P. Naresh Kumar vs The Secretary Legal Services ...
2021 Latest Caselaw 4045 Tel

           HONOURABLE JUSTICE UJJAL BHUYAN
                           AND
       HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA

                   WRIT PETITION No.1932 of 2020

ORDER: (per Hon'ble Dr. Justice Chillakur Sumalatha)

      Challenging the validity and the legality of the award dated

27.11.2018 passed by the City Civil Court Legal Services Authority,

Hyderabad, vide LAC.No.1318 of 2018 in E.P.No.2 of 2018 in

O.S.No.108 of 2016 of the Court of XXIV Additional Chief Judge,

City Civil Court, Hyderabad, the petitioner has filed the present writ

petition. The petitioner seeking to set aside the said award, has also

prayed to declare the registered sale deed vide document No.300 of

2019 dated 24.01.2019, which is based on the said award of the Lok

Adalat, as null and void.

2.    Heard and gave due consideration to the submission of the

learned counsel for the parties.

3.    The impugned award which is passed in an Execution Petition

vide E.P.No.2 of 2018 in O.S.No.108 of 2016 is based on the

memorandum of compromise that was forwarded by the Decree-

Holder, who is respondent No.2 herein, and Judgment-Debtor Nos.5

and 6 who are respondent Nos.7 and 8 herein. The petitioner

challenged the validity of the said award on the ground that it was

obtained through fraud and collusion.

4. The version of the petitioner, as could be drawn from the

affidavit filed by him in support of the writ petition, is that his parents,

Late Ramachandraiah and Late Vishalakshmi, were the owners of the WP.No.1932 of 2020

house property bearing House No.4-3-616, 616/A, 617 and 620 having

ground + two floors located at Ramkote, Near Sarojini Devi Hall,

Hyderabad (hereinafter referred as "the suit schedule property"),

having purchased the same through a registered sale deed in the year

1968. His parents were having six children-K.Shobha Rani,

P.Vasantha, P.Naresh Kumar i.e., the petitioner herein, S.Premalatha,

Late P.Srinivas and T.Bruneshwari. As his younger brother-P.Srinivas

was causing trouble in the family, his father executed a Will on

07.6.1993 and likewise, his mother also executed a Will on 24.6.2014

in respect of the suit schedule property which was purchased in their

names. His younger brother filed a suit for partition, during the

lifetime of his father, against his father and other family members vide

O.S.No.1107 of 2000 on the file of the Court of VII Junior Civil Judge

and obtained a preliminary decree regarding the properties pertaining

to their grandfather and that, respondent Nos.7 and 8 herein being the

wife and the daughter of his deceased brother are pursuing the final

decree proceedings.

While so, his father passed away on 20.10.2013, his mother died

on 28.12.2016 and his younger brother also passed away on 15.6.2017

due to ill-health. The suit in O.S.No.108 of 2016 was dismissed

against his parents, but it was decreed against his deceased brother

though his brother was no more as on the date of decree. The dismissal

of the suit against his parents was not questioned by respondent No.2

herein. The Court granted alternative relief of refund of an amount of

Rupees Sixty lakhs against his deceased brother. Thus, the property of WP.No.1932 of 2020

his parents is no way concerned to respondent No.2 herein. It is also

contended that the petitioner is in occupation of his entire half share of

the suit schedule property as per the Will executed by his father and

that, his deceased younger brother was in occupation of the rest of the

share, but to his shock and surprise, a legal notice was received by his

tenants wherein it was mentioned that the noticees became the owners

of the entire property through the award of the Lok Adalat dated

27.11.2018 in E.P.No.2 of 2018 in O.S.No.108 of 2016. It is stated

that the suit as well as the Execution Petition (EP) are collusive and

the Secretary of the City Civil Court Legal Services Authority,

Hyderabad, who is respondent No.1 herein, fell into the trap of

respondent No.2, who played fraud and mischief and suppressed the

facts, and passed the award. The petitioner contended that the said

judgment and decree are not binding upon him and that, it is a settled

proposition of law that fraudulent orders will not survive and they can

be questioned at any point of time vide judgments of the Hon'ble

Apex Court in S.P.Chengalvaraya Naidu vs Jagannath1 and Union of

India Vs. Ramesh Gandhi2. The petitioner further contended that he is

not aggrieved by the decree and judgment passed in the said suit as

they are not binding upon him and he is not affected by the said decree

and judgment anyway, but as the award is deviating the said decree

and snatching away his rights over the property and as there is no

appeal as per the Legal Services Authorities Act, 1987, he has filed the

SCC 1994 (1) 1

(2012) 1 SCC 476 WP.No.1932 of 2020

present writ petition invoking Article 226 of the Constitution of India

for the reliefs prayed for.

