IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 28727 of 2007(T) -------------------------- AGAINST THE ORDER IN IA 1675/07 IN OS.189/2007 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): -------------------------- S.ANITHAKUMARI,W/O. LATE SASIDHARAN NAIR, AGED 38 YEARS, PROPRIETOR, MAYURA MEDICAL STORE, CHIRAYINKEEZH, RESIDING AT SARADHA VILASAM, MANGATTUMOOLA, EDAICODE, ATTINGAL. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): ---------------------------- 1. SUKUMAR,S/O. BALAKRISHNAN NAIR, SREE MANDIRAM, NEAR SREEKANTA VILASAM SCHOOL, KADINAMKULAM VILLAGE,THIRUVANANTHAPURAM. 2. SURESH KUMAR,S/O.KESAVA PILLAI, KESAVA VILASAM,MANGATTUMOOLA, EDAICODE, ATTINGAL , THIRUVANANTHAPURAM. 3. KESAVA PILLAI,KESAVA VILASAM, MANGATTUMOOLA, EDAICODE, ATTINGAL , THIRUVANANTHAPURAM. R2 & R3 BY ADV. SRI.M.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28727/2007 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. OF 2007 ON THE FILE OF THE DISTRICT COURT (VACATION COURT), TRIVANDRUM. P2: COPY OF THE I.A.NO.1466/2007 IN O.S.OF 2007 ON THE FILE OF THE DISTRICT COURT (VACATION COURT), TRIVANDRUM. P3: COPY OF THE OBJECTION IN I.A.NO.1466/2007 IN O.S. OF 2007 ON THE FILE OF THE DISTRICT COURT (VACATION COURT), TRIVANDRUM. P4: COPY OF THE AGREEMENT DTD. 6/01/2003 EXECUTED BETWEEN SURESHKUMAR AND ANITHAKUMARI. P5: COPY OF THE ORDER DTD. 22/05/2007 IN I.A.NO.1466/2007 IN O.S.OF 2007 ON THE FILE OF THE DISTRICT COURT (VACATION COURT), TRIVANDRUM. P6: COPY OF THE I.A.1361/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P7: COPY OF THE ORDER DTD. 30/07/2007 IN I.A.13671/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P8: COPY OF THE OBJECTION IN I.A.1361/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P9: COPY OF THE ORDER DTD. 18/08/2007 IN I.A.1361/2007 AND IA.1524/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P10: COPY OF THE I.A.1675/2007 IN O.SA.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P11: COPY OF THE OBJECTION I.A.1675/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. P12: COPY OF THE REVIEW PETITION IN I.A.NO.1696/2007 IN I.A.1361/07 IN O.S.NO.89/2007 OF THE MUNSIFF COURT, ATTINGAL. P13: COPY OF THE ORDER DTD. 19/09/2007 IN I.A.1675/2007 IN O.S.NO.189/2007 OF THE MUNSIFF COURT, ATTINGAL. Kss ..2/- ..2.... WPC.NO.28727/2007 T RESPONDENT'S ANNEXURES: ANNEXURE A1: COPY OF THE AFFIDAVIT DTD. 30/03/2010 SWORN BY PETITIONER. ANNEXURE A2: COPY OF THE AFFIDAVIT DTD. 30/03/2010 SWORN BY ARUNKUMAR, S/O.SASIDHARAN NAIR. ANNEXURE A3: COPY OF THE AFFIDAVIT DTD. 30/03/2010 SWORN BY UNNIKRISHNAN NAIR, S/O. SASIDHARAN NAIR. ANNEXURE A: AFFIDAVIT OF THE 2ND RESPONDENT. ANNEXURE B: AFFIDAVIT OF THE 3RD RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.28727 of 2007 --------------------------------------- Dated this 28th day of July, 2010 JUDGMENT Plaintiff in O.S.No.189 of 2007 of the court of learned Munsiff, Attingal is the petitioner before me. She filed the suit in the vacation court, Thiruvananthapuram (before learned District Judge) seeking a decree for prohibitory injunction to restrain respondent Nos.1 to3/defendant Nos.1 to 3 evicting her from the suit property forcibly and to restrain defendant Nos. 2 and 3 from interfering with the business (medical shop) which she is allegedly running in the suit property. Along with the suit she filed Ext.P2, application (I.A.No.1466 of 2007) for an order of temporary injunction. On that application learned District Judge passed an interim order restraining respondent Nos.1 to 3 from evicting petitioner forcibly from the suit property or, interfering with her enjoyment of the said property. Respondents filed Ext.P3, objection to Ext.P2, application. Learned District Judge (vacation court) passed Ext.P5, order on 22-05-2007 on Ext.P2, application (I.A.No.1466 of 2007) modifying interim order referred to above to the extent that respondent No.2 was permitted to participate in the business carried on in the suit W.P.C.No.28727 of 2007 : 2 : property in view of Ext.B1, agreement dated 06-01-2003. The case was transmitted to the regular court (court of learned Munsiff, Attingal). There, it was numbered as O.S.No.189 of 2007. Respondent Nos.2 and 3 filed Ext.P6, application alleging that