No. 1932/2020; judgment
passed in the matter of Dinkar Indrabhan Kadaskar and Others Vs.
Grampanchayat Bhagwatipur and Others, 2009(1) Bom.C.R. 39.
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7. Per contra, learned Counsel for the respondents supports
impugned award passed by the Lok Adalat. He has raised objection
for the maintainability of the petition by relying upon the judgment
passed by the Division Bench of Andhra Pradesh High Court in the
matter of Batchu Subba Lakshmi and Others Vs. Sannidhi Srinivasulu
and Others. He would submit that the writ petition is not
maintainable because the petitioner is a third person and he was not
party to the litigation. The petitioner has remedy of preferring
independent suit challenging award passed by the National Lok
Adalat on the ground of fraud, misrepresentation or violation of
statutory procedures.
8. Learned Counsel for the respondent has invited my attention to
the plaint in RCS No.101/2022 instituted by the petitioner against the
respondents and others for partition, possession and declaration.
The compromise deed filed in RCS No.174/2019 is sought to be
challenged in the suit. For that reason also, the maintainability of
the petition is objected. He would further submit that the respondent
no.3 was the exclusive owner of the suit land and had right to
execute Heeba in favour of the respondent no.1. There are disputed
questions of facts and intricate issues involved in the matter which
cannot be decided by writ Court.
9. I have considered rival submissions of the parties. Admittedly,
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petitioner was not party to RCS No.174/2019. He was not signatory
to the terms of settlement and he was not present before the
National Lok Adalat. As per Section 21(2) of Legal Services
Authorities Act, 1987, the award passed by the Lok Adalat is final
and binding between the parties and appeal is not maintainable
against them. Section 21(2) reads as follows :
"21. Award of Lok Adalat .[(1) Every award of the Lok Adalat shall be deemed to
be a decree of a Civil Court or, as the case may be, an order of any other Court
and where a compromise or settlement has been arrived at, by a Lok Adalat in a
case referred to it under sub-section (1) of section 20, the Court-fee paid in such
case shall be refunded in the manner provided under the Court-Fee Act, 1870 (7 of
1870)].
(2) Every award made by a Lok Adalat shall be final and binding on all the
parties to the dispute, and no appeal shall lie to any Court against the award.
10. It relevant to refer to Order 23 Rule 3(a) of the Civil Procedure
Code which is as follows :
"3A. Bar to Suit _ No suit shall lie to set aside a decree on the ground that
the compromise on which the decree is based was not lawful."
. The above section prohibits filing of the suit challenging
compromise decree. The petitioner was not a party to the suit and
the compromise terms culminated into award passed by the Lok
Adalat. He is challenging award passed by the National Lok Adalat
on the ground of (i) fraud, (ii) misrepresentation and suppression of
material facts; (iii) violation of statutory procedure contemplated by
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Order 23 Rule 3(b)(2) and Order 1 Rule 8(b)(d). (iv) The award was
not lawful.
11. It is trite law that fraud vitiates everything. The decree passed
by the Civil Court or award of the National Lok Adalat obtained by
fraud is nullity. Such an award/decree is Non-est. Aggrieved party
has every right to challenge such an award. Only fulcrum of the
issue is before which forum it is to be challenged.
12. Learned Counsel for the respondents has referred to the
judgment rendered by the Division Bench of Andhra Pradesh High
Court in the matter of Batchu Subba Lakshmi (supra). In that case,
the petitioners before the Division Bench were not party to the suit
and award passed by the Lok Adalat. They had challenged award
passed by the Lok Adalat directly by preferring writ petition, albeit
challenge to award in execution had rendered unsuccessful.
Paragraph No.8 is relevant which is as follows :
"8. The parties to the compromise or settlement, which is the basis for award of
Lok Adalat, no doubt entitled to challenge the award on any of the grounds
referred to herein above grounds. Ordinarily, a third party cannot challenge the
award in a writ petition even if such award causes prejudice. The remedy of such
party would be to institute a separate suit or proceeding for necessary redressal
and seek appropriate decree of declaration by filing a suit within the period of
limitation prescribed under law. u/s 34 of the Specific Relief Act, 1963, any person
entitled to legal character or any right as to any property, may file a suit for
declaration. Under this provision, any person can even institute a suit for
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declaration that the decree passed by Civil Court in an earlier suit is not binding
on him. When a civil Court can even declare that an earlier decree of the Court is
not binding on the party before it, we do not see any objection for a third party
to institute a suit in a civil Court seeking a declaration that the award of Lok
Adalat is not binding on him/her subject to the law of limitation. We however
hasten to add that there may be extraordinary cases where a third party is meted
with injustice at the behest of two or more conniving and colluding parties, who
may have obtained an award of Lok Adalat by fraud or misrepresentation only to
defeat the rights of such third party. In such cases within a reasonable period
such third party may maintain a writ petition. But in such cases, there should be
prima facie evidence of fraud or misrepresentation or collusion in obtaining the
award of Lok Adalat. Even if such allegations are made and the question involves
complicated questions of fact requiring voluminous evidence, third party should be
left to seek remedy in a civil Court rather than preferring extraordinary remedy
under Article 226 of Constitution."
