Ram Charan Tiwari vs Kailash Tiwari
2024 Latest Caselaw 15939 MP

Madhya Pradesh High Court

Ram Charan Tiwari vs Kailash Tiwari on 29 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                           1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 29th OF MAY, 2024
               WRIT PETITION No. 3369 of 2022

BETWEEN:-

RAM CHARAN TIWARI S/O KANCHEDI LAL
TIWARI, AGED ABOUT 71 YEARS, OCCUPATION:
AGRICULTURIST R/O H. NO. 158, SHASTRI
NAGAR, JABALPUR, DIST. JABALPUR (M.P.)
(MADHYA PRADESH)
                                                .....PETITIONER
(BY SHRI K.K.PANDEY - ADVOCATE)

AND

1.    KAILASH TIWARI S/O KANCHEDI LAL
      TIWARI,   AGED   ABOUT   55  YEARS,
      OCCUPATION: AGRICULTURIST R/O H.NO.
      6, AKASH VIHAR COLONY, VIJAY NAGAR,
      JABALPUR, DISTT.   JABALPUR (M.P.)
      (MADHYA PRADESH)

2.    RAKESH TIWARI S/O KAILASH TIWARI,
      AGED ABOUT 35 YEARS, OCCUPATION:
      AGRICULTURIST R/O H.NO. 6, AKASH
      VIHAR    COLONY,   VIJAY   NAGAR,
      JABALPUR, DISTT.  JABALPUR (M.P.)
      (MADHYA PRADESH)

3.    SOMESH TIWARI S/O KAILASH TIWARI,
      AGED ABOUT 32 YEARS, OCCUPATION:
      AGRICULTURIST R/O H.NO. 6, AKASH
      VIHAR    COLONY,   VIJAY   NAGAR,
      JABALPUR, DISTT.  JABALPUR (M.P.)
      (MADHYA PRADESH)

4.    COLLECTOR SAGAR      DISTRICT   SAGAR
      (MADHYA PRADESH)
                                      2


                                                          .....RESPONDENTS
      (RESPONDENTS NO.1 TO 3 BY SHRI MOHAN SAUSARKAR - GOVT. ADVOCATE)
     (RESPONDENT NO.4 BY SHRI MOHAN SAUSARKAR - GOVT. ADVOCATE)

           This petition coming on for admission this day, the court passed
     the following:
                                      ORDER

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-

i) Honourable Court kindly be pleased to call the entire record of P1 to P9 for kind perusal of this Honourable Court.

ii) Honourable Court, kindly be pleased to set aside the Lok Adalat order dated 10.7.2021 (Ann.P7) and decree, which is prepared on the basis of Lok Adalat dated 10.7.2021 (Ann.P-8) in the interest of Justice.

iii) Honourable Court may kindly be pleased to set aside the subsequent order which is passed by the revenue authority dated 28.9.2021 (Annex.P-10) on the basis of Lok Adalat order dated 10.7.2021.

iv) Any other reliefs, which deems fit and proper be also awarded in favour of the petitioner.

2. It is submitted by counsel for the petitioner that Kailash Tiwari respondent No.1 filed a suit for declaration of title and permanent injunction in respect of Khasra No.141 area. 0.292 hectare and Khasra No.142 area 0.105 hectare on the ground that the suit property has been bequeathed to him by his father, by will dated 10.8.2002. It is submitted by Counsel for the petitioner that civil suit was filed on 18.1.2021 and accordingly, notices were issued, and the case was fixed for 23.2.2021. On 23.2.2021 an observation was made by the trial Court that notices issued to the defendants have not been received

