Chattisgarh High Court

Rajinder Singh Ajmani vs Fulkunwar on 24 June, 2021

                                         1

                                                                          AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                               F.A No.162 of 2017
                           Reserved on 16.06.202 1
                          Pronounced on 24.06.2021

   Rajinder Singh Ajmani S/o Late Shri Sant Singh, Aged About 46 Years R/o
   Near Itwari Bazar, P.S. City Kotwali, Raigarh, Tahsil And District Raigarh,
   Chhattisgarh .............Plaintiff                         ---- Appellant
                                     Versus
1. Fulkunwar Wd/o Fagulal, Aged About 48 Years R/o Kewadabadi,
   Puchhapara, Near Shiv Mandir, Kumharpara, P.S. City Kotwali, District
   Raigarh, Chhattisgarh
2. Raghunath (Died) Through Lrs. As Per Honble Court Order Dated 03-12-
   2020.
   2.1 - (A). Phool Bai Wd/o Raghunath Aged About 52 Years
   2.2 - (B). Ku. Harita D/o Raghunath Aged About 31 Years
3. Kumari Aashachakradhari D/o Late Faguram, Aged About 21 Years R/o
   Kewadabadi, Puchhapara, Near Shiv Mandir, Kumharpara, P.S. City
   Kotwali, District Raigarh, Chhattisgarh
4. Gopi Chakradhari S/o Late Faguram, Aged About 19 Years R/o
   Kewadabadi, Puchhapara, Near Shiv Mandir, Kumharpara, P.S. City
   Kotwali, District Raigarh, Chhattisgarh........Defendant
                                                            ------Respondents

For Appellant: Shri Palash Tiwari, Advocate. For Respondents No.1, 3 & 4: Shri Rajendra Tripathi, Advocate. For Respondents No.2a & 2b: None, though served.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J C A V Judgment

1. This Appeal has been preferred by the Plaintiff under Section 96 of

the Code of Civil Procedure, 1908 (for short 'the CPC') questioning the

legality and propriety of the judgment and decree dated 11.04.2013

passed in Civil Suit No.20-A/2012 whereby, the trial Court has dismissed

the claim holding it to be barred by the principles of res judicata under

Section 11 of the CPC. The parties to this Appeal shall be referred

hereinafter as per their description in the Court below.

2. Briefly stated the facts of the case are that the Plaintiff-Rajinder

Singh Ajmani instituted a suit claiming specific performance of contract

with regard to the property in question bearing Nazul Sheet No.41 Plot

No.86/1 and 2.40 acres situated at Puchpara (Raigarh) by submitting inter

alia that it was agreed to be sold by one Bhaguram, the predecessor in

interest of Defendant No.1 (Fulkunwar), Defendant No.2-Raghunath (since

deceased now represented by his legal representatives namely Phul Bai

and others) and Defendants No.3 & 4 (Ku. Asha Chakradhari and Gopi

Chakradhari) by executing the agreement to sale dated 21.01.1997 for a

consideration of Rs.9,60,000/- upon receiving the earnest amount of

Rs.1,00,000/-. It is pleaded that since the religious monastery ( math),

which was situated over it and therefore, the registered deed of sale was

required to be executed for its removal by the vendors. According to the

Plaintiff, the Defendants have obtained a sum of Rs.7,60,000/- in

pursuance of the alleged agreement to sale from him on different dates

and despite of his request, the said monastery was not removed and

instead, have tried to alienate the same to someone else, therefore, the

notice dated 30.03.2012 was issued by him and for its specific

performance, pre-litigation claim was instituted before the permanent Lok

Adalat under Section 22 of the Legal Services Authorities Act, 1987 (for

short 'the Act of 1987). It is pleaded further that in the said proceedings,

the Defendants have submitted a compromise application after receiving

the rest of the sale consideration and have assured to execute the

registered deed of sale within a period of 10 days. However, they failed to

execute the same, which led to the institution of the suit on 02.07.2012 in

the instant nature.

3. The Defendants, in their written statement, have accepted the claim

of the Plaintiff and have raised no objection if a decree for a specific

performance of contract is granted in his favour.

4. The trial Court, by its impugned judgment and decree, has arrived

at a conclusion that since the said pre-litigation claim bearing No.139/2012

as instituted by the Plaintiff has been closed by the Lok Adalat vide order

dated 06.05.2012 declining to grant the relief of specific performance of

contract, therefore, the suit as framed seeking the same relief is hit by the

principles of res judicata as provided under Section 11 of the CPC and in

consequence, rejected the Plaint.

5. The question which arises for determination in this Appeal is:-

" Whether the Court below has committed an illegality in holding that the claim as made for specific performance of contact is hit by the principles of res judicata under Section 11 of the CPC ?"