13. The writ petition was dismissed by the Division Bench of
Andhra Pradesh High Court. However no findings were recorded
whether writ petition at the instance of a party who was not
impleaded before the Civil Court or Lok Adalat could maintain the
petition. On facts of that case, the writ petition found to be not
entertainable due to latches. Hence this judgment is of little
assistance to this Court.
14. Learned Counsel for the petitioner submitted that the writ
petition under Article 226 and 227 of the Constitution of India is the
only remedy and filing of separate suit is impermissible. The reliance
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is placed upon the judgment of the Division Bench of the Hyderabad
High Court in the matter of P. Naresh Kumar (supra). She has
referred to paragraph no.13 and 14. Though the judgment of the
Division Bench of Andhra Pradesh High Court in the matter of
Batchu Subba Lakshmi (supra) was referred in paragraph no.9 of the
judgment, it is neither relied nor distinguished by the subsequent
Division Bench.
15. The facts of the subsequent Division Bench of Hyderabad High
Court reveals that the petitioner was not party to the proceeding but
had a right of inheritance. In that case, the petitioner had also
challenged alienation of the suit property, in addition to award passed
by the Lok Adalat. On peculiar facts of that case, it was found that
the petitioner was having subsisting title and interest over the suit
property. The award passed by the Lok Adalat was declared to be
null and void and for the relief of declaration, the petitioner was
diverted to avail the remedy of the suit. On facts, I find that this
judgment of Hyderabad High Court does not assist this Court.
16. It would not be out of context to refer to the judgment of
learned Single Judge (Coram : Ravindra V. Ghuge, J.) in the matter
of Kusumbai Ramesh Palve and Others Vs. Bhausaheb Barku Palve
and Others in Writ Petition No.10639/2018 decided on 28.03.2019.
Paragraph No.12 of the judgment reads as follows :
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"12. It is true that a party aggrieved by the Lok Adalat award can approach the
High Court if it discovers any fraud post the Lok Adalat award. It is equally true
that the third party, which is not a litigant in a suit which has suffered a
compromise decree, can also file a separate suit for seeking a declaration that
such decree which affects the rights of the third party, would not be binding upon
the said party as the said decree was delivered in the matter in which, such third
party was never arrayed. It, therefore, appears that an option to either prefer a
separate suit or file a writ petition in the High Court would be available to such
third party. At times, the issue of limitation would crop up and the suit to be
preferred by such third party might be barred, of course, subject to the date of
the knowledge of such decree."
17. I am of the considered view that the remedy for the third party
to challenge award passed by the Lok Adalat on the ground of fraud
is to either prefer independent civil suit or to approach High Court.
18. The petitioner has challenged award on the ground of fraud,
misrepresentation, violation of statutory procedure etc. The petition
involves disputed questions of facts. Though the petitioner is
claiming right of inheritance, the respondents have contested the
same. There are debatable questions of facts which cannot be
adjudicated in writ jurisdiction.
19. Interestingly, it has been brought on record that the petitioner
has already instituted RCS No.101/20222 against the respondents
before the Civil Judge, Junior Division, Ausa for declaration and
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injunction. Though specifically award passed by the Lok Adalat on
17.03.2019 has not been challenged and prayed to be set aside, but
following reliefs are sought :
"23. The plaintiff craves leaves to amend, alter or delete the contents of the plaint
with prior permission of this Hon'ble Court. An affidavit of Plaintiff in support of above
contents is attached herewith.
Hence prayed : suit of the plaintiff may kindly be decreed as under :
(1) The suit property may kindly be partitioned and Plaintiff may kindly be given
his lawful/legitimate ½ share in respect of suit property/ land described in
schedule A and B of Para No.3 of the plaint.
(2) Decree of this suit may kindly be sent to Collector for it 's execution under
Section 54 of C.P.C.
(3) It may kindly be declared that the said Hibba of Ramzan Eid 2018 between
defendant no.1 and deceased Amirsab Ansari is bogus and illegal.
(4) It may kindly be declared that the Mutation Entry No.764 of dated
30/07/2020 is prima facie illegal, Non-Est and not binding on the rights of
plaintiff.
(5) It may kindly be declared that the said Kul Adhikar Patra (Power of Attorney)
on stamp paper of Rs.100/- of dated 01/02/2019 is bogus and illegal.
(6) It may kindly be declared that compromise deed (Tadjod-Patra) in R.C.S.
No.174/2019 is bogus and illegal and against the law.
(7) It may kindly be declared that the Mutation Entry No.764 dated 30/07/2020
is illegal, Non-Est and not binding on the legal rights of plaintiff.
(8) That any other relief which plaintiff is entitled may kindly be given in favour
of her, in the interest of Justice, Equity and Good Conscience.
20. Thus the petitioner has already instituted a suit and has option
either to amend the suit or prefer fresh suit challenging award
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passed by the Lok Adalat on the various grounds. For that reason
also I am not inclined to grant relief to the petitioner.
21. For the reasons stated above, I find no merit in the writ
petition. The writ petition is dismissed. However, petitioner shall be
at liberty either to challenge award passed by the Lok Adalat on
17.03.2019 by amending the plaint of RCS No. 101/2022 or to file
independent suit. Rule is discharged.
22. Civil application stands disposed of.
[SHAILESH P. BRAHME, J.]
NAJEEB....