5. The learned counsel for the petitioner submitted that

O.S.No.108 of 2016 which stood on the file of the Court of XXIV

Additional Chief Judge, City Civil Court, Hyderabad was filed by

respondent No.2 herein against the father, the mother and the brother

of the petitioner for specific performance of an agreement of sale

which was entered into by the brother of the petitioner under the guise

of a General Power of Attorney executed by the parents of the

petitioner though no such General Power of Attorney was executed

pertaining to the suit schedule property and the Court has rightly

negatived the relief sought for as the Court did not believe the

genuineness of the said General Power of Attorney; however the Court

decreed the suit granting the alternative relief of refund of an amount

of Rupees Sixty lakhs only against the petitioner's brother and the

Court through the said decree specifically directed defendant No.4

therein i.e., the brother of the petitioner to pay the said money and as

such, the petitioner has no grievance to the extent of the decree passed

in the said suit. The learned counsel further submitted that for

execution of the said decree, respondent No.2 herein filed an

Execution Petition which is E.P.No.2 of 2018 and during the pendency

of the said Execution Petition, the legal representatives of the

petitioner's deceased brother i.e., respondent Nos.7 and 8 herein, who

are Judgment-Debtor Nos.5 and 6 in the E.P., colluded with the

Decree-Holder (respondent No.2 herein) and entered into a WP.No.1932 of 2020

memorandum of compromise and requested the Bench of the Lok

Adalat to record compromise and the Bench of the Lok Adalat without

looking into the legality of the memorandum of compromise, blindly

passed the award in terms of the said memorandum. It is further

submitted that award is passed directing Judgment-Debtor Nos.5 and 6

i.e., respondent Nos.7 and 8 herein to execute a sale deed in favour of

the Decree-Holder in respect of suit schedule property in lieu of

payment of decretal amount and that, indeed, the suit schedule

property is neither the exclusive property of the petitioner's deceased

brother nor his legal representatives i.e., respondent Nos.7 and 8

herein and therefore, the said property ought not to have been involved

in the said E.P. and an award with a direction to execute sale deed

ought not to have been passed by the Legal Services Authority and

thus, the award has jeopardised the rights of the petitioner herein who

is a shareholder. The learned counsel for the petitioner also contended

that there is no other remedy for the petitioner except to file a writ

petition challenging the award and therefore, the petitioner has

approached this Court for redressal.

6. Seriously assailing with the said submission, the learned

counsel for respondent Nos.2 and 9 contended that the writ petitioner

has no locus standi to challenge the award passed by the Legal

Services Authority, as he is neither a party to the suit nor to the

Execution Petition and therefore, the writ petition is liable to be

dismissed without any further probe. The learned counsel further

contended that when the legal representatives of the deceased brother WP.No.1932 of 2020

of the petitioner who were unable to pay the decretal amount offered

to register the suit schedule property, which was acquired by the

brother of the petitioner through a registered General Power of

Attorney and basing on a joint Will, respondent No.2 agreed for the

same and thus, there is no illegality in the impugned award of the Lok

Adalat. The learned counsel further submitted that all the four

daughters of the deceased parents of the petitioner executed deed of

ratification and thus, respondent No.2 has got absolute right over the

suit schedule property and even otherwise, respondent No.2 perfected

his title in respect of five shares out of six shares left by the parents of

the petitioner and the petitioner could only get one share and in these

circumstances, the writ petition is not maintainable.

7. Thus, the main attack of the respondents on record is on the

maintainability of the writ petition by the petitioner who is a third

party to the Lok Adalat award. No doubt, the parties to the suit in

O.S.No.108 of 2016 are respondent No.2 herein (plaintiff), the parents

of the petitioner and the brother of the petitioner by name P.Srinivas,

who is the husband and the father of respondent Nos.7 and 8 herein

respectively. Thus, the revision petitioner is not a party to the said suit.