6. Shri Palash Tiwari, learned Counsel appearing for the

Appellant/Plaintiff, while referring to the order dated 06.05.2012 passed in

pre-litigation Case No.139/2012 by the permanent Lok Adalat at Raigarh

submits that in fact, the said authority, without entering into the merits of

the case, has disposed of the same by granting liberty to the parties to

take a recourse before the appropriate forum in accordance with law and

as such, the Court below ought not to have dismissed the claim holding it

to be barred by the principles of res judicata. According to him, the

principles of res judicata would be attracted only if the case is decided by a

speaking order upon adjudicating the issues of the parties. It is contended

further that since the permanent Lok Adalat has neither dismissed the said

pre-litigation claim of the Plaintiff nor any award was passed therein, the

Court below has, therefore, committed a serious illegality in dismissing the

claim by applying the principles of res judicata. In support, he placed his

reliance upon the decisions rendered in the matters of Union Territory Vs.

Permanent Lok Adalat & Another, BP Moideen Sevamandir & Another Vs.

A M Kutty Hassan, Syed Mohd. Salie Labbai (Dead) by Lrs and others vs.

Mohd. Hanifa (Dead) by Lrs. And others and Ramnik Vallabhdas Madhvani

& Ors Vs. Taraben Pravinlal Madhvani reported in 2009 (1) ILR (P&H)

424, (2009) 2 SCC 198, AIR 1976 Supreme Court 1569 and (2004) 1

SCC 497 respectively.

7. On the other hand, learned Counsel for the Respondents No.1 3 &

4 have supported the judgment and decree impugned as passed by the

trial Court.

8. I have heard learned Counsel for the parties and perused the entire

relevant papers annexed with this Appeal carefully.

9. It appears from the perusal of the record that a claim for specific

performance of contract based upon an agreement to sale dated

21.01.1997 has been instituted by the Plaintiff with regard to the property

in question described in Plaint Schedule - A. According to him, it was

agreed to be sold by the predecessor in interest of the Defendants for a

consideration of Rs.9,60,000/- and the sale was required to be executed

after the removal of the monastery from it. Further contention of the

Plaintiff was that despite receiving the entire sale consideration on different

dates, the Defendants have failed to perform their part of the contract,

which compelled him to initiate a pre-litigation proceeding before the

permanent Lok Adalat under Section 22 of the Act of 1987. It appears

further that the proceedings so initiated were, however, disposed of by the

said authority vide order dated 06.05.2012 by observing inter alia that the

claim appears to be beyond its purview and accordingly, liberty was

granted to the parties to take a suitable recourse as provided under the

law. The said pre-litigation proceeding was thus, neither dismissed by the

said authority nor any award was passed therein. It thus, appears that in

the said pre-litigation, no adjudication was made by the permanent Lok

Adalat.

10. Before considering the applicability of the principles of res judicata

as provided under Section 11 of the CPC, it is necessary to examine the

functioning of the Lok Adalat established under Section 22-B of the Act of

1987 and while interpreting the provisions contained under Chapter-6A of

the said Act of 1987, it was observed in Union of India Vs. Permanent Lok

Adalat (supra) that the Legal Services Authority Act has been enacted as

an alternative dispute resolution for resolving the dispute in a spirit of

conciliation outside the Court and its object is mainly on the basis of

compromise or settlement between the parties. The relevant observations

made at paragraphs-8 to 11 read as under:-

8. Thereafter, the Act was amended vide Act No. 37 of 2002 by inserting Chapter VIA. Certain provisions of the Act, as amended, which are relevant read as under:

2. Definitions: (1) In this Act, unless the context otherwise requires,-

(a) "case" includes a suit or any proceeding before a court;

(aaa) "court" means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions.

22A. Definitions: In this Chapter and for the purpose of Sections 22 and 23, unless the context otherwise requires,-

(a) "Permanent Lok Adalat" means a Permanent Lok Adalat established under Sub-section (1) of Section 22B.

(b) "public utility service" means any-

(i) transport service for the carriage of passengers or goods by air, road or water; or

(iii) supply of power, light or water to the public by any establishment; or

(iv) system of public conservancy or sanitation; or

(v) service in hospital or dispensary; or

(vi) insurance service, and includes any service which the Central Government or the State Government, as the case may be, in the public interest, by notification, declare to be a public utility service for the purpose of this Chapter.

22B. Establishment of Permanent Lok Adalats.- (1) Notwithstanding anything contained in Section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification.

(2) Every Permanent Lok Adalat established for an area notified under Sub-section (1) shall consist of-

xx xx xx xx xx xx xx   xx xx xx xx xx xx xx    xx x xx xx
xx xx

22C. Cognizance of cases by Permanent Lok Adalat: (1) Any party to a dispute may, before the dispute is brought before any court, make an application to the "Permanent Lok Adalat for the settlement of dispute:

Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:

Provided further that the Permanent Lok Adalat shall also not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees:

Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.

