IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(C).No. 15463 of 2009(O) --------------------------------------- [OS.NO.42/2005 OF SUB COURT, THIRUVALLA] .................... PETITIONER: ------------------- VARGHESE C.PHILIPKUTTY, CHALAKUZHY MALIACKAL VEEDU, AMALLOOR MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, NOW RESIDING AT TMC 6/297/3, SCS JUNCTION, T.K.ROAD, THIRUVALLA. BY ADVS. MR.THOMAS ABRAHAM, MR.DIPU.R, SMT.MERCIAMMA MATHEW, MR.K.S.HARIDAS, MR.V.RENJITH KUMAR. RESPONDENTS: ------------------------ 1. TALUK LEGAL SERVICE COMMITTEE, THIRUVALLA AND MALLAPPALLY, REPRESENTED BY IT'S CHAIRMAN. 2. C.VARGHESE MATHAI, CHALAKUZHY MALIACKAL VEEDU, POLACHIRACKAL, KAVIYOOR VILLAGE. 3. ANNAMMA JACOB, NADUMPLAICKAL VEEDU, MANKUSHIPADY, MALLAPPALLY VILLAGE. 4. SUSAN SAMUEL, PALLICKAL VEEDU, OLAKETTY AMBALAM, MAVELIKKARA VILLAGE, PRESENT ADDRESS SUSAN SAMUEL, 27, KIMBRAK, CRESEENT MARKHAM, ONTRARIO, L 3R8P, CANADA. W.P.(C). NO.15463/2009-O: 5. ELISABETH KURUVILA, NLAVIMANGALATHU MODAYIL, MANKUSHIPADY, MALLAPPALLY VILLAGE, PRESENT ADDRESS ELIZABETH KURUVILA, S/O. SUSAN SAMUEL, 27, KIMBRAK, CRESEENT MARKHAM, ONTARIO, L 3R8P8, CANADA. 6. TRITTY MARIAN, VATTAPARAMBU VEEDU, KUTTUKARA UNIT, THIRUVALLA VILLAGE, PRESENT ADDRESS: TRITTY MARIAM, C/O. RENNY JOHN, 527 TIPON CRT, MISSISSANGA, ONTARIO L5R 3M6, CANADA. 7. GENERAL MANAGER, STATE BANK OF INDIA, THIRUVALLA MAIN BRANCH. 8. SHEELA PAUL, AGED 51, W/O. VARGHESE CHALAKUZHY PAUL, PUNNACKADU VEEDU, THYMARAVUMKARA, WEST OTHERE P.O. 9. ANCY PAUL, AGED 25 YEARS, D/O. VARGHESE CHALAKKUZHY PAUL, OF -DO- -DO- 10. TOM C.PAUL, AGED 21 YEARS, S/O. VARGHESE CHALAKKUZHY PAUL, OF -DO- -DO- *ADDL. R.11 & R.12 IMPLEADED: 11. KERALA STATE LEGAL SERVICE AUTHORITY, REP. BY ITS SECRETARY, NIYAMA SAHAYA BHAVAN, HIGH COURT PREMISES, KOCHI. 12. DISTRICT LEGAL SERVICE AUTHORITY, PATHANAMTHITTA, REP. BY IT'S SECRETARY, DISTRICT COURT PREMISES, PATHANAMTHITTA. *IMPLEADED AS ADDITIONAL RESPONDENTS 11 AND 12 AS PER ORDER DT. 12/06/09 IN W.P.(C).NO.15463/09. R1, R11 & R12 BY GOVT. PLEADER MR. P.K. RAVIKRISHNAN, R2 TO R6 & R8 TO R10 BY ADV. MR.P.M.POULOSE, R7 BY ADV. MR.R.S.KALKURA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON 26/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.15463/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 18/03/2008 SENT BY THE R.1. EXT.P.2: COPY OF THE LOK ADALATH PROCEEDINGS OF CASE NO.42/2005 DTD. 29/03/2008. EXT.P.3: COPY OF THE APPLICATION DTD. 14/06/2008 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.4: COPY OF THE APPLICATION IN O.S. NO.42/2005 DTD. 21/07/2008. EXT.P.4.A: COPY OF THE APPLICATION IN A.S. NO. 36/2004 DTD. 21/07/2008. EXT.P.5: COPY OF THE APPLICATION DTD. 08/09/2008 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.6: COPY OF THE ORDER DTD. 20/09/2008 IN O.S. NO. 42/2005, PASSED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 15463 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010. JUDGMENT This is a petition filed under Section 227 of the Constitution of India calling in question the legality of Ext.P6 order and the dismissal of O.S.42 of 2005 based on that order. 2. The petitioner as plaintiff instituted O.S. 42 of 2005 before the Sub Court, Thiruvalla. The suit was one for partition. Respondents 2 to 10 herein were the defendants in the suit. There were two other cases pending, namely A.S. 36 of 2004 and R.C.P. 1 of 2000 against the same respondents. It so happened that O.S. 42 of 2005 and other matters were referred to the Lok Adalat. In the Lok Adalat held on 29.3.2008 at Sub Court, Thiruvalla the matter was taken up. Notice was WPC.15463/2009. 