Likewise, in the execution proceedings, which are based on the said

suit, vide E.P.No.2 of 2018, respondent No.2 herein is the decree

holder and respondent Nos.7 and 8 herein alone are shown as

surviving Judgment-Debtors being the legal heirs of the deceased

P.Srinivas, who is defendant No.4 to the said suit. Thus, undoubtedly, WP.No.1932 of 2020

it can be held that the petitioner herein is a third party to the award

passed by the Legal Services Authority.

8. As rightly contended by the learned counsel for the petitioner,

in the subject matter, the petitioner has got an element of interest

which cannot be denied. There is no material on record to show that

the entire suit schedule property devolved upon the deceased

P.Srinivas and that respondent Nos.7 and 8 inherited the said property

as his legal heirs. If that be the case, there may not be any requirement

on the part of respondent No.2 to obtain ratification deed from the

sisters of the petitioner and the deceased P.Srinivas. Admittedly,

except by way of filing a writ petition, there is no other way of

challenging the award of the Lok Adalat.

9. In the light of these factual aspects, this Court is of the view that

the writ petition filed by the petitioner, though a third party, is

maintainable. The above view of this Court is based on the decision of

a Division Bench of this Court in Batchu Subba Lakshmi and others

Vs. Sannidhi Srinivasulu and others3, wherein at paras 7 and 8 this

Court observed as follows:-

"7. Under Section 21(1) of the Act an award of Lok Adalat shall be deemed to be decree of a Civil Court and under Section 21(2) of the Act every award made by Lok Adalat shall be final and binding on all the parties. No appeal shall lie to any Court against the award, and therefore, ordinarily a writ petition challenging award is also barred. But there may be situations where there being no compromise or settlement as envisaged under Section 20(3) and (5) of the Act, Lok Adalat may have passed an award. In other words, what would be the

2010(1) ALD 277 (DB) WP.No.1932 of 2020

position if Lok Adalat passes an order even without parties arriving at a compromise or settlement among themselves. In such a situation, it cannot be said that there is an award of Lok Adalat, which can be enforced by a Civil Court as a decree.

There may be yet another situation where in the absence of the parties to the lis or in the absence of one of the parties to the lis, award of Lok Adalat may have been obtained by impersonation, misrepresentation or fraud. Even in such cases, there being no valid award, Section 21(1) of the Act is not attracted. Having regard to the language of Article 226(1) of Constitution of India, which empowers the High Court of a State to issue writs, orders or directions against any public authority or against authorities discharging public functions, the High Court can entertain a writ petition against an award of Lok Adalat. The phrase "for any other purpose" appearing in Article 226(1) of Constitution, in our opinion, is broad enough to take within its purview the situations where a statute contains "no Certiorari clause". It is well settled that "no Certiorari clause" in a statute does not bar the Constitutional Court from entertaining a petition for redressal of grievance and issue an appropriate order ex debito justitiae. Therefore, in either of the situations or any such other situations, a writ petition would lie. Who can file writ petition challenging the Lok Adalat Award.

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. Under Section 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 WP.No.1932 of 2020

institute a suit for 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."

10. Though the petitioner has attacked the decree of the Court of

XXIV Additional Chief Judge, City Civil Court, Hyderabad in

O.S.No.108 of 2016 on the ground that himself and his sisters were

not added as the legal representatives of their deceased parents, who

are defendant Nos.1 and 2 to the said suit, the said contention holds no

water as the petitioner himself in the writ petition, more particularly at

para 11 has stated that he is not aggrieved by the decree and judgment

in the said suit. Furthermore, the said contention cannot be entertained,

as the said suit stood dismissed against the parents of the petitioner,

who are defendant Nos.1 and 2 to the said suit.

WP.No.1932 of 2020

11. As earlier observed, the suit is decreed against the deceased

P.Srinivas making him liable to pay Rupees Sixty lakhs with interest

to the plaintiff i.e., respondent No.2. herein. However, when the

matter was put for execution, an award was passed by the Legal

Services Authority paving way for execution of sale deed in favour of

the Decree-Holder (respondent No.2 herein) in respect of the suit

schedule property. The operative portion of the award is as follows:-

"D/Hr, JDrs 5 & 6 and their respective counsels are present before Lok Adalat. Both parties have filed memorandum of compromise with a request to record compromise. We have read over the contents of memorandum of compromise to both parties and both of them admitted the contents as true and correct.

