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2009
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A.L.Abul Kalam Azad vs A.L.Jawaharlal

Madras High Court|03 August, 2009

JUDGMENT / ORDER

and 4747 and 4748 of 2011 and A.S.993 of 2009

1. A.L.Jawaharlal, Rep. by his Power Agent A.Soukath Ali

2. J.Najimunnisa Begum Rep. by Power Agent A.Soukath Ali http://www.judis.nic.in 2

3. A.Soukath Ali J.Shahul Hammed (died)

4. Raziya Begam

5. Mohammed Sadiq

6. Minor Mohammed Safiq

7. Minor Sumaiya (Minors 6th and 7th respondents are represented by their mother 4th respondent) .. Respondents in C.R.P.No.453 of 2017

1. A.L.Jawaharlal Rep. by Power Agent A.Soukath Ali

2. J.Najmunnisa Begum Rep. by Power Agent A.Soukath Ali

3. A.Soukath Ali

4. J.Shahul Hameed

5. Ragiya Behum

6. Mohammed Sadiq

7. Minor Mohammed Safiq

8. Minor Sumaiya (Minor respondents 7 and 8 Rep. by their mother, the 5th respondent) .. Respondents in A.S.No.553 of 2017 Civil Revision Petition No.4093 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.30 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

Civil Revision Petition No.4094 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 http://www.judis.nic.in 3 passed in I.A.No.31 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

Civil Revision Petition No.4747 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

Civil Revision Petition No.4748 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.22 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

Civil Revision Petition No.453 of 2017 filed under Article 227 of the Constitution of India, against the order and decretal order dated 26.10.2016 passed in I.A.No.49 of 2016 in O.S.No.3 of 2011 on the file of the Principal District Court, Perambalur.

Appeal Suit (First Appeal) No.553 of 2017 filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code against the judgment and decree dated 11.09.2017 passed in O.S.No.3 of 2011 on the file of the Mahila Court, Perambalur.

Appeal Suit (First Appeal) No.993 of 2009 filed under Section 96 of the Civil Procedure Code against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

For Petitioner/appellant in all C.R.Ps. and A.S : Mr.V.Raghavachari For Respondents in all C.R.Ps. and A.S. : Mr.S.Parthasarathy, Senior Counsel for Mr.G.Ilamurugu http://www.judis.nic.in 4 COMMON JUDGMENT R.SUBBIAH, J Since the issues involved in all these cases are inter-related to each other, they are disposed of by this common judgment.

2. The prayer in these Civil Revision Petitions and Appeal Suits (First Appeals) are as follows:

(a) Civil Revision Petition No.4093 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.30 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

(b) Civil Revision Petition No.4094 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.31 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

(c) Civil Revision Petition No.4747 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

(d) Civil Revision Petition No.4748 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.22 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

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(e) Civil Revision Petition No.453 of 2017 filed under Article 227 of the Constitution of India, against the order and decretal order dated 26.10.2016 passed in I.A.No.49 of 2016 in O.S.No.3 of 2011 on the file of the Principal District Court, Perambalur.

(f) Appeal Suit (First Appeal) No.553 of 2017 filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code against the judgment and decree dated 11.09.2017 passed in O.S.No.3 of 2011 on the file of the Mahila Court, Perambalur.

(g) Appeal Suit (First Appeal) No.993 of 2009 filed under Section 96 of the Civil Procedure Code against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.

3. For the purpose of convenience, the parties are herein referred to as appellant-A.L.Abul Kalam Azad and respondent-A.L.Jawaharlal.

4. O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur, was filed by the respondent, as against his brother, i.e. the appellant and others, for partition in respect of the suit properties. The appellant also filed suit in O.S.No.18 of 2005 on the file of the Principal District Court, Perambalur, against the respondent and his wife, for partition of 90% share in respect of the suit properties wantonly and wilfully left out by the respondent- Jawarhalal in O.S.No.13 of 2005, contending that the suit property was purchased and he has contributed about 90% of the amount for purchase of the http://www.judis.nic.in 6 same and its development. That apart, the appellant filed another suit in O.S.No.412 of 2005 for accounts against the father-in-law of the respondent, contending that the father-in-law of the respondent is in management of the suit property by letting out the same to the tenants and collecting rents.

5. By mutual consent, O.S.No.13 of 2005 was referred to Lok Adalat for amicable settlement under Section 20 of the Legal Services Authorities Act, on the basis of the compromise entered into between the parties. As per Clause 5 of the terms of compromise decree, the amount deposited in I.A.No.14 of 2006 in O.S.No.13 of 2005 by the fourth defendant in the suit, had been withdrawn by the appellant and remitted to the loan amount, which had been done by the appellant after the compromise decree.

