Bombay High Court
Sou. Surekha Tanaji Naik vs Shri. Tanjaji Balaso Naik on 22 April, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:18070
cra 311 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.311 OF 2022
Surekha Tanaji Naik,
Age 37 years, Occu - Household,
R/o Rendal, Tal. Hatkangale,
Dist. Kolhapur. ... Applicant
versus
1. Tajani Balaso Naik,
Age 41 years, Occu - Agriculture,
R/o Tendal, Tal. Hatkangale,
Dist. Kolhapur.
2. Malutai Balaso Naik,
Age 70 years, Occu - Agriculture,
R/o as above.
3. Balaso Mahadeo Naik,
Age 75 years, Occu - Agriculture.
R/o as above. ... Respondents
Mr. Akshay Kulkarni, for Applicant.
Mr. S.S.Jagtap, for Respondents.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 29 JANUARY 2025
PRONOUNCED ON : 22 APRIL 2025
JUDGMENT :
1. This Revision is directed against an order dated 15 March 2022 passed
by the learned Civil Judge, Sr. Division, Jaysingpur, on an application
(Exh.10) for rejection of the Misc. Civil Application No.87 of 2021 (main
application) under the provisions of Order VII Rule 11(d) of the Code of Civil
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Procedure, 1908, on the premise that the main application was barred by law.
2. The background facts leading to the Revision Application can be
summarized as under :
2.1 The marriage of the applicant was solemnized with Respondent No.1
on 10 June 2007. Respondent Nos.2 and 3 are the parents of Respondent
No.1.
2.2 In the wake of the marital discord, the Respondents allegedly harassed
and ill-treated the applicant. Respondent No.1 allegedly contracted marriage
with another woman during the subsistence of the marital bond between the
applicant and Respondent No.1.
2.3 The applicant approached the Protection Officer appointed under the
provisions of Protection of Women from Domestic Violence Act, 2005 (DV Act,
2005). The Protection Officer forwarded the complaint to the Judicial
Magistrate, First Class, Jaysingpur, and, thereupon, Criminal Misc. Application
No.15 of 2019 came to be registered under the provisions of DV Act, 2005.
2.4 In the meanwhile, the Applicant and Respondents explored the
possibility of an amicable resolution of the dispute. On 29 June 2019, the
Applicant and Respondent Nos.1 and 3 filed a joint pursis to place the said
DV proceedings before the Lok Adalat. On 13 July 2019, before the National
Lok Adalat, the Applicant and Respondent Nos.1 to 3 appeared and filed a
Compromise Pursis (Exh. C). Lok Adalat Panel recorded the settlement in
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terms of the Compromise Pursis and the proceedings under DV Act i.e.
PWDV Application No.15 of 2019, came to be disposed in accordance with
the Compromise Memo (Exh. 9 therein).
2.5 Under the terms of the compromise, the Respondents agreed, inter alia,
to give the residential house situated in Gat No.991 at Mauje Rendal to the
applicant for her independent residence permanently, and that the
Respondent Nos.1 to 3 and the woman, with whom Respondent No.1 had
allegedly contracted second marriage, were to reside in a shed abutting the
house which was given to the applicant.
2.6 Respondent Nos.1 to 3 preferred main application purportedly under
Order XXIII Rule 3 and Section 151 of the Code, before the Court of Civil
Judge, Sr. Division, the Presiding Officer of which was the head of the Lok
Adalat Panel contending, inter alia, that the consent order passed in PWDVA
No.15 of 2019 was obtained by fraud, the applicant had obtained signatures
of the Respondents on the Compromise pursis (Exh.8 therein) by practicing
fraud and misrepresentation, the Respondent Nos.1 to 3 were not present
before the National Lok Adalat when the Compromise Memo was accepted by
the Lok Adalat and the Compromise Memo was otherwise illegal and void on
account of the fact that the agricultural land bearing Gat No.991 and the
residential house therein, was the joint family property of Respondent No.3
and there was no partition by metes and bounds amongst Respondent Nos.1
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to 3 and the daughter of Respondent No.3. The other co-sharers had an
undivided interest in the said property, and, therefore, it could not have been
allotted to the applicant.