2 received by the petitioner regarding the posting of the case. Copy of the notice is produced as Ext.P1. In the Adalat the following arrangement was arrived at: “Parties are present, agreed to settle the matters including matters and cases pending before the Munsiff's court, Thiruvalla after measuring the properties on or before the next Lok Adalath. The connected cases are A.S.35/2004, A.S. 36/2004.” Copy of the same is produced as Ext.P2. The petitioner would say that a reading of Ext.P2 would show that there was no settlement and there was only a consensus to measure the property. However to the surprise of the petitioner, the Sub Court, treating Ext.P2 settlement as an award, decreed the suit in terms of the compromise, namely Ext.P2. 3. No measurement as contemplated under Ext.P2 took place. That aspect was sought to be brought to the notice of the Adalat and appropriate orders were sought by filing an application dated 14.6.2008, which is produced as WPC.15463/2009. 3 Ext.P3. Later the petitioner came to know that O.S. 42 of 2005 and other connected cases were dismissed on the basis of the so called award said to have been passed by the Lok Adalat. True copy of the application filed in O.S. 42 of 2005 is produced as Ext.P4. Copy application of A.S. is produced as Ext.P4(a). 4. On realising the true fact that there was no executable award, the petitioner filed the application before the first respondent to clarify the position and other reliefs were also sought for. The application filed is produced as Ext.P5. By Ext.P6 order the application was rejected. The result is that no award had been passed by the Lok Adalat in the matter and the suit stands dismissed on the basis of a non-existing award. The petitioner therefore assails the order of the Adalat under Ext.P6 and also seek restoration of O.S. 42 of 2005 and other connected matters. 5. Even though notice was served on the respondents, no counter affidavit has been filed by the respondents. Averments in the petition remain WPC.15463/2009. 4 uncontroverted. As rightly pointed out by the learned counsel for the petitioner, Ext.P2 only says that the authorities have agreed to settle the matter after measuring the property. The petitioners would say that due to various reasons the measuring could not be carried out. So the agreement reached was not fulfilled. 6. There can be no dispute regarding the fact that Ext.P2 as such does not constitute an executable award and no decree could have been passed on that basis. One fails to understand how the suit and other connected matters could have been disposed of on the basis of Ext.P2. The petitioner was therefore left with no other remedy but to approach Lok Adalat again, which he did as per Ext.P5 application. On his application, Ext.P6 order was passed. As per Ext.P6 the first respondent held that the Adalat has no authority to set aside an award and the petition was dismissed. The result was that petitioner was neither here nor there. WPC.15463/2009. 5 7. As Ext.P2 cannot constitute an executable award, the proceedings adopted by the Sub Court with regard to the suit and other connected matters does not appear to be correct. Those orders can have no legal sanction. All that happened is that the parties agreed to measure the property and then to settle their differences. It is only an understanding between the parties to measure the property. There is no direction or any other order requiring any person to do any particular act or to refrain from doing any act. In short, there is no executable decree at all. Ext.P2 cannot be said to be a settlement or compromise. 8. The petitioner is well justified in his complaint that Sub Curt could not have disposed of the suit on the basis of Ext.P2. In the result, this petition is allowed and Exts.P2 and P6 are set aside and the petitioner is at liberty to approach the Sub Court to have O.S. 42 of 2005 and other matters dismissed on the ground of settlement in Adalat WPC.15463/2009. 6 restored by filing proper application. If proper applications are filed before the Sub Court, the Court shall restore the matters disposed off on he basis of settlement in Adalat to file and dispose them in accordance with law. P. BHAVADASAN, JUDGE sb.