back, either served or unserved and accordingly, the case was adjourned for 27.3.2021. Later on, on the very same day, Shri Akhilesh Tiwari appeared on behalf of defendants No.1, 2 and 3, namely the petitioner, Rakesh Tiwari, son of Kailash Tiwari (plaintiff/ respondent No.1) and Somesh Tiwari, son of Kailash Tiwari (plaintiff/ respondent no.1) along with the written statement. On 27.3.2021 an application under Order 23 Rule 3 CPC was filed, and the matter was directed to be placed before National Lok Adalat on 10.7.2021. On 10.7.2021 a compromise decree was passed in favour of respondent No.1/plaintiff. It is submitted by counsel for the petitioner that he was not served with the notice of the suit. He never executed any Wakalaknama in favour of Shri Akhilesh Tiwari, Advocate. He never signed any application filed under Order 23 Rule 3 CPC, and he never appeared before the National Lok Adalat on 10.7.2021. By referring to the order dated 10.7.2021 passed by the National Lok Adalat, it is submitted by counsel for the petitioner that some other person had appeared by impersonating himself to be Ram Charan Tiwari and he was identified by Shri Akhilesh Tiwari, Advocate. It is further submitted that in compliance of order dated 8.8.2023 passed by a coordinate Bench of this Court, the petitioner has already filed a criminal complaint case. The statements of the witnesses are being recorded. However, it is submitted that process has not been issued so far. Similarly, it is submitted that the petitioner has also approached the Bar Council against Shri Akhilesh Tiwari, Advocate. But, it is submitted that the bar council has not issued notices to him. Thus, it is the contention of counsel for the petitioner that the manner in which

the case was conducted by the trial Court and the manner in which the forged Wakalatnama was filed by Shri Akhilesh Tiwari, Advocate, the order dated 10.7.2021, passed by the National Lok Adalat in R.C.S.A.No.8/2021 is liable to be recalled/ set aside.

3. Per Contra, the petition is vehemently opposed by counsel for the respondents. It is submitted by counsel for the respondents that the petitioner has filed this petition with an ulterior motive after delay of seven months. In fact, the petitioner has compromised with the respondents. Baseless allegations of fabricating the signature of the petitioner has been made. The onus of proving that the signature is forged and fabricated lies on the petitioner, but he failed to discharge the same. To appreciate the submissions made by counsel for the petitioner, a detailed examination and recording of evidence is required, which cannot be done in a writ petition. The allegation of fraud cannot be adjudicated by this Court in a writ petition as held by a Division Bench of this Court in the case of Satypal Anand Vs. State of M.P. and others, reported in ILR 2011 MP 2401, a judgment passed by the Supreme Court in the case of D.L.F. Housing Society Construcation (P) Ltd. Vs. Delhi Municipal Corpn. and others reported in (1976) 3 SCC 160. It is further submitted that in view of the decree passed by the National Lok Adalat, the title now vests with the respondents and the award passed by the Lok Adalat is final and binding on the parties. It is further submitted that the Andhra Pradesh High Court, in the case of Batchu Subba Lakshmi and others Vs. Sannidhi Srinivasulu and others, reported in 2009 SCC Online AP 795, has held that the award passed by the Lok Adalat cannot be

challenged in writ court and the question of title cannot be adjudicated in a writ petition, as held by the Supreme Court in the case of Swati Ferro Alloys Private Limited Vs. Orissa Industrial Infrastructure Development Corporation (IDCO) and others, reported in (2015) 4 SCC 204 and in the case of State of Rajasthan Vs. Bhawani Singh and others, reported in 1993 Supp. (1) SCC 306.

4. Heard the Learned counsel for the parties.

5. So far as the question as to whether a writ petition against the order of award passed the Lok Adalat is maintainable before the High Court or not is concerned, the said question is no more resintegra.

6. The Supreme Court in the case of State of Punjab and another Vs. Jalour Singh and others reported in (2008) 2 SCC 660 has held that if any person is aggrieved by the order passed by the Lok Adalat then the only remedy available to him is to file a writ petition under Article 226/227 of Constitution of India.

7. Thus, the contention of counsel for the respondents that the award passed by the Lok Adalat cannot be challenged by filing a writ petition under Article 226 / 227 of the Constitution of India is misconceived and is liable to be rejected and is hereby rejected.

8. The record of the trial court has also been received. From the record of the trial court, it appears that the civil suit was filed on 18.1.2021 and on the same day, notices were issued and the case was fixed on 23.2.2021. On 23.2.2021, it was observed by the trial court that the notices issued to the defendants have not been received back either served or unserved and accordingly, it was directed that on payment of fresh process fee, the notices be issued. Later on, on the very same day,

one Akhilesh Tiwari, Advocate appeared as counsel for the defendants and filed Wakalat Nama, written submissions as well as reply to the application under Order 39 Rule 1 and 2 CPC. Accordingly, the case was fixed for 27.3.2021 for consideration of application filed under Order 39 Rule 1 and 2 CPC. On 27.3.2021 an application under Order 23 Rule 3 CPC was filed, and the case was directed to be listed before National Lok Adalat. In the National Lok Adalat, the statements of witnesses were recorded and by order dated 10.7.2021 the decree was passed.

