CIVIL WRIT JURISDICTION CASE No.14426 OF 2009 ------ In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- 1.MEENA CHOUDHARY W/O LATE SHIVA CHOUDHARY R/O MOH-KOTWALI CHOWK(UMA CINEMA),P.S.TOWN,DISTT.DARBHANGA FOR HERSELF AND ON BEHALF OF HER MINOR SON MANISH CHOUDHARY UNDER GUARDIANSHIP OF MEENA CHOUDHARY 2.MANISH CHOUDHARY S/O LATE SHIVA CHOUDHARY R/O KOTWALI CHOWK(UMA CINEMA),P.S.TOWN,DISTT.DARBHANGA UNDER GUARDIANSHIP OF MOTHER MEENA CHOUDHARY ----- PETITIONERS Versus 1.DR.DILIP CHOUDHARY SON OF LATE UMESH CHOUDHARY RESIDENT OF MOHALLA LALBAGH,P.S.TOWN,DISTRICT DARBHANGA 2.JYOTISH CHANDRA CHOUDHARY SON OF LATE RAMESHWAR CHOUDHARY RESIDENT OF MOHALL CHAUDHARY COLONY,SAHEBGANJ, DISTRICT SAHEBGANJ(JHARKHAND) 3.HEMANT KUMAR CHOUDHARY 4.SHISIR KUMAR CHOUDHARY BOTH SONS OF LATE DINESH CHOUDHARY RESIDENT OF SHANKAR TALKIES,GODDA,P.S.GODDA, DISTRICT GODDA(JHARKHAND) 5.ANIL KUMAR CHOUDHARY SON OF LATE SATISH CHOUDHARY RESIDENT OF MOHALLA CHOUDHARY COLONY, SAHEBGANJ, DISTRICT SAHEBGANJ(JHARKHAND) 6.BHARAT CHANDRA CHOUDHARY SON OF LATE RAMESHWAR CHAUDHARY RESIDENT OF MOHALLA GORAKHNATH LANE, BORING ROAD, DISTRICT PATNA 7.SHANKAR CHOUDHARY 8.KINKAR CHOUDHARY 9.MANOJ CHOUDHARY ALL SONS OF LATE BHOLA CHOUDHARY RESIDENT OF MOHALLA CHOUDHARY COLONY, SAHEBGANJ DISTRICT (JHARKHAND) 10.THE STATE OF BIHAR ------- RESPONDENTS ----- FOR THE PETITIONERS : MR. CHITRANJAN SINHA,SR.ADVOCATE MRS.NAMITA MISHRA,ADVOCATE FOR RESPONDENT NO.1 : M/S.ABHAY KUMAR SINGH,SR.ADVOCATE KALIKANT JHA, ABHAY KUMAR THAKUR, MANISH JHA, ADVOCATES FOR RESPONDENT NOS.3 & 4 : MR. AMRESH KUMAR SINHA,ADVOCATE FOR THE STATE : MR. LALIT KISHORE,AAG III ------ P R E S E N T THE HON'BLE ACTING CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ------ Shiva Kirti Singh,ACJ & S.K.Sharma,J. Heard learned counsel for the parties. We have tried on many occasions and on several dates to persuade the parties to 2 come to an amicable settlement or at least agree that the matter may again be sent to Lok Adalat for fresh decision, but unfortunately our efforts could not succeed. Petitioner no.1 Meena Choudhary is mother of petitioner no.2 Manish Choudhary. She has claimed that petitioner no.2 was minor at the relevant time and by fraud and without obtaining his signature on vakalatnama and other documents, it was wrongly represented by respondents that petitioner no.2 has also agreed to settlement of dispute before Lok Adalat and on such fraud, Lok Adalat passed an order of settlement which according to the petitioners should be declared as not binding upon them. We had directed for appearance of petitioner no.2 and in fact we had examined him in court on limited issues. He was not very specific that he was a minor at the relevant date but he stated that his signature was obtained on some blank papers. Considering the nature of dispute, we are of the view that writ proceeding is not 3 appropriate for its resolution. The next issue is what should be remedy or forum for the petitioners where they can seek redressal of their aforesaid grievances. Learned senior counsel for the petitioners submitted that the matter should be referred back to Lok Adalat at Darbhanga and Lok Adalat should be directed to decide the aforesaid grievance relating to alleged fraud and so far as the grievance raised on behalf of petitioner no.1 that she was not a party to the proceeding and in her absence, no valid settlement could have been arrived at so as to find her, be decided by this court as an issue of law. We have examined the provisions of Legal Services Authorities Act,1987 and particularly those in Section 22 of the said Act. From the judgment of the apex court in the case of State of Punjab and another Vrs.Jalour Singh and others reported in (2008) 2 Supreme Court Cases 660 it is clear that in such situation, the writ petition may be maintainable but it will 4 not be appropriate for the Lok Adalat to decide such dispute because determination of a dispute by Lok Adalat is on the basis of consent of the parties. Even from Section 22 it is clear that the Lok Adalat can take evidence for certain purposes only on affidavit. Such mode of taking evidence would limit the power of the Lok Adalat and in absence of oral evidence including cross- examination, it cannot be possible to decide the contentuous issue as one noticed above. On the other hand, learned senior counsel for the respondents has placed reliance upon a Division Bench Judgment of Andhra Pradesh in the case of Smt.Anita Vrs.R.Rambilas reported in AIR 2003 Andhra pradesh 32 and has submitted that after noticing judgments of various courts including this Court, it has been held in that case that in matters involving fraud, a party cannot be remediless and can always approach Civil Court for appropriate declaration. In that judgment it has been laid down that if fraud has been played upon 5 the court, in that event the court can also look into the matter in exercise of inherent powers under Section 151 of the Code of Civil Procedure. As discussed and held earlier, powers of Lok Adalat are not co-extensive with that of civil courts who have full power to take evidence including oral evidence and also to exercise necessary powers under Section 151 of the Code of Civil Procedure. In such situation, in our view, nothing in the Code of Civil Procedure or other law can render the petitioners remediless and following the law noticed above in the case of Smt.Anita (supra), we hold that the petitioners will be entitled to invoke plenary jurisdiction of civil court to claim necessary relief on the ground of fraud or even on the grounds available to petitioner no.1. As a proposition of law it is well established that a person who was not a party to the proceeding, will not be bound by any order passed therein unless he or she was impleaded through a representative like 6 Karta or an authorized agent who may in appropriate situations represent others. With these observations, this writ petition is disposed of. It is made clear that we have not expressed our views with regard to merits of the case and this order will not affect either of the parties on merits. It goes without saying that the civil court, if approached, will examine all the matters and issues on its own merits including issue of granting any interim order or relief to the petitioners but only in accordance with law. (Shiva Kirti Singh, ACJ.) ( Shyam Kishore Sharma, J.) Patna High Court,Patna The 6th November,2009 Tahir/-(NAFR)