IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 9287 of 2009(O) ------------------------------------- (REVIEW APPLICATION NOS.361/09, 472/09 & 560/09 IN I.A.NO. 752/91 IN O.S.NO.10/1971 OF SUB COURT, OTTAPALAM) ........ PETITIONER(S): -------------------------- VASUDEVAN NAMBOODIRI, AGED 54 YEARS, S/O. PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHRUKUDANGAD DESOM, PALLIPURAM DESOM, OTTAPALAM TALUK. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, MR. K.P.SUDHEER. RESPONDENT(S): ---------------------------- 1. KIRISHNAN NAMBOODIRI, S/O. PURUSHOTHAMAN NAMBOOIDIRI, KUMARAMPULAKKAL MANA, CHRUKUDANGAD AMSOM, PALLIPURAM DESOM, OTTAPALMAM. 2. SAVITHRI ANTHARJANAM, D/O. PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHEURU KUDANNGAD AMSOM, PALLIPURAM DESOM, OTTAPALAM TALUK. 3. NARAYANAN NAMBOODIRI, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARMPULAKKAL MANA, CHERUKUNDANGAD AMSOM, PALLIPURAM DESOM, OTTAPALAM. TALUK. 4. RUGMINI @ THANKAM ANTHARJANAM, W/O. PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA, CHRUKUDANGAD AMSOM, PALLIPURAM DESOM, OTTAPALAM TALUK. Kss ..2/- ..2... WPC.NO.9287/209 O 5. HAREESH, S/O.PURUSHOTHAMAN NAMBOODIRI, KUMARAMPULAKKAL MANA,CHRUKUDANGAD AMSOM, PALLIPURAM DESOM, OTTAPALAM. 6. DEEPA, D/O. PURUSHOTHAMAN NAMBOODIRI, ERIYATTUMANA, PANDIKKAD AMSOM AND DESOM, KOLAPARAMB POST, ERNAD TALUK. 7. NARAYANAN NAMBOODIRI, S/O. NARAYANN NAMBOODIRI, NJATTUVELA MANA, MANGALAM AMSOM, KUTTAPPAKAD DESOM, OTTAPALAM TALUK. 8. PRADEEP, S/O. NARAYANAN NAMBOODIRI, NJATTUVELA MANA, MANGALAM AMSOM, KUTTAPPAKAD DESOM, OTTAPALAM TALUK. 9. PRAMOD, S/O. NARAYANAN NAMBOODIRI, NJATTUVELA MANA, MANGALAM AMSOM, KUTTAPPAKAD DESOM, OTTAPALAM TALUK. R1 BY ADV. MR.T.SETHUMADHAVAN R4 & R6 BY ADV. MR. SANDEEP R5 BY ADV. MR. PARTHASARATHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON 22/06/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.9287/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SKETCH WHEREIN THE DISPUTE CONCERNING THIS WRIT PETITION EXIST. P2: COPY OF ORDER DTD. 22/01/2009 IN I.A.NOS.80/2009, 81/2009 AND 136/2009 IN I.A.NO.752/1991 IN O.S.NO.10/1971 PASSED BY SUBORDINATE JUDGE'S COURT, OTTAPALAM. P3: COPY OF ORDER DTD. 13/03/2009 IN REVIEW APPLICATION NOS. 361/09, 472/09 & 560/09 IN I.A.NO.752/91 IN O.S.NO.10/1971 PASSED BY SUBORDINATE JUDGE'S COURT, OTTAPALAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.9287 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 22nd June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. Call for the records leading to Exts.P2 and P3 and set aside Exts.P2 and P3. 2. Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 2. Petitioner is the 6th defendant in a suit for partition, O.S.No.10/1971 on the file of the Sub Court, Ottappalam, in which final decree proceedings are now pending. In the final decree proceedings, an advocate commissioner appointed by the court after measuring out the suit properties prepared a report and plan specifying the allotments to be made in favour of the sharers and the equities to be worked out in effecting partition by metes and bounds. Objections were raised by the parties to the report and plan, and pursuant to which a supplementary report and sketch were also prepared by the Commissioner on orders issued by the court. Objections against that report and sketch were raised by some of the parties requesting for remitting them to the commissioner for W.P.C.No.9287/09 - 2 - preparation of a proper and correct report and sketch. Discussions to thrash out the disputes and to reach a settlement followed in an adalat conducted by the Presiding Officer and pursuant thereto, Ext.P2 order dated 26.1.2009 was passed showing the terms of settlement purported to have been arrived at by the parties and recording the exchange of plots and also concessions made by them in effecting a partition by metes and bounds. The present petitioner, the 6th defendant in the suit and the 5th respondent in I.A.No.752/91 (final decree application), later filed a review petition against Ext.P2 order submitting that the recording made by the learned Sub Judge with respect to the exchange of properties and concessions purported to have been agreed upon by him were not true and correct and Ext.P2 order passed by the court has to be reviewed. Two more review applications, one by the supplementary 24th respondent and another jointly by supplementary respondents 23 and 25 were also presented by those respondents that the settlement recorded in Ext.P2 was without their consent and as such improper and not correct. The learned Sub Judge considered all the review petitions together, found them meritless and dismissed them vide Ext.P3 order dated 13.3.2009. Impeaching the legality, propriety and correctness of Exts.P2 and P3 orders contending that the orders, both of them, W.P.C.No.9287/09 - 3 - are totally unsustainable in law and facts, the petitioner has invoked the supervisory jurisdiction of this court under Article 227 of the Constitution of India to quash the orders. 