on the day Ext.P5, order was passed (by the vacation court) petitioner locked the building in the suit property with another lock and key and seeking a direction to the petitioner to produce the new key along with accounts of the business from 22-05-2007 onwards before the court and requesting the court to hand over the same to respondent Nos.2 and 3. There was also a prayer in Ext.P6, application to prosecute petitioner for alleged contempt of court by not complying with Ext.P5, order. Learned Munsiff allowed that application vide Ext.P7, order dated 30-07-2007 to the extent that petitioner and respondent No.1 were directed to produce the new key in court. Petitioner was directed to produce accounts as prayed for. In the meantime petitioner challenged Ext.P5, order in C.M.A.No.7 of 2005 before learned Sub Judge, Attingal (I am told that the C.M appeal is pending). Petitioner filed I.A.No.1529 of 2007 to review Ext.P7, order claiming that the order was passed without hearing her objection. In the meantime she preferred Ext.P8, objection to Ext.P6, application. Learned Munsiff allowed I.A.No.1529 of 2007, he considered the W.P.C.No.28727 of 2007 : 3 : objection and passed Ext.P9, order on I.A.Nos.1361 of 2007 and 1524 of 2007 as per which petitioner was directed to surrender the key and produce accounts for the period from 22-05-2007 onwards. Petitioner filed Ext.P12, application for review of Ext.P9, common order but that application was dismissed by Ext.P13, order. In Ext.P13, order learned Munsiff again issued a direction to the petitioner to surrender the key forthwith and permitted respondent No.2 to receive the key on the date of surrender. Learned Munsiff posted the case on 24-09-2007 for production of the key. While so, petitioner filed this writ petition challenging Exts.P5, P7 and P9 orders. Petitioner sought a declaration that Ext.P5, order passed by the vacation court is valid only during the period of vacation and for a direction to the learned Munsiff to pass appropriate orders on Ext.P2, application. There is also a prayer to set aside Ext.P9, common order and to appoint an Advocate Commissioner to verify the stock in trade. This court while entertaining the writ petition passed an interim order of stay of Exts.P5, P7 and P9 orders and respondents were restrained from running the medical shop. While this writ petition was pending, parties were referred to the mediation centre to ascertain possibility of a settlement of the dispute. It appears that some settlement was (allegedly) arrived W.P.C.No.28727 of 2007 : 4 : at in mediation which was reported to this court by the mediator. Petitioner maintains that there was no settlement in mediation as according to her, she was made to sign some blank papers. This court directed all who were concerned with the mediation and alleged settlement to file affidavits and accordingly they have filed affidavits stating what according to them transpired in the course of mediation. 2. It is argued by learned counsel for petitioner that settlement allegedly arrived at in mediation cannot be accepted for the reason above stated. It is also pointed out that unless the settlement is accepted by this court, it does not amount to a disposal of the case. Learned counsel contended that Exts.P5, P7 and P9 are not sustainable. According to the learned counsel Ext.P5, order passed by the vacation court is only provisional in nature but, learned Munsiff proceeded under a erroneous impression of law that as a superior court (vacation court, the learned District Judge) has passed orders (including Ext.P5,order) on Ext.P2, application (I.A.No.1466 of 2007) learned Munsiff was helpless in the matter and was bound by the said orders and based on Ext.P5, order has proceeded to pass further orders. Learned counsel for respondent Nos.2 and 3 in response contend that allegations regarding settlement at W.P.C.No.28727 of 2007 : 5 : mediation made by the petitioner are all untrue and cannot be sustained. It is contended that though order passed by the vacation court is only provisional in nature it would remain in force until the application is otherwise disposed of by the regular court (learned Munsiff) as held by this court in Viswanathan Vs. District Judge (1989(2) KLT 33), no attempt was made by the petitioner for disposal of Ext.P2, application after it was transmitted to the regular court and hence Ext.P5, order passed on Ext.P2, application would stand. According to the learned counsel subsequent orders are passed by the learned Munsiff pursuant to Ext.P5, order and no interference is required particularly since attempt of petitioner to get a review of Ext.P9, common order was dismissed by Ext.P13, order. 