Shaiju A. vs Kerala State Mediation And ...
2021 Latest Caselaw 6008 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

  FRIDAY, THE 19TH DAY OF FEBRUARY 2021/30TH MAGHA,1942

                 WP(C).No.3808 OF 2021(A)


PETITIONERS:

     1     SHAIJU A., S/O.ABBASKUNJU,
           AGED 51 YEARS, HEERA KINARA CLASSIC,
           PATTOM PALACE, KESAVADASAPURAM,
           THIRUVANANTHAPURAM - 695

     2     SHEENA BEEGUM, AGED 49 YEARS,
           W/O.SHAIJU A., HEERA KINARA CLASSIC,
           PATTOM PALACE, KESAVADASAPURAM,
           THIRUVANANTHAPURAM - 695

           BY ADVS.
           SRI.P.SIVARAJ
           SRI.I.P.VARGHESE
           SMT.R.SUDARSANA DEVI
           SMT.M.M.LAIJU NISSA
           SMT.M.MEHAR FARSANA

RESPONDENTS:

     1     KERALA STATE MEDIATION AND CONCILIATION CENTRE
           HIGH COURT OF KERALA, KOCHI - 682 031,
           REPRESENTED BY ITS SECRETARY.

     2     ASHRAF, S/O.MOHAMMED KUNJU, ADIL HOME,
           KANNANELLOOR P.O., KOLLAM - 691 576.

     3     SHALINA BEEVI, W/O.ASHRAF, ADIL HOME,
           KANNANELLOOR P.O., KOLLAM - 691 576.

           R2 BY ADV. SRI.R.KISHORE (KALLUMTHAZHAM)
           GOVERNMENT PLEADER SMT. DEEPA NARAYANAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.3808/2021
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 19th day of February, 2021

The petitioners have filed this writ petition seeking

to declare that Ext.P1 Memorandum of Settlement can be

executed as a decree through a court of law.

2. Advocate Kishore R., who appeared for the 2nd

respondent, submitted that the name of the 3rd respondent

shown in the writ petition as wife of the 2nd respondent is

incorrect. The learned counsel further submitted that he is

authorised to appear on behalf of the wife of the 2 nd

respondent also.

3. There are certain civil disputes between the

petitioners and respondents 2 and 3. Perhaps, as a

consequence of the civil disputes between the petitioners and

respondents 2 and 3, a criminal case happened to be filed

against the 1st petitioner as CC No.1348/2018 before the

Judicial First Class Magistrate's Court-I, Punalur. The WP(C) No.3808/2021

petitioners approached this Court filing Crl.M.C. No.1380/2019

against the proceedings dated 23.11.2018 in CC

No.1348/2018 of the JFCM-I, Punalur. The learned Single

Judge, who heard the matter, referred the case for mediation.

Accordingly, a settlement was arrived at between the parties,

as evidenced by Ext.P1.

4. The contention of the petitioners is that in

pursuance of Ext.P1 settlement and as agreed therein, the

petitioners have discharged their part of the obligations and

have imparted an amount of ₹1,06,00,000/- to the KSFE,

Kollam. However, respondents 2 and 3 are not discharging

their part of the obligations arising under Ext.P1.

5. Left with no remedy to execute Ext.P1, the

petitioners preferred Crl.M.A. Nos.1 and 2 of 2020 and

approached the Bench which delivered the order in Crl.M.C.

No.1380/2019 seeking for appropriate directions to

respondents 2 and 3 to comply with the directions in the

settlement agreement. The learned Single Judge, by Ext.P5

order, held that the only option available to the petitioners to WP(C) No.3808/2021

execute the mediated settlement is to exercise jurisdiction of

the civil court. With the said observations, Crl.M.A. Nos.1 and

2 of 2020 were dismissed.

6. The petitioners are now before this Court to invoke

writ jurisdiction of this Court to execute the settlement. The

learned counsel for the petitioners argued that once the Court

refers a dispute for mediation for settlement and a settlement

is arrived at between the parties in such proceedings, the

Court has a duty to see that the mediated settlement is

executed and enforced. Once the Court has recorded the

mediation settlement in its order/judgment, it is the bounden

duty of the Court to see that the terms of the settlement are

adhered to by the parties to the mediated settlement.

7. The learned counsel for the petitioners further

argued that under Order XXIII Rule 3 CPC, where it is proved

to the satisfaction of the Court that a suit has been adjusted

wholly or in part by any lawful agreement or compromise, the

Court shall order such agreement, compromise or satisfaction

to be recorded, and shall pass a decree in accordance WP(C) No.3808/2021

therewith. In the petitioners' case, the failure of this Court to

pass a decree in terms of the mediated settlement cannot be

a reason to deny benefit of the settlement to the writ

petitioners, contended the counsel for the petitioner.

