IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 13162 of 2009(O) -------------------------- CMA.23/2009 of II ADDL.DISTRICT COURT,ERNAKULAM .................... PETITIONER(S): --------------- SUJANANANDHINI DHEEVARA SABHA, REG.NO.ER 92/94, AKDS NO.166, JANATHA ROAD, VYTTILA, COCHIN - 19, REPRESENTED BY ITS SECRETARY K.M.SABU. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.SAJU WAHAB SRI.P.PRIJITH RESPONDENT(S): --------------- 1. THE CORPORATION OF KOCHI, REPRESENTED BY ITS SECRETARY, COCHIN-11. 2. MINI ANTONY, IAS, (FATHER'S NAME AND AGE NOT KNOWN), SECRETARY, CORPORATION OF COCHIN, COCHIN - 11. 3. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, CIVIL STAITON, KAKKANADU, ERNAKULAM. 4. M/S. ADELIE BUILDERS DEVELOPERS PVT LTD, P.R.BHAVAN, PALLIYIL LANE, FORESHORE ROAD, ERNAKULAM, KOCHI - 682 016. ADV. SRI.E.K.NANDAKUMAR FOR R4 SRI.K.JOHN MATHAI FOR R4 SRI.P.BENNY THOMAS FOR R4 SRI.A.K.JAYASANKAR NAMBIAR FOR R4 SRI.ANIL D. NAIR FOR R4 SRI.K.ANAND, SC FOR R1 AND SRI.E.K.NANDAKUMAR, SC. GOVT.PLEADER SRI.P.K.RAVISANKAR SRI.MADHU FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.13162/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.926 OF 2008 OF MUNSIFF'S COURT, ERNAKULAM. EXT.P2: COPY OF COMMISSION REPORT DATED 26.8.2008 FILED BY ADVOCATE COMMISSIONER. EXT.P3: COPY OF COMMISSION REPORT DATED 19.9.2008 FILED BY ADVOCATE COMMISSIONER. EXT.P4: COPY OF COMMISSION REPORT DATED 29.10.2008 FIELD BY ADVOCATE COMMISSIONER. EXT.P5: COPY OF OBJECTION TO I.A.NO.7491 OF 2008 FILED BY RESPONDENTS 1 AND 2. EXT.P6: COPY OF ORDER IN I.A.NO.7491 OF 2008 DATED 27.1.2009 EXT.P7: COPY OF COMMISSION REPORT DATED 9.2.2009 FILED BY ADVOCATE COMMISSIONER. EXT.P8: COPY OF ORDER IN C.M.A.NO.23/09 DATED 7.4.2009 OF DISTRICT COURT, ERNAKULAM. RESPONDENTS EXHIBITS: EXT.R4 (A): COPY OF THE 4TH REPORT DATED 9.12.2008 FILED BY THE ADVOCATE COMMISSIONER PURSUANT TO THE INSPECTION CONDUCTED AS DIRECTED BY THE HONOURABLE MUNSIFF'S COURT. EXT.R4 (B): COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL DATED 26.2.2009 IN CMA.23/2009 IN THE FILES OF DISTRICT COURT, ERNAKULAM. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.13162 OF 2009 (O) ----------------------------------- Dated this the 21st day of December, 2009 J U D G M E N T Previously, a judgment had been rendered disposing the writ petition on the basis of the settlement arrived by the parties in mediation and subject to such modifications on the basis of the representations made by the counsel on both sides. Settlement provided for the appointment of the 'mediator' as the authority to decide any dispute between the parties in implementing the compromise. In lieu of the mediator involved in the settlement as the authority to resolve the dispute, if any, cropping up between the parties in the implementation of the terms of the compromise arrived, as agreed to by the parties, a senior counsel of the bar was named as the authority taking note that it is improper for the mediator to have the role of an adjudicating authority before or after a settlement is reached by the parties. Previous judgment was recalled as parties have retracted from the terms of settlement so agreed to on the basis of which a WPC.13162/09 2 decree was directed to be passed in the suit by the court below. 2. I heard the counsel on both sides. Counsel on both sides submit that though there was a consensus earlier on the basis of which judgment was rendered in appointing an authority, a senior counsel of the bar, for supervising the work to be performed in terms of the settlement as the implementation of the work depend on several factors and the intervention of the authority is required only in the event of any dispute in honouring the terms of the settlement the parties desired to keep ineffective the appointment of an authority for the time being. Though it was represented earlier that the authority suggested and named would be appointed, the counsel on both sides requested that the appointment of authority need be considered only in the event of any dispute between the parties. A joint statement has been filed by both sides making such request as indicated above. The counsel on both sides submit that the endorsement made in the joint statement as if it was done as directed by the High Court is a mistake and it is deeply regretted. That submission is recorded. In fact no such WPC.13162/09 3 direction was given by this Court to file a joint statement, but, only to explain why after passing of a judgment on the basis of the consensus arrived at by the parties the terms as agreed to and represented have not been implemented so far. In view of the change of circumstances and more particularly change of perception to the issues by the parties, it is open to the parties to seek for appropriate modification in the settlement before the court below, which had been directed under the judgment rendered earlier to pass a decree in terms of the settlement. 3. I make it clear that the directions given earlier will not stand in the way of the parties seeking appropriate directions as regards the appointment of an authority and payment of remuneration to such authority etc. In view of the stand now adopted by the parties that no authority is required unless any dispute in the implementation of the settlement arises for consideration, it is open to the parties not only to seek such modification in the settlement but also seek the manner in which the decree require to be passed with such modification in the suit. The court below shall consider the request for modification to the extent possible and permissible under law and appropriate orders can be passed in that WPC.13162/09 4 regard. Forward the original settlement retaining a copy to the court below. Writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp