Ct.32 vs (S.R.) Sri Manas Das & Ors
2023 Latest Caselaw 2014 Cal

                                    FA 47 of 2023
N.22Sl                             FAT 52 of 2022
151/CL                                  with
  27.03.23                          CAN 2 of 2022
   Sl-11                       Smt. Rakhi Patra (Das)
   Ct.32                                 v.
   (S.R.)                       Sri Manas Das & Ors.


             Mr. Sukanta Chakraborty
             Ms. Suparna Das
             Mr. Soumya Kanti Sinha
             Mr. Anindya Halder
             Mr. Juber Ahmed                      ... for the appellant.

             Mr. Goutam Kumar Das
             Mr. Atanu Basu
             Mr. Indranuj Dutta
             Mr. Bikram Basak     ... for the respondent nos.1 & 3.

The present appeal has been preferred challenging

the judgment and decree dated 27th August, 2021 passed

by the learned Civil Judge (Senior Division), 3 rd Court,

Paschim Medinipur in Title Suit no.450 of 2018. By the

said judgment the suit was dismissed as not maintainable

since the same was preferred seeking inter alia a

declaration that an award passed by the Lok Adalat is a

nullity. As a maintainability issue is involved and as all

the relevant documents are on record, the appeal itself is

taken up for final disposal with the consent of the parties,

dispensing all the formalities.

It appears that an application under Section 5 of the

Limitation Act has been inadvertently filed since there had

been no delay in preferring the appeal and accordingly,

the said application is dismissed. The application, being

CAN 2 of 2022, is an application for injunction and the

parties have exchanged their affidavits in the same.

Mr. Chakraborty, learned advocate appearing for the

appellant, namely, Rakhi Patra (Das) (in short, Rakhi)

submits that the respondent nos.1 and 2, namely, Manas

Das (in short, Manas) and Abhishek Das (in short,

Abhishek) are the brothers of Rakhi and the respondent

no. 3 namely, Namita Das (in short, Namita) is the mother

of Rakhi. In the year 2013, Rakhi came to learn that a

title suit being a Title Suit No. 358 of 2009 had been filed

by showing her as plaintiff no. 2 and the same had been

compromised on 22nd March, 2010 at Lok Adalat

purportedly on the basis of a solenama executed by the

parties therein. The wife of Manas impersonated Rakhi

before the Lok Adalat and obtained the award practising

fraud. The appellant never signed the alleged solenama

before the Lok Adalat on 22nd March, 2010. On the said

date Rakhi went to her school which is 66 kilometers

away from Midnapore town. The learned court below

dismissed the suit abruptly, without framing any issue

and erroneously observing that the suit is not a suit for

partition simplicitor failing to appreciate that the prayer

for partition in the suit was a consequential relief sought

for preceded by a declaration that the decree passed in

Title Suit No.358 of 2009 is a nullity. The learned Court

erred in law in not deciding the issue of fraud though

specifically pleaded.

Drawing our attention to the contents of the

judgment impugned, Mr. Chakraborty argues that on one

hand the learned court below observed that it had no

jurisdiction to declare the award of the Lok Adalat as null

and void and on the other hand proceeded to return a

finding that the suit was also barred by limitation. Such

directions are self-contradictory and the observations

pertaining to limitation are superfluous.

Mr. Dutta, learned advocate appearing for the

respondent nos.1 and 3 submits that the respondent no.2

had already sold out his share to the respondent no.1.

The allegations of fraud and misrepresentation, as urged,

are absolutely unfounded. From the averments made in

the plaint it would be explicit that the appellant came to

know about the Title Suit, being no. 358 of 2013 in the

year 2013. However, she did not take any appropriate

step in the said proceedings and filed the present suit

about five years thereafter without explaining the delay

which had occurred. No contemporaneous complaint was

lodged by Rakhi before any authority.

He submits that there is no infirmity in the

observation of the learned trial court that it had no

jurisdiction to declare the impugned Lok Adalat award as

null and void and not binding upon the parties. The Legal

Services Authorities Act, 1987 (in short, the 1987 Act) Act

does not contemplate nor require an adjudicatory judicial

determination, but a non-adjudicatory determination

based on a compromise or settlement, arrived at by the

parties, with guidance and assistance from the Lok

Adalat. The making of the award is merely an

administrative act of incorporating the terms of settlement

or compromise agreed by parties and no appeal lies

against the same. Such an award can only be challenged

by an application under Article 226 and/or 227 of the

Constitution of India. In support of such contention

reliance has been placed upon the judgment delivered in

the case of Bhargavi Constructions & Another vs.

Kothakapu Muthyam Reddy & Others, reported in 2018

(13) SCC 480.

We have heard the learned advocates appearing for

the respective parties and considered the materials on

record. It is no longer res integra that that no appeal lies

against the award of Lok Adalat and the remedy lies in

filing writ petition under Article 226 and/or 227 of the

Constitution of India.

In the case of Bhargavi Constructions & Another

(supra) the Hon'ble Supreme Court, considering its earlier

judgment, delivered in the case of State of Punjab vs.

Jalour Singh, reported in (2008) 2 SCC 660, observed as

follows:

'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 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'.

In view of such mandate of the Hon'ble Supreme

Court, the learned Court, in our opinion, did not commit

any error in holding that the suit was not maintainable.

In view thereof, no interference is called for in the present

appeal and the same along with the application being CAN

No. 2 of 2023 are dismissed.

However, when the suit itself was not maintainable

due to lack of inherent jurisdiction, the learned court

below ought not to have returned any finding as regards

limitation. The observation pertaining to the said issue

appears to be otiose.

Nothing in this order shall prevent the appellant from

taking necessary steps before the appropriate forum, if so

advised and in accordance with law.

Let a decree be drawn up, accordingly.

The appellant would be at liberty to take back the

certified copy of the judgment upon furnishing a photostat

copy of the same.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)