2.7 On 22 October 2021, the learned Civil Judge, Sr. Dvn., Jaysingpur,
directed that the main application be registered as Misc. Civil Application,
keeping open the issue of maintainability of the application.
2.8 The applicant appeared and filed an application (Exh.10) for rejection of
the main application contending, inter alia, that once the matter is settled
before, and award is passed by, the Lok Adalat, such an award can be
challenged only by way of Writ Petition before the High Court and the award
of the Lok Adalat cannot be assailed before the Civil Court.
2.9 The Respondents resisted the application asserting that the application
was maintainable under the provisions of Order XXIII Rule 3 of the Code;
under which the question of legality and validity of the settlement or
compromise arrived at between the parties was required to be determined by
the Court which had accepted the Compromise Memo.
2.10 The learned Civil Judge was persuaded to reject the application
holding, inter alia, that since Respondent Nos.1 to 3 had filed Misc. Civil
Application and not a suit, the bar against challenging the award passed by
the Lok Adalat by way of a suit was not attracted and the Civil Court was
competent to examine the legality and validity of the Compromise Memo
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under the provisions of Order XXIII Rule 3 of the Code. Since the legality and
validity can only be determined after a full fledged inquiry, the application for
rejection of the main application was not tenable.
2.11 Being aggrieved, the applicant has invoked the revisional jurisdiction.
3. I have heard Mr. Kulkarni, learned Counsel for the Applicant, and Mr.
Jagtap, learned Counsel for Respondent Nos.1 to 3, at some length.
4. Mr. Kulkarni, learned Counsel for the applicant, would urge that the
learned Civil Judge transgressed the jurisdiction in entertaining the application
to set aside the award passed by the Lok Adalat, despite having noted the
decision of the Supreme Court in the case of Bhargavi Constructions and Anr.
V/s. Kothakapu Muthyam Reddy and Ors.1. The view of the learned Civil
Judge that though the suit to set aside an award passed by the Lok Adalat
would have been certainly barred, yet the Misc. Civil Application can be
lawfully entertained, is untenable.
5. Mr. Kulkarni further urged that the endeavour of the learned Civil Judge
to draw support and sustenance to the exercise of jurisdiction from the
provisions contained in Order XXIII Rule 3 was also legally unsustainable as
the said provision does not override the three-Judge Bench decision of the
Supreme Court in the case of State of Punjab V/s. Jalour Singh2, being the
law declared by the Supreme Court and binding on all the Courts and
1 (2018) 13 SCC 480
2 (2008) 2 SCC 660
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authorities under the provisions of Article 141 of the Constitution of India. It
was, thus, not open for the learned Civil Judge to entertain the main
application.
6. In opposition to this, Mr. Jagtap, learned Counsel for the Respondents,
supported the impugned order. It was submitted that it was the bounden duty
of the Lok Adalat to examine the legality and validity of the purported
Compromise Memo, allegedly executed between the applicant and
Respondents, before the Lok Adalat gave its imprimatur. The Explanation to
Rule 3 Order XXIII explicitly provides that an agreement or compromise which
is void or voidable under the Indian Contract Act, 1872 shall not be deemed to
be lawful within the meaning of the said rule. In the case at hand, ex-facie,
the property which came to be allegedly exclusively allotted to the applicant
did not belong to Respondent No.1. Since it is a joint family property, all the
co-sharers have an undivided interest therein. National Lok Adalat did not
delve into this aspect of the matter.
7. Moreover, Respondent Nos.1 to 3 have made specific allegations of
fraud, and that they were not present before the Lok Adalat when the
Compromise Memo was accepted and the DV proceedings No.15 of 2019
came to be disposed in accordance with the Compromise Memo. These
allegations warrant investigation into facts and determination on merits.
Therefore, learned Civil Judge committed no error in rejecting the application
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for the rejection of the main application.
8. To begin with, it is necessary to note that the issue about the tenability
of the application for rejection of the main application was raised on the
ground that the provisions contained in Order VII Rule 11 do not apply to such
miscellaneous proceedings. Moreover, the underlying proceeding i.e. PWDVA
No.15 of 2019, was not instituted before a Civil Court. Therefore, the
application for rejection of the main application itself was not tenable.