3. I heard learned Senior Counsel, Mr.V.Chitambaresh appearing for the petitioner, Adv.Mr.Sandeep, for respondents 4 and 6, and Adv.Mr.Sethumadhavan, for the 1st respondent. Respondents 2, 3, 7, 8 and 9 though served, have not entered appearance. Learned Senior Counsel Mr.Chitambaresh inviting my attention to Order 23 Rule 3 C.P.C. which mandated any compromise reached by the parties to be recorded in writing and signed by the parties, submitted that whatever recorded by the learned Sub Judge in Ext.P2 as having been agreed to and conceded by the petitioner, 6th respondent, in the final decree proceedings, cannot have the sanction of law as the procedural requirement insulated under the above rule to protect the substantive right of the parties involved in a lis pending adjudication before a court is flagrantly violated. Learned Senior Counsel relied on Gurpreet Singh v. Chatur Bhuj Goel [ (1988) 1 S.C.C. 270] to contend that even when settlement is arrived between the parties during the hearing of a suit or appeal or any proceeding, the court should insist upon the parties to reduce the terms of the compromise in writing subscribed with their signatures. So much so, W.P.C.No.9287/09 - 4 - Ext.P2 order passed by the court without complying the mandate under Order 23 Rule 3 C.P.C., it is submitted, cannot be sustained under law. On the factual aspects involved as to the terms of settlement agreed and concessions made by the petitioner/6th respondent, learned counsel submitted that the recording made by the court in Ext.P2 order was incorrect and that compelled the 6th respondent to file an application for review which was the proper course to be adopted to correct a mistake committed or error apparent in any order or judgment passed by the court. The review petition so moved by the petitioner as well as by some other respondents who also questioned the correctness of the settlement recorded in Ext.P2 order, it is submitted, was rejected by the learned Sub Judge under Ext.P3 order without appreciating the incurable irregularities vitiating that order which rendered it sustainable under law. It is also brought to my notice that in a revision filed by respondents 23 and 25 as against Ext.P3 order to the extent the review petition moved by them against Ext.P2 was dismissed by the learned Sub Judge, this court reversed the dismissal of their review petition as well as the acceptance of the settlement purported to have been made at their instance in Ext.P2 order, directing the learned Sub Judge to reconsider the question of allotment of properties to those W.P.C.No.9287/09 - 5 - respondents in the light of the objections raised by them to the allotment made by the commissioner. A similar direction, after setting aside Exts.P2 and P3 orders in respect of the petitioner is canvassed by the learned Senior Counsel for a reconsideration by the learned Sub Judge, the question of allotment to the petitioner in the light of his objections to the commission report. On the other hand, Mr.Sethumadhavan, counsel appearing for the first respondent inviting my attention to Exts.P2 and P3 orders submitted that what are all stated by the learned Sub Judge in Ext.P2 order was based on the terms agreed upon and the settlement arrived by the parties in the presence of the Presiding Officer, but, later, to retract from the terms conceded to in the settlement for exchanging the properties agreed upon the review petition was filed. Petitioner (6th defendant) was personally and directly involved in the settlement talks, and merely for the reason that the terms agreed upon have not been recorded with his signature, he should not be allowed to retract from the terms agreed upon is the further submission of the counsel. Pointing out that the litigation is continuing for nearly three decades, the learned counsel urged that the case advanced by the petitioner to impeach Exts.P2 and P3 orders is different from the case of the petitioners in C.R.P.No.211/09 (respondents 4 and 6 in the present W.P.C.No.9287/09 - 6 - petition who are the legal heirs of deceased 4th respondent) as the