Hence, Award is passed as follows:

(a) The Decree-Holder already paid an amount of Rs.5,00,000/- to the Judgment-Debtors on 02.11.2018.

(b) After receipt of Rs.5,00,000/- covered by clause (a) supra, the Judgment Debtors i.e., 5 and 6 shall execute a sale deed in favour of the Decree-Holder in respect of the property covered by the schedule appended hereunder, in lieu of payment of decretal amount.

(c) If the Judgment Debtors 5 and 6 fail to execute sale deed covered by clause (b) supra, even after receipt of amount of Rs.5,00,000/-, the Decree-Holder is at liberty to execute the decree and obtain sale deed through process of law.

(d) The Judgment Debtors 5 and 6 agreed to cooperate with the Decree-Holder, for mutation of the property, in Government records, in the name of the Decree- Holder.

WP.No.1932 of 2020

(e) That the claim between the Decree-Holder and the Judgment-Debtors 5 & 6 are hereby to be settled and there are no claims against each other."

12. It appears that the memorandum of compromise was acted upon

by the Bench of the Lok Adalat without looking into the fact whether

Judgment-Debtor Nos.5 and 6 have got exclusive right and title over

the suit schedule property to execute a sale deed in favour of the

Decree-Holder (respondent No.2 herein).

13. As rightly contended by the learned counsel for the petitioner,

fraud vitiates everything. It is not the motto of the Legal Services

Authority to make one party gain at the cost of the other. It is an

established principle of law that fraud vitiates all judicial acts whether

in rem or personam. Though it is contended that the other legal heirs

of the deceased parents of the petitioner, i.e., the sisters of the

petitioner, executed a ratification deed in respect of the suit schedule

property, it is not the case that the petitioner has relinquished his share

in the suit schedule property. Therefore, when the petitioner has got

subsisting title and interest over the suit schedule property, it is unfair

on the part of the parties to the memorandum of compromise to agree

for transfer of title in respect of the suit schedule property without

knowledge and consent of the petitioner herein. It appears that without

observing the right and title of Judgment-Debtor Nos.5 and 6, who are

respondent Nos.7 and 8 herein, over the suit schedule property to

execute the sale deed in respect thereof, basing on the terms of

compromise, the Bench of the City Civil Court Legal Services WP.No.1932 of 2020

Authority, Hyderabad has passed the impugned award. Thus, the said

award is unsustainable in the eye of law. Therefore, we are of the view

that the said award is liable to be set aside.

14. Though the petitioner has sought for a consequential relief to

declare the registered sale deed vide document No.300/2019 dated

24.01.2019 of the Joint Sub-Registrar-II, Hyderabad, which is based

on the Lok Adalat award, as null and void, the said relief cannot be

granted as the petitioner has got efficacious remedy of perfecting his

title by filing a suit for declaration of his right and title over the said

property. Also, the said sale deed cannot be declared as null and void

as the petitioner is not the exclusive owner of the property in question

and as per his own version, his brother i.e., the deceased P.Srinivas

and his other sisters have also got right over the said property and

more so their right was transferred to respondent No.2 herein through

the said sale deed and the subsequent ratification instrument.

Therefore, the petitioner has to work out his remedies by following

due procedure as required under civil law.

15. Thus, the writ petition is partly allowed nullifying the award

dated 27.11.2018 passed by the City Civil Court Legal Services

Authority, Hyderabad in L.A.C.No.1318 of 2018 which arose from

E.P.No.2 of 2018 in O.S.No.108 of 2016 which stood pending on the

file of the Court of XXIV Additional Chief Judge, City Civil Court,

Hyderabad.

16. In the light of setting aside of the said award, the proceedings in

E.P.No.2 of 2018 in O.S.No.108 of 2016 which stood pending on the WP.No.1932 of 2020

file of the Court of XXIV Additional Chief Judge, City Civil Court,

Hyderabad now stands revived and shall continue.

17. Pending Miscellaneous Petitions, if any, shall stand closed. No

costs.

_____________________ JUSTICE UJJAL BHUYAN

_________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA 01.12.2021 dr