9. In the backdrop of the view, which this Court is persuaded to take, it
may not be necessary to delve deep into this aspect of the matter. Suffice to
note that the Respondents approached the Civil Court to set aside the award
passed by the Lok Adalat on the premise that the Presiding Officer of the
Court of Civil Judge, Sr. Division, was the head of the Panel of the Lok Adalat,
and, thus, the said Court had jurisdictional competence to entertain, try and
decide the application under Order XXIII Rule 3 of the Code. Once the
Respondents resorted to the provisions contained in Order XXIII Rule 3 of the
Code, it was not open for the Respondents to urge that the provisions
contained in the Code were not attracted to the main application. In view of
the provisions contained in Section 141 of the Code the procedure provided
therein in regard to suits shall be followed as far as it can be made applicable
in all proceedings in a court of civil jurisdiction.
10. Moreover, in the backdrop of the legal position which emerges, the
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issue of the procedure adopted for the trial of the underlying proceeding
(which was eventually settled before the Lok Adalaat), is relegated to a
secondary position. The primary question that wrenches to the fore is, is it
permissible to attack the award passed by the Lok Adalat either before the
same Court or before the Appellate Court ?.
11. A reference to the relevant provisions of the Legal Services Authorities
Act, 1987, may be apposite. Under clause (d) of Section 2, ‘Lok Adalat’
means Lok Adalat organized Under Chapter VI of the said Act, which contains
a fasciculus of the provisions. Under sub-Section (5) of Section 19, Lok
Adalat shall have jurisdiction to determine and to arrive at a compromise or
settlement between the parties to a dispute in respect of
(i) any case pending before; or
(ii) any matter which is falling within the jurisdiction of, and
is not brought before, any Court for which the Lok Adalat is organized.
12. The relevant part of Section 20 under the caption ‘Cognizance of cases
by Lok Adalats’ reads as under :
“20. Cognizance of cases by Lok Adalats –
(1) Where in any case referred to in clause (i) of sub-section (5) of
Section 19, –
(i)(a) the parties thereof agree; or
(b) One of the parties thereof makes an application to the
Court, for referring the case to the Lok Adalat for settlement and ifSSP 8/16
cra 311 of 2022.docsuch Court is prima facie satisfied that there are chances of such
settlement; or
(ii) the Court is satisfied that the matter is an appropriate one
to be taken cognizance of by the Lok Adalat, the Court shall refer
the case to the Lok Adalat :
Provided that no case shall be referred to the Lok Adalat under
sub-clause (b) of clause (i) or clause (ii) by such Court except after
giving a reasonable opportunity of being heard to the parties.”
13. Then comes, Section 21, which provides for the Award of the Lok
Adalat. Under sub-Section (1) of Section 21, every award of the Lok Adalat
shall be deemed to be a decree of a Civil Court or, as the case may be, an
order of any other Court. Sub-section (2) of Section 21, in terms, declares that
every award made by the Lok Adalat shall be final and binding on all the
parties to the dispute and no appeal shall lie to any Court against the award.
14. In the case at hand, it appears that the Lok Adalat took cognizance of
the matter under Section 20(1)(i)(a) as the parties had filed a joint pursis
(Exhibit 8) in PWDVA No.15 of 2019. It is imperative to note that in the main
application, an endeavour was made on behalf of the Respondents to
contend that the applicant had obtained signatures of the Respondents on the
documents, including a joint compromise pursis to place the matter before the
Lok Adalat. Execution of the joint pursis (Exhibit 8), as such, has not been
put in contest. Respondent Nos.1 to 3 also endeavoured to impress upon the
Court that they were not present when the Compromise Memo (Exh. 9) in
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PWDVA No.15 of 2019 was taken up by the Lok Adalat. Thus, a fraud was
played on the Court.