8. The learned counsel for the petitioners strongly

argued that technicalities in these matters should not come in

the way of execution of mediated settlement. Parties who

have appeared before this Court and who have agreed for a

mediated settlement, shall not be permitted to go back from

the terms of the settlement. The learned counsel for the

petitioners further argued that under Article 226 of the

Constitution of India, this Court has ample power to see that a

mediated settlement arrived at the instance of this Court is

enforced treating the same as a decree of a Court. In the

circumstances, this Court shall pass appropriate orders

enforcing the terms of Ext.P1 mediated settlement, contended

the learned counsel for the petitioners.

9. The learned counsel appearing for respondents 2

and 3, on the other hand, contended that the settlement WP(C) No.3808/2021

arrived at through mediation was as a part of criminal

proceedings. Therefore, Ext.P1 settlement will not have the

characteristics of a judgment of a civil court. It is only a

judgment of a civil court which can result in a decree and it is

only a decree of a civil court which can be executed. The only

remedy available to the petitioners is to invoke their civil

remedies. This Court cannot, in exercise of the powers

conferred under Article 226 of the Constitution, execute Ext.P1

settlement.

10. The learned counsel for respondents 2 and 3 relied

on a judgment of the Hon'ble Delhi High Court in CRL.REF.

No.1/2016 (Dayawati v. Yogesh Kumar Gosain) and

contended that a settlement arrived at in the course of a

criminal case cannot be enforced treating it as a decree.

11. Heard learned counsel for the petitioners and

learned counsel for respondents 2 and 3.

12. It is true that there was a mediation between the

parties pursuant to the orders of this Court in a proceeding

under Section 482 Cr.P.C. The mediation has resulted in a WP(C) No.3808/2021

settlement. However, the said mediated settlement cannot be

made a decree of the court since the settlement was arrived at

in the course of criminal proceedings. The arguments of the

counsel for the petitioners based on Order XXIII Rule 3 CPC

cannot be accepted. Order XXIII Rule 3 deals with

compromise of a suit. Any compromise arrived between the

parties other than in a suit, cannot be a subject matter of

Order XXIII Rule 3.

13. Furthermore, the Bench which has recorded the

compromise between the parties, has already held that the

option available to the petitioners to execute the mediated

settlement is by exercising jurisdiction of the civil court.

14. It is to be noted that respondents 2 and 3 have a

specific case that the petitioners have not discharged their

obligations under the mediated settlement. Since there are

disputes between the parties as to the discharge or otherwise

of the obligations arising out of the mediated settlement, it will

not be proper for this Court to pass any orders to execute

Ext.P1 settlement. The remedy available to the petitioners is WP(C) No.3808/2021

to approach the civil court treating the mediated settlement as

an agreement between the parties. The jurisdiction of this

Court under Article 226 of the Constitution cannot be

exercised in the manner desired by the petitioners.

The writ petition therefore fails and it is

consequently dismissed leaving open the remedy of the

petitioners to get the mediated settlement executed through

any other appropriate proceeding.

Sd/-

N. NAGARESH, JUDGE

aks/19.02.2021 WP(C) No.3808/2021

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF MEMORANDUM OF AGREEMENT DTD.

                     27/02/2020     ENTERED     INTO     BETWEEN
                     PETITIONERS AND RESPONDENTS 2 AND 3.

EXHIBIT P2           TRUE COPY OF ORDER DTD. 03/03/2020 IN

CRL.M.C.NO.1380 OF 2019 OF THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF THE ORDER DTD. 13/07/2020 IN I.A.NO.1 OF 2020 IN O.S.NO.280 OF 2020 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM.

EXHIBIT P4 TRUE COPY OF THE ORDER DTD. 13/07/2020 IN E.A.NO.107 OF 2020 IN E.P.NO.69 OF 2020 OF MUNSIFF COURT, KOLLAM.

EXHIBIT P5           TRUE COPY OF ORDER DTD.          22/10/2020    IN
                     CRL.M.APPLN.NOS.1   AND  2       OF   2020     IN
                     CRL.M.C.NO.1380 OF 2019.

EXHIBIT P6           TRUE COPY OF THE INJUNCTION ORDER PASSED

IN FAVOUR OF 1ST PETITIONER IN I.A.NO.30 OF 2020 IN UNNUMBERED O.S.B THE ADDITIONAL DISTRICT JUDGE'S COURT-IV, KOLLAM (VACATION COURT).

EXHIBIT P7 TRUE COPY OF THE PROSECUTION PETITION FILED BY THE 1ST PETITIONER FOR VIOLATING EXT.P6 INJUNCTION ORDER.

EXHIBIT P8 TRUE COPIES OF WITHDRAWAL MEMOS FILED BY THE LEARNED COUNSEL IN CRL.M.C.1380/2019 AND OP(C)NO. 64 OF 2021.

EXHIBIT P9 TRUE COPY OF WITHDRAWAL MEMO IN OP(C) 64/2021.

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