3. I have considered the rival contentions and perused relevant records. So far as settlement allegedly arrived between the parties in mediation is concerned, I consider it not necessary to go into the controversy whether there was a settlement of the dispute involving all the contestants or not. So far as this proceeding is concerned, it is sufficient to note that petitioner is not agreeable to the settlement (allegedly) reached in mediation. The settlement becomes effective and binding on the parties only when a decree is passed by the court concerned in accordance W.P.C.No.28727 of 2007 : 6 : with such settlement. Rule 24 of the Civil Procedure (Alternative Dispute Resolution) Rules, 2009, (for short, “the Rules”) states that when a settlement is reached, the same singed by the parties or their power of attorney and attested by the counsel shall be forwarded to the court with a covering letter singed by the mediator. Rule 25 of the Rules requires the court to fix a date for recording settlement and passing a decree. As per sub rule (a) of Rule 25 court is to issue notice to the parties within seven (7) days of receipt of settlement fixing a day for recording settlement. Such date shall not be beyond fourteen (14) days from the date of receipt of settlement. Then the court has to “record the settlement, if it is lawful”. Sub rule (b) of Rule 25 requires the court to pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the suit. Sub rule (c) refers to the procedure to be adopted by the court if settlement disposes only some of the issues involved. Hence settlement becomes effective and concludes the suit only when the court gives its imprimatur on the settlement and passes a decree in accordance with it. Until the court gives its assent by acceptance and passes a decree, settlement continues to be a contract from which one or all the contracting parties are entitled to withdraw. The stand of W.P.C.No.28727 of 2007 : 7 : petitioner that she was not a party to the settlement can be taken as amounting to withdrawal from the alleged settlement. Learned counsel for respondent Nos.2 and 3 stated that in the light of the controversy concerning settlement respondent Nos.2 and 3 are also not interested in proceeding with the settlement. In the above circumstances I do not intend to pass a decree in terms of the (alleged) settlement. So far as this court is concerned the (alleged) settlement ends there. This however shall not and will not prevent appropriate forum on the administrative side going into the disputed questions if it so decides and in taking appropriate action on the matter. 4. Now back to the disputed questions in the case. On Ext.P2, application (I.A.No.1466 of 2007) the vacation court directed respondent Nos.1 to 3 not to forcibly evict petitioner from the suit property or to interfere with her enjoyment of the said property. Ext.P5, order was also passed by the vacation court (on 22-05-2007) taking into account objection of respondent Nos.2 and 3 in the light of Ext.B1 produced in the vacation court. Interim order on Ext.P2, application was modified to the extent that respondent No.2 was permitted to participate in the business. Petitioner does not admit genuineness of Ext.B1, agreement and contends that even as per Ext.P5, order there is W.P.C.No.28727 of 2007 : 8 : no order of injunction against petitioner. It is seen from Ext.P7, order (See paragraph 3 of the order) that learned Munsiff was under the impression that he could not go beyond the orders passed by the vacation court on Ext.P2, application (including Ext.P5, order). That view of learned Munsiff is legally not correct and cannot be sustained. Orders passed by the vacation court on Ext.P2, application is only provisional in