(2) After an application is made under Sub-section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute.

(3) Where an application is made to a Permanent Lok Adalat under Sub-section (1),it-

(a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application;

(b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings;

(c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto.

(4) When statement, additional statement and reply, if any, have been filed under Sub-section (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute.

(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under Sub-section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner.

(6) It shall be the duty of every party to the application to cooperate in good faith with, the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.

(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned.

(8) Where the parties fail to reach at an agreement under Sub-section (7), the Permanent Lok Adalat shall, if the dispute did not relate to any offence, decide the dispute.

22D. Procedure of Permanent Lok Adalat- The Permanent Lok Adalat shall, while conducting

conciliation proceedings or deciding a dispute on merit under this Act, be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) and the Indian Evidence Act, 1872 (I of 1872).

9. Learned Counsel for the petitioner has vehemently argued that the disputes regarding title are not contemplated to be adjudicated upon by the Permanent Lok Adalats which have been constituted keeping in view Article 39-A of the Constitution. The Permanent Lok Adalats have the jurisdiction in respect of public utility service i.e., services which a citizen avail in his normal day to day working of life but does not include contentious issues which have to be adjudicated upon by the Civil Court alone. It is contended that housing and estates is though a public utility service but it is in respect of day to day grievances of the citizens in respect of the house projects, whereas in the present case, Permanent lok Adalat has assumed jurisdiction in respect of title of the property. Such disputes cannot be adjudicated upon in a summary manner. Permanent Lok Adalat is to conduct proceedings to reach an amicable settlement. The power to decide dispute under Sub-section (8) is not plenary power but will take its colour from the preceding provision of Section 22C. It is also argued that Permanent Lok Adalat has the jurisdiction to entertain dispute at pre-litigation stage alone.

10. The Act has been enacted as an alternative dispute resolution for resolving the disputes in a spirit of conciliation outside the Court. Chapter VIA has been introduced with the object that though the system of Lok Adalat is mainly based on compromise or settlement between the parties but if the parties do not arrive at compromise or settlement, the case is either returned to the Court of law or the parties are advised to seek remedy in the Court of law. To avoid unnecessary delay in the dispensation of justice, Lok Adalats were given the powers to decide the cases on merit as well. Still further, the cases of public utility service need to be settled urgently so that people can get justice and most of the petty cases which ought not to go in the regular courts may settle at pre- litigation stage.

11. Therefore, Permanent Lok Adalat though has the power to decide the cases on merit but such decision is at pre- litigation stage and where relief claimed is urgent and in petty cases. In the context of the aforesaid principle, present is a case where (sic) numerous civil Court decrees for and against the parties. The decrees cannot be said to be binding on the parties which are not before the Court. Such disputes

are not intended to be decided by the Permanent Lok Adalat. Permanent Lok Adalats are not alternative courts but have been established to provide immediate relief to the aggrieved citizens against the inaction or wrongful action of the authorities dealing with public utility service in day to day life. The present dispute is beyond the scope of Permanent Lok Adalats.

11. It is thus evident that the object of the enactment of the Act of 1987

is for resolving the dispute alternatively on the basis of conciliation outside

the Court, though the permanent Lok Adalat has the power to decide the

cases on merit, but such decision is at pre-litigation stage only and if the

parties do not arrive at a compromise or settlement, the case is either

returned to the Court of law or the parties are advised to seek remedy as

provided under the law.

12. Yet, in the matter of BP Moideen Sevamandir Vs. A M Kutty Hassan

(supra) it has been observed by the Supreme Court at paragraph-7 as

under:-

"7. It is unfortunate that the learned members of the Lok Adalat and the learned Single Judge totally lost sight of the purpose and scope of Lok Adalats. We may conveniently recall what this Court has said about the scope of Lok Adalats (after referring to the relevant provisions of the Legal Services Authorities Act, 1987), in State of Punjab vs. Jalour Singh (2008) 2 SCC 660

13. In so far as the applicability of the principles of res judicata is

concerned, it has been observed by the Supreme Court in the matter of

Syed Mohd. Salie Labbai (Dead) by Lrs and others vs. Mohd. Hanifa

(Dead) by Lrs. And others (supra) that in order to give effect to principles of

res judicata provided under Section 11 of the CPC, the following conditions

are required to be established.

(i) that the litigating parties must be the same;

(ii) that the subject matter of the suit also must be

identical;

(iii) that the matter must be finally decided between the

parties and ;

(iv) that the suit must be decided by a Court of competent

jurisdiction.