son of one of the above parties alone participated in the settlement talks, but, not any of those respondents. But, in the case of the present petitioner, the factual situation was different as he was directly involved in the settlement talks and the terms recorded by the court were based on what was agreed upon by him before the Presiding Officer, which was correctly recorded. None of the other sharers has any dispute with respect to the settlement recorded under Ext.P2 order is also highlighted by the learned counsel to contend that no interference with Exts.P2 and P3 orders is called for. 4. Recording of a settlement purported to have been arrived by the parties to a proceeding without getting the settlement subscribed by them with their signatures has given rise to more than one revision before this court impeaching the orders of the court on the settlement. Ext.P2 order whereunder the terms of settlement are recorded by the learned Sub Judge indicate that such settlement was arrived in an adalat in the presence of the Presiding Officer. Presumably the case, in the final decree proceedings, after a commission report was collected, to which objections were raised by some of the parties, was referred to an adalat for settlement or taken up in an 'adalat sitting' of the court. Ext.P2 order would show that the W.P.C.No.9287/09 - 7 - adalat was conducted by the Presiding Officer in the presence of the advocates who appeared for the parties as evident from the preface to the order that “the petitions came up for this day for adalat settlement before me in the presence of .........”(underline supplied). After stating that an adalat settlement in the presence of the advocates was held by the court, an order was passed in which it is stated the parties involved in the proceedings came to settlement and 'agreed before the court in the presence of their counsel' (underline supplied) the terms of the settlement agreed upon. Since no further details are given in the order as to who were the members constituting the adalat or adalat sitting whether anyone other than the Presiding Officer was also a member, it cannot be stated that the adalat held was one organised as a lok adalat under Section 19 of the Legal Services Authorities Act, 1987. Further more, Ext.P2 order would show that in the adalat no settlement was recorded and reduced in writing by the parties or their counsel nor any award passed. So, what is evident is a settlement talk in respect of the disputes involved in the lis with the intervention of the Presiding Officer was conducted and then the terms of settlement were later recorded in a judicial order (Ext.P2) in court. No doubt, the court can act as an intervenor to persuade the parties to come to terms but W.P.C.No.9287/09 - 8 - whether the intervention of the court as a facilitator or mediator or conciliator, whatever the name attributable for such participation, to settle the disputes in a pending case with active involvement conducting an adalat in the presence of the parties and the counsel, but, not as a lok adalat orgainsed under the Legal Services Authorities Act which has got statutory recognition, is appreciable or permissible. Such a course is fraught with serious consequences since the opinions and observations made by the Presiding Officer to persuade the parties to reach a settlement are likely to be misunderstood by one or the other party involved in the proceeding and chances of generating an apprehension in the mind of one or the other parties that his cause will suffer if the suggestions made for settlement by the Presiding Officer are not agreed upon cannot be ruled out. When adalats are organised and cases pending on the file of the courts are referred to for settlement, it is imperative and all the more necessary that the Presiding Officer who is hearing such case is not a member of such an adalat constituted to bring out the settlement. In such adalats extraneous information not borne out by the records produced before court is likely to be presented by the parties to advance the cause pleaded by them, especially in matrimonial disputes, and it need not, but may, sometimes, sway W.P.C.No.9287/09 - 9 - and tilt the scales in the forming of the judicial decision ultimately rendered in the case referred to, if it was not settled by the parties. In this context it may be advantageous to take note of the observations made by the apex court in B.P.Moideen Sevamandir v. A.M.Kutty Hassan (2008 (16) SCALE 403) where the court addressing the urgent need for uniform guidelines for the