nature of course, it remain in force until regular court disposed of the application. Notionally speaking the vacation court, may be a court superior to the regular court, is functioning as the regular court itself and the order of the vacation court is subject to an appeal to the court to which appeal lies from the order of the regular court. If the appeal is filed in the very same court which as vacation court passed the impugned order, such court may for the sake of propriety make over the appeal to another court having concurrent jurisdiction to hear such appeal. The dictum laid down in Viswanathan Vs. District Judge (supra) referred to by learned counsel for respondent Nos.2 and 3 is also to that effect. As rightly pointed out by counsel for respondent Nos.2 and 3, orders passed by the vacation court do not cease to be effective on the vacation ceasing. Such orders remain in force till the matter is heard and decided by the regular court. Hence it is W.P.C.No.28727 of 2007 : 9 : not as if learned Munsiff was bound by whatever orders passed by the vacation court on Ext.P2, application. If a request is made to dispose of Ext.P2, application learned Munsiff is bound to dispose of that application on merit, untrammeled by the orders passed by the vacation court. Learned Munsiff was therefore not correct in being under the impression that he is bound by Ext.P5, order. But I make it clear that orders passed by the vacation court on Ext.P2, application would remain in force until learned Munsiff passed appropriate orders on Ext.P2, application. So far as C.M.A.No.7 of 2009 filed by petitioner and pending before learned Sub Judge, Attingal is concerned, that appeal is only against Ext.P5, order passed by the vacation court and the decision on that C.M appeal cannot in anyway affect disposal of Ext.P2, application by the learned Munsiff or any other order that learned Munsiff may pass on that application. Hence notwithstanding pendancy of C.M.A.No.7 of 2009 and the order that learned Sub Judge may pass on that appeal (which again is only provisional in nature), learned Munsiff has to dispose of Ext.P2, application on merit. 5. It is true that Ext.P7, order was reviewed and Ext.P9, order was passed. But while passing Ext.P9, order also learned Munsiff was on the erroneous impression as to the binding force W.P.C.No.28727 of 2007 : 10 : of orders passed on Ext.P2, application by the vacation court. Ext.P7, order as well as Ext.P9, order passed on review suffer from an illegality in the sense that learned Munsiff did not consider Ext.P2, application on merit and was under a wrong impression about binding force for Ext.P5, order and as if he was to pass only consequential orders based on Ext.P5, order. Now, what is required is to direct learned Munsiff to dispose of Ext.P2, application on merit. It follows that for the said reason Ext.P9, order passed by the learned Munsiff cannot be sustained. Learned Munsiff has to dispose of Ext.P2, application on merit. It is open to the learned Munsiff to simultaneously hear and dispose of Ext.P6, application also. I make it clear that I have not gone into the merit of contentions raised by either side in any of the applications. Resultantly this writ petition is allowed in the following lines: (i) Ext.P7, order and Ext.P9, order passed on review of Ext.P7, order are set aside and Ext.P6, application is remitted to the court of learned Munsiff for fresh consideration and disposal. (ii) Learned Munsiff shall notwithstanding the provisional order passed by vacation court and untrammeled by it and the pendancy of C.M.A.No.7 W.P.C.No.28727 of 2007 : 11 : of 2009 or any decision that may be passed in that appeal dispose of Ext.P2, application on merit treating orders passed by the vacation court on that application as provisional in nature only to remain in force until Ext.P2, application is finally disposed of. (iii) I make it clear that it is open to the learned Munsiff to dispose of Ext.P6, application simultaneously with Ext.P2, application. (iv) Considering the urgency stated by counsel on both sides learned Munsiff is directed to dispose of Exts.P2 and P6, applications as early as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-