6. As per the Memorandum of Compromise, the respondent-A.L.Jawaharlal has to pay a sum of Rs.42 lakhs to the appellant-A.L.Abul Kalam Azad, which amount was spent by the appellant in excess towards the construction/renovation of J.K.Mahal Kalyana Mandapam, which is described as Item No.3 of the suit schedule properties. According to the respondent, the said amount has to be paid to the appellant from and out of the sale proceeds of the suit properties for discharge of the loan amount to the Bank. Further, according to the respondent, though the appellant has initially co-operated for selling the item No.2 of the suit properties and a small portion adjacent to item No.3 of the properties, thereafter, the appellant has not co-operated for selling the properties. Hence, the respondent was not in a position to pay the sum of Rs.42 lakhs, whereas, according to the appellant, as per the Memorandum of http://www.judis.nic.in 7 Compromise, the payment of Rs.42 lakhs has nothing to do with the sale of the properties and the said amount has to be paid separately by the respondent from and out of his own pocket. Thus, there was a dispute with regard to the mode of payment of Rs.42 lakhs between the appellant and the respondent. Under such circumstances, various interlocutory applications were filed by the respective parties, which were disposed of on 03.08.2009 as detailed below:

(i) I.A.No.21 of 2007 in O.S.No.13 of 2005 is filed by the respondent- Jawaharlal, to direct the appellant-Abul Kalam Azad to deposit the rental amount of Rs.23,000/- per month that he was receiving in respect of the first suit schedule property, in the Court, till the final decree is passed. This application was party allowed, against which, C.R.P.No.4747 of 2011 and A.S.No.993 of 2009 are filed by the appellant-Abul Kalam Azad.

(ii) I.A.No.22 of 2007 in O.S.No.13 of 2005 is filed by the respondent- Jawaharlal, to appoint Advocate Commissioner and to pass final decree dividing the property as stated therein. This application was partly allowed, against which, C.R.P.No.4748 of 2011 is filed by the petitioner-Abul Kalam Azad.

(iii) I.A.No.30 of 2007 in O.S.No.13 of 2005 is filed by the appellant-Abul Kalam Azard, praying not to pass final decree in the suit till the respondent- Jawaharlal extinguishes the bank loan. This application was dismissed, against which, C.R.P.No.4093 of 2010 is filed by the petitioner-Abul Kalam Azad.

(iv) I.A.No.31 of 2007 in O.S.No.13 of 2005 is filed by the appellant-Abul Kalam Azad, praying not to pass final decree in the suit till the respondent- Jawaharlal pays Rs.42 lakhs to him as per the compromise entered. This http://www.judis.nic.in 8 application was dismissed, against which, C.R.P.No.4094 of 2010 is filed by the petitioner-Abul Kalam Azad.

7. In such a situation, when the above Civil Revision Petitions filed by the appellant-Abul Kalam Azad are pending, he filed O.S.No.3 of 2011 to declare that the award dated 16.06.2006 passed by the Lok Adalat based on the compromise, is illegal and null and void and to set aside the same and consequently, to decide the suit in O.S.No.13 of 2005 on merits. Pending O.S.No.3 of 2011, he filed I.A.No.49 of 2016 to stay further proceedings in O.S.No.3 of 2011, and this I.A. was dismissed on 26.10.2016, against which, C.R.P.No.453 of 2017 is filed by him. Thereafter, O.S.No.3 of 2011 was dismissed on 11.09.2017, against which, A.S.No.553 of 2017 is filed by him before this Court.

8. In the above said O.S.No.3 of 2011, apart from declaring the Lok Adalat Award, dated 16.06.2006, as null and void and to decide O.S.No.13 of 2005 on merits, the appellant-plaintiff-Abul Kalam Azad also prayed for passing preliminary decree for partition and for separate possession in respect of his 9/10 share over A-schedule property or alternatively over B-schedule property. The said A-schedule property in O.S.No.3 of 2011 is covered originally under O.S.No.18 of 2005, which was withdrawn by him, pursuant to the compromise. The said O.S.No.3 of 2011 was filed by the appellant-Abul Kalam Azad not only against the respondent-Jawaharlal (first defendant), but also against the wife of Jawaharlal, i.e. second defendant-Nijimunnisa Begum, the father-in-law of Jawaharlal, i.e. third defendant-Soukath Ali and also against the other family http://www.judis.nic.in 9 members.