15. Prima facie, I am afraid to accede to the aforesaid submissions on
behalf of Respondent Nos.1 to 3. The Head of the Panel had passed an
order on the joint Pursis (Exh. 8) to the effect that, both the parties were
present before the Panel of National Lok Adalat; the contents of the
Compromise Memo (Exh. 9) were read over to both the parties; the parties
accepted the contents thereof as true and correct and also admitted their
signatures on the Compromise Memo (Exh.9); and the Compromise Memo
(Exh.9) was also signed by the respective Advocates. Thus, the compromise
Memo (Exh. 9) was accepted and the Presiding Officer passed an order on
the application PWDVA No.15 of 2019 again recording the aforesaid facts.
16. From the perusal of the material on record, it becomes evident that,
initially Lok Adalat took cognizance of the matter in conformity with the
provisions of the Act, 1987 and followed the process of verification of the
settlement arrived at between the parties and after recording satisfaction that
the Compromise Memo (Exh.9) was arrived at by the parties out of their own
volition, accepted the same and PWDVA No.15 of 2019 came to be disposed
in accordance with the Compromise Memo (Exh.9). Prima facie, neither any
jurisdictional error nor defect in procedure is evident from the proceedings of
the Lok Adalat.
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17. The thrust of the submission on behalf of Respondent Nos.1 to 3 was
that the award of the Lok Adalat was obtained by practicing fraud and by
setting up fictitious persons. The learned Civil Judge was of the view that the
legality and validity of the Compromise Memo could be examined by the Civil
Court in the wake of the aforesaid allegations. Whether the said approach of
the learned Civil Judge is justifiable ?
18. The controversy is no longer res-integra. A three judge Bench of the
Supreme Court in the case of State of Punjab V/s. Jalour Singh (supra),
enunciated that, once the Award is passed by the Lok Adalat in terms of the
settlement arrived at between the parties, it becomes final and binding on the
parties to the settlement and becomes executable as if it is a decree of a civil
Court, and no appeal lies against it to any Court and if any party wants to
challenge such an award based on settlement, it can be done only by filing a
petition under Article 226 and/or Article 227 of the Constitution, that too on
very limited grounds. The Observations of the Supreme Court in paragraph
No.12 read as under :
“12. It is true that where an award is made by the Lok Adalat
in terms of a settlement arrived at between the parties (which is
duly signed by parties and annexed to the award of the Lok
Adalat), it becomes final and binding on the parties to the
settlement and becomes executable as if it is a decree of a civil
Court, and no appeal lies against it to any Court. If any party
wants to challenge such an award based on settlement, it can
be done only by filing a petition under Article 226 and/or ArticleSSP 11/16
cra 311 of 2022.doc227 of the Constitution, that too on very limited grounds. But
where no compromise or settlement is signed by the parties
and the order of the Lok Adalat does not refer to any
settlement, but directs the Respondent to either make payment
if it agrees to the order, or approach the High Court for disposal
of appeal on merits, if it does not agree, its not an award of the
Lok Adalat. The question of challenging such an order in a
petition under Article 227 does not arise. As already noticed, in
such a situation, the High Court ought to have heard and
disposed of the appeal on merits.” (emphasis supplied )
19. In the case of Bhargavi Constructions and Anr. (supra), on which
reliance was placed by Mr. Kulkarni, the Plaintiffs therein had instituted a suit
for declaration that the award passed by the Lok Adalat was obtained by the
Defendants therein by fraud and misrepresentation, and, hence, the award be
declared illegal, null and void and not binding on the Plaintiffs. The trial Court
had rejected the plaint by invoking the powers under clause (d) of Rule 11 of
Order VII of the Code as the challenge before the Civil Court to the award of
the Lok Adalat was barred in view of the judgment of the Supreme Court in
the case of State of Punjab Vs. Jalour Singh (supra). The High Court set
aside the order of rejection of the plaint on the premise that since the suit was
founded on the allegations of misrepresentation and fraud, it is capable of
being tried on its merits by the Civil Court.