9. This Court has also gone through the record of the trial court and has found that the acknowledgement of receipt of notice was never received back by the trial court.

10. Undisputedly, the defendants No.2 and 3 were the sons of the plaintiff and the petitioner was the only contesting party. It is really surprising that on day one when the notices were not received back either served or unserved, one Shri Akhilesh Tiwari, Advocate appeared along with Wakalatnama of defendants No.1, 2 and 3 (including the petitioner) as well as also filed written statement and reply to the application under Order 39 Rule 1 and 2 CPC. Although this Court cannot say that this conduct of the defendants in filing Wakalatnam on day one is incorrect, but generally it is not the practice.

11. Be that whatever it may be.

12. Thereafter, on the very next date, i.e. on 27.3.2021 an application under Order 23 Rule 3 CPC was filed, and the matter was placed before Lok Adalat on 10.7.2021. From the original record of the trial court it is clear that the coloured photocopy of the Aadhar card of the

plaintiff as well as defendants No.2 and 3, namely Kailash Tiwari, Rakesh Tiwari and Somesh Tiwari was filed and the faces of the holder of Aadhar card were clearly visible and identifiable, but black and white photocopy of the voter identity card of Ram Charan, son of Kanchhedilal (petitioner) issued by the Election Commission of India, was filed, in which face of holder of identity card is not identifiable and is not clear.

13. It is further submitted by counsel for the petitioner that he has filed a copy of statement of the Aditya Rawat Advocate who had appeared as a counsel for the plaintiff before the National Lok Adalat. His statement has been recorded under section 202 Cr.P.C. in a criminal complaint case filed by the petitioner against the respondents and in his statement under section 202 Cr.P.C., Aditya Rawat has specifically stated that on 10.7.2021 the person who appeared as Ram Charan and whose statement was recorded was not the complainant. It was further stated that Aditya Rawat has identified the plaintiff Kailash, whereas the defendants, namely the petitioner, as well as Rakesh and Somesh were identified by Akhilesh Tiwari, Advocate.

14. Although, the complaint is still pending, but there is sufficient material available on record to suggest that the manner in which the matter was dealt with by the parties, there is every possibility that the Wakalatnama, written statement filed on behalf of the petitioner by Akhilesh Tiwari on 23.2.2021 was containing the forged signatures of the petitioner. Similarly, the application filed under Order 23 Rule 3 CPC filed on 23.7.2021 also appears to have been containing the forged signatures of the petitioner.

15. Under these circumstances, where the Voter Identity card of the petitioner which was filed before the National Lok Adalat, completely contains an unidentifiable picture of the Voter ID card holder, this Court is of considered opinion that prima facie case has been made out by the petitioner for setting aside the order / award dated 10.72021, passed by National Lok Adalat Bench No.5, Devri District Sagar in R.C.A.A.No.8/2021.

16. Accordingly, the award passed by the National Lok Adalat on 10.7.2021 in R.C.S.A.No.8/2021 is hereby set aside. The matter is remanded back to the trial Court to start the trial afresh from the stage of filing of Wakalat Nama.

17. Before parting with this order, this Court would like to direct the J.M.F.C. Deori District Sagar to decide the question of taking of cognizance as early as possible, preferably within a period of three months from today in UNCR No.10/2021, if not already done.

18. Similarly, the M.P. State Bar Council is directed to take up the complaint filed by Shri Ram Charan Tiwari against Shri Akhilesh Tiwari, Advocate on 9.10.2023 and refer the matter to the disciplinary authority if the complaint is found to be correct.

19. Let the said decision be taken within a period of one month from the date of production of certified copy of this order.

20. Office is directed to immediately send back the record of the trial Court to the Court of Civil Judge Class II, Deori, District Sagar.

21. Petition succeeds and is hereby allowed.

22. A copy of this order be sent to M.P.State Bar Council and J.M.F.C. Deori, District Sagar who is in seisin of the complaint case.

23. No order as to cost.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2024.05.30 19:26:03 +05'30'

HS