14. Likewise, in the matter of R.V Madhvani Vs. T P Madhvani (supra),

it has been held by the Supreme Court that the principle of res judicata

have no application where there is inherent lack of jurisdiction and while

relying upon the said principle, it was held by the Supreme Court in the

matter of Ashok Leyland Ltd Vs. State of Tamil Nadu (supra) at paragraph-

116 as under:-

"116. The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. This question has since been considered in Sri Ramnik Vallabhdas Madhvani and Ors. v. Taraben Pravinlal Madhvani : (2003 (9) Scale 412) wherein this Court observed in the following terms :

"So far as the question of rate of interest is concerned, it may be noticed that the High Court itself found that the rate of interest should have been determined at 6%. The principles of res judicata which according to the High Court would operate in the case, in our opinion, is not applicable. Principles of res-judicata is a procedural provision. The same has no application where there is inherent lack of jurisdiction.

In Chief Justice of A.P. and Anr. v. L.V.A. Dikshitulu and Ors. Etc. : [1979] SC 193 : (1979) 2 SCC 34), the law is stated in the following terms:

"23. As against the above, Shri Vepa Sarathy appearing for the respective first respondent in

C.A. 2826 of 1977, and in C.A. 278 of 1978 submitted that when his client filed a writ petition (No. 58908 of 1976) under Article 226 of the Constitution in the High Court for impugning the order of his compulsory retirement passed by the Chief Justice, he had served, in accordance with Rule 5 of the Andhra Pradesh High Court (Original Side) Rules, notice on the Chief Justice and the Government Pleader, and, in consequence, at the preliminary hearing of the writ petition before the Division Bench, the Government, Pleader appeared on behalf of all the respondents including the Chief Justice, and raised a preliminary objection that the writ petition was not maintainable in view of Cl. 6 of the Andhra Pradesh Administrative Tribunal Order made by the President under Article 371-D which had taken away that jurisdiction of the High Court and vested the same in Administrative Tribunal.

This objection was accepted by the High Court, and as a result, the writ petition was dismissed in limine. In these circumstances - proceeds the argument - the appellant is now precluded on principles of res judicata and estoppel from taking up the position, that the Tribunal's order is without jurisdiction. But, when Shri Sarathi's attention was invited to the fact that no notice was actually served on the Chief Justice and that the Government Pleader who had raised this objection, had not been instructed by the Chief Justice or the High Court to put in appearance on their behalf, the counsel did not pursue this contention further. Moreover, this is a pure question of law depending upon the interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in the case."

In Dwarka Prasad Agarwal (D) By LRs. and Anr.

v. B.D. Agarwal and Ors. (2003) 6 SCC 230, it is stated:

"It is now well-settled that an order passed by a Court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in

particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such."

15. Applying the aforesaid principles of the case in hand, where as

observed hereinabove and as reflected from a bare perusal of the order

dated 06.05.2012 passed in pre-litigation Case No.139/2012 that the

permanent Lok Adalat has not decided the lis finally and in fact, a liberty

was provided to the parties to take appropriate steps as provided under

the law. In view of the said background, it cannot be said from any stretch

of imagination that the claim of the Plaintiff for the specific performance of

contract is hit by principles of res judicata under Section 11 of CPC as held

by the Court below.

16. Accordingly, the Appeal is allowed and the impugned judgment and

decree dated 11.04.2013 passed by the 1 st Additional District Judge,

Raigarh in Civil Suit No.20-A/2012 is hereby set aside and the matter is

remitted back to the said Court and/or the concerned Court with a direction

to restore the suit in its file and decide the same on merits in accordance

with law.

17. Shri Tiwari, learned Counsel appearing for the Appellant/Plaintiff

now submits that in view of the provisions prescribed under Section 13 of

the Court-fees Act, 1870 (hereinafter referred to as 'the Act') the Court fee

paid on memorandum of Appeal is liable to be refunded and has placed his

reliance upon the decisions rendered in the matters of Chandra Bhushan

Misra Vs. Smt Jayatri Devi reported in AIR 1969 Allahabad 142 and

State of Uttar Pradesh Vs. Chandra Bhushan Misra reported in (1980) 1

SCC 198.

18. For consideration of aforesaid contention of Mr. Tiwari, it is

necessary to examine the said provision of the Act, which reads as under:-

"13. Refund of fee paid on memorandum of appeal.-- If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal:

Provided that if, in the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded."

19. The aforesaid provision was explained by the Full Bench of the

Allahabad High Court in the matter of Chandra Bhushan Misra Vs. Jayatri

Devi (supra) and the order for refund of the Court fees was passed and

which was affirmed further by the Supreme Court in the matter of State of

Uttar Pradesh Vs. Chandra Bhushan Misra (supra).

20. It is thus clear from the aforesaid propositions that at the time of

remanding the matter, the Court fee paid in memorandum of appeal can be

refunded in exercise of the powers enumerated under Section 13 of the

Act.

21. Since I have remanded the matter to the concerned trial Court upon

setting aside the aforesaid findings of the trial Court for adjudication of the

case on merits, the Appellant/Plaintiff is, therefore, entitled to get back the