20. The Supreme Court held that the High Court was not right in by-passing
the law laid down by the Supreme Court on the ground that the suit can be
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filed to challenge the award, if the challenge is founded on the allegations of
fraud. The observations of the Supreme Court in paragraphs 24 and 26 are
instructive, and, hence, extracted below :
“24. In our considered view, the aforesaid law laid down by this
Court is binding on all the Courts in the country by virtue of
mandate of Article 141 of the Constitution. This Court, in no
uncertain terms, has laid down that challenge to the award of Lok
Adalat can be done only by filing a writ petition under Article 226
and/or Article 227 of the Constitution of India in the High Court and
that too on very limited grounds. In the light of clear
pronouncement of the law by this Court, we are of the opinion that
the only remedy available to the aggrieved person(respondents
herein/plaintiffs) was to file a writ petition under Article 226 and/or
227 of the Constitution of India in the High Court for challenging
the award dated 22.08.2007 passed by the Lok Adalat. It was then
for the writ Court to decide as to whether any ground was made
out by the writ petitioners for quashing the award and, if so,
whether those grounds are sufficient for its quashing.”
26. We also do not agree with the submissions of Mr.
Adinarayana Rao, learned senior counsel for the respondents
when he urged that firstly, the expression “law” occurring in
clause(d) of Rule 11 Order 7 does not include the “judicial
decisions” and clause (d) applies only to bar which is contained in
“the Act” enacted by the Legislature; and Secondly, even if it is
held to include the “judicial decisions”, yet the law laid down in the
case of State of Punjab (supra) cannot be read to hold that the suit
is barred. Both these submissions, in our view, have no merit.”
(emphasis supplied)
21. The aforesaid pronouncement in the case of Bhargavi Constructions
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(supra) thus sets the controversy at rest as regards the challenge to the
award passed by the Lok Adalat, even when the said challenge is premised
on the allegations of fraud and misrepresentation.
22. As noted above, the principal contention of Respondent Nos.1 to 3 in
the instant case as well is that, the signatures of Respondent Nos.1 to 3 on
the joint pursis were obtained by practicing fraud on them and they were not
present before the Lok Adalat when the Compromise Memo was accepted
and recorded. Thus, the decision of the Supreme Court in the case of
Bhargavi Constructions (supra), governed the facts of the case with equal
force and rigour.
23. The learned Civil Judge was clearly in error in entertaining the main
application on the ground that it was a Misc. Civil Application and not a suit.
The medium of the proceeding by which the award of the Lok Adalat was
sought to be assailed was of no moment. The challenge to the award of the
Lok Adalat before the Court in which the original proceedings was filed or
before the appeal Court was simply not maintainable. Whether the challenge
was mounted by way of a separate suit or Misc. Civil Application in the
original proceedings did not matter.
24. The learned Civil Judge also committed jurisdictional error in venturing
on to entertain the Main Application on the premise that the said application
was tenable under Order XXIII Rule 3 of the Code. It is true, a conjoint
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reading of the provisions contained in Explanation to Order XXIII Rule 3 and
Rule 3-A of the Code, leads to an inference that a consent decree on the
strength of the compromise or settlement arrived at between the parties
cannot be challenged by instituting a separate suit on the ground that the
compromise or settlement arrived at between the parties was not lawful and
the remedy is to approach the Court which passed a consent decree with a
case that the underlying compromise or settlement was not lawful. However,
the said provision cannot be resorted to where the award is passed by the
Lok Adalat as constituted under the provisions of the Act, 1987. The law
declared by the Supreme Court in the case of State of Punjab v/s. Jalour
Singh (supra), cannot be indirectly circumvented by taking recourse to the
provisions contained in Order XXIII Rule 3 of the Code.
25. The conspectus of aforesaid consideration is that the very act of
entertaining the challenge to the award passed by the Lok Adalat was not
legally sustainable. Thus de hors the tenability of the application for rejection
of the Main Application under Order VII Rule 11 of the Code, the Main
Application cannot be countenanced. Resultantly, the Revision Application
deserves to be allowed.
26. Hence, the following order :
ORDER
(i) The Civil Revision Application stands allowed.
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(ii) The impugned order dated 15 March 2022 stands quashed and
set aside.
(iii) Main Application i.e. MCA No.87 of 2021 assailing the award
passed by the Lok Adalat stands rejected.
(iv) In the circumstances, there shall be no order as to costs.
( N.J.JAMADAR, J. )
SSP 16/16
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 22/04/2025 21:28:05
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