effective functioning of the lok adalats commenting upon the lack of appropriate rules or guidelines at present has struck a note of caution that no court should permit any prejudice to creep in its judicial mind on account of what it perceives as unreasonable conduct for litigants before the lok adalats. What is stated in relation to lok adalats, needless to say, is applicable to any adalat. The apex court in the above decision has observed thus: “Every Judge should constantly guard against prejudice, bias and prejudging, in whatever form. Judges should not only be unbiased, but seem to be unbiased. Judiciary can serve the nation only on the trust, faith and confidence of the public in its impartiality and integrity.” Reference to the above decision is made in the context of this case not to indicate that in passing Ext.P3 order, dismissing the petition to review Ext.P2 order, the officer was in any way prejudiced, but only W.P.C.No.9287/09 - 10 - to point out that the active participation of the Presiding Officer having seizin over the case pending for his consideration, even if he guards against prejudice and bias in whatever form, may tend to generate in the mind of one or other parties involved in the case some apprehension over his impartiality and integrity. Active participation of the Presiding Officer in the adalat may be an affront at least to the second part guaranteed to be ensured by a Judge cautioned by the Supreme Court, referred to above “Judges should not only be unbiased, but seem to be unbiased”. (underline supplied) So, it is always safer and more appropriate that no Judge having a say over the lis participate in any adalat to which the case is referred to or conduct any adalat sitting, for resolving the disputes and settlement by the parties. 5. Ext.P2 order passed by the learned Sub Judge is the outcome of an adalat, but, not of a lok adalat, conducted by the Presiding Officer is itself sufficient to vitiate the terms of settlement recorded therein as having been agreed upon by the parties. Learned counsel for the petitioner is justified in contending that even if a compromise or settlement was arrived by the parties, it should have been reduced in writing and subscribed with their signatures. The mandate under Rule 3 Order 23 C.P.C. that the terms of compromise must be in W.P.C.No.9287/09 - 11 - writing and signed by the parties is emphasized by the apex court in Gurpreet Singh v. Chatur Bhuj Goel [ (1988) 1 S.C.C. 270] pointing out that such a procedural mandate is insisted to prevent false and frivolous pleas later that the suit has been adjusted wholly or in part by any lawful agreement or compromise, with a view to protract or delay the proceedings in the suit. In the above decision, the apex court has cautioned further that when the parties enter into a compromise during the hearing of a suit or appeal, it is the duty of the court to insist upon the parties to reduce the terms of the compromise in writing and to sign the agreement and that requirement cannot be dispensed with. Viewed in the light of the above binding decision also, it is needless to point out Ext.P2 order passed by the learned Sub Judge is clearly objectionable and cannot be sustained. That being so, the learned Sub Judge was not justified in dismissing Ext.P3 review petition moved by the petitioner contending that he had not agreed to exchange the properties as recorded in Ext.P2 order. Exts.P2 to the extent it affects the challenges raised by the petitioner to the report and plan of the commissioner has to be modified by allowing his review petition and setting aside Ext.P3 order. I do so. 6. The learned Sub Judge is directed to reconsider the question W.P.C.No.9287/09 - 12 - of allotment so far as it affects the interests of the present petitioner in the properties covered by the proceedings and pass appropriate orders evaluating the objections raised by him to the allotment made by the commissioner in his report. The Writ Petition is allowed. The Registrar (Subordinate Judiciary) shall place copy of this judgment before the Honourable the Chief Justice and also forward a copy to the Executive Chairman, Kerala State Legal Services Authority, to consider whether in the matter of involvement and participation of judicial officers in conducting of adalat or adalat sitting any directions/orders to be issued to ensure that the Presiding Officer having a say over the case shall not be a member, or participate, in the adalat to which such case is referred to/taken up for settlement. srd S.S. SATHEESACHANDRAN, JUDGE