9. The allegation in O.S.No.3 of 2011 is that the appellant-plaintiff-Abul Kalam Azad and the respondent-first defendant-Jawaharlal were struggling to meet their ends, and hence, they went to Saudi Arabia and were working there. At the time of leaving India, they did not own any immovable property. Since the appellant is educated, he got a job in a marketing company and was earning handsome salary. On the other hand, the respondent had got low key job and could not even maintain his family with his earnings and it is the appellant who was looking after his family needs also. Since the respondent and his family members are in cordial relationship with the appellant at that time, the appellant reposed his faith in the third defendant-Soukath Ali, who is the father-in-law of the first defendant (Jawaharlal) and sent money worth Lakhs of Rupees through the joint account and out of the same, third defendant had purchased immovable properties in the name of the appellant-plaintiff-Abul Kalam Azad and the first defendant-respondent-Jawaharlal jointly and the contribution to the joint account by the plaintiff-Abul Kalam Azad and first defendant-Jawaharlal was in the ratio of 90:10. It is further alleged in O.S.No.3 of 2011 that A-schedule property belonged to the mother (Musthirijan) of the second defendant-Nijimunnissa Begum. The plaintiff-Abul Kalam Azad and first defendant-Jawaharlal purchased immovable properties in India through the third defendant-Soukath Ali, who is the father of the second defendant-Nijimuniisa Begum and also the father-in-law of the first defendant-Jawaharlal, out of the said funds. One such property is A- schedule property, which was purchased jointly by the plaintiff-Abul Kalam Azad http://www.judis.nic.in 10 and the first defendant-Jawaharlal, through third defendant and the sale consideration was paid by the plaintiff-Abul Kalam Azad and the first defendant- Jawaharlal in the ratio 90:10. In order to save the stamp duty, the signature was obtained on 22.11.1989 from the said Musthirijan (who is mother of the second defendant and the mother-in-law of the first defendant) in favour of the second defendant in respect of A-schedule property. The property was developed by constructing first and second floors. Since the third defendant was in fiduciary capacity, as he is the maternal uncle of the plaintiff-Abul Kalam Azad and the first defendant-Jawaharlal and was acting like Power Agent for the plaintiff-Abul Kalam Azad and the first defendant-Jawaharlal, the plaintiff-Abul Kalam Azad had totally trusted and reposed unfettered faith in the first defendant-Jawaharlal and his family and he had no reason to doubt their intention or suspect any foul play.

10. It is further alleged in O.S.No.3 of 2011 that the settlement deed, dated 02.11.1989 in favour of the second defendant therein in respect of A- schedule property, is sham in nature and it was not intended to be acted upon. A-schedule property had been enjoyed and treated as joint property for all practical purposes by the plaintiff-Abul kalam Azad and the first defendant- Jawaharlal. But the first defendant-Jawaharlal, through his Power of Attorney, (i.e., third defendant who is the father-in law of the first defendant), had filed O.S.No.13 of 2005 for partition, with a view to grab the property by taking advantage of the settlement deed in favour of the second defendant and had excluded the A-schedule property. Only then, the plaintiff-Abul Kalam Azad came to know about the evil intention of the first defendant-Jawaharlal and the third http://www.judis.nic.in 11 defendant-Soukath Ali in cheating the plaintiff-Abul Kalam Azad of his due share in the A-schedule property, which was purchased out of the joint funds provided by the plaintiff-Abul Kalam Azad and the first defendant-Jawaharlal in the ratio of 90:10. The trust and unfettered faith reposed by the plaintiff-Abul Kalam Azad on the first defendant-Jawaharlal and the third defendant-Soukath Ali, had been misused. Hence, soon after appearing in O.S.No.13 of 2005, the plaintiff-Abul Kalam Azad filed O.S.No.18 of 2005 on the file of the Principal District Court, Perambalur, for partition in respect of A-schedule property, as the same was wantonly and willfully left out by the first defendant-Jawaharlal in O.S.No.13 of 2005 in order to deny the legitimate right of the plaintiff. It is further alleged that since all the money transactions for purchasing properties and also for developing them were done through the third defendant-Soukath Ali, he had misused and misappropriated the money sent by the plaintiff. Hence, the plaintiff-Abul Kalam Azad filed O.S.No.412 of 2005 for accounts. It is further alleged that within few months from the settlement deed, dated 22.11.1989, the second defendant had settled a portion of the A-schedule property in favour of the first defendant-Jawaharlal. Again in the year 1996, the second defendant, through her Power Agent, had sold the remaining portion of the A-schedule property to the first defendant.

11. It is further stated in O.S.No.3 of 2011 that the appellant was forced to sign in a compromise without his free consent. Based on the compromise, O.S.No.13 of 2005 was settled out of Court in the Lok Adalat. The entire terms of the compromise is one sided. Based on the compromise, the plaintiff-Abul Kalam http://www.judis.nic.in 12 Azad had not pressed the suits in O.S.No.18 of 2005 and O.S.No.412 of 2005. On the other hand, the first defendant-Jawaharlal had not acted as per the terms of the compromise. The entire compromise hinged on payment of Rs.42 lakhs by the first defendant-Jawaharlal to the plaintiff-Abul Kalam Azad. So far he had not paid a single penny. Since A-schedule property was invested in B-schedule property, the prayer in O.S.No.3 of 2011 was made in respect of A-schedule property, or alternatively, over the B-schedule property. For easy reference, the prayer in O.S.No.3 of 2011 is extracted hereunder:

(a) to declare the award passed by the Lok Adalat of Perambalur, based on the compromise dated 16.06.2006 as illegal, null and void and set aside the same as it was entered into under coercion, undue influence, without consensus of mind between parties and without jurisdiction and consequentially decide the suit in O.S.No.13 of 2005 on merit;

(b) to pass a preliminary decree for partition and for separate possession for the plaintiff's 9/10th share over the A-schedule property or alternatively over the B-schedule property;

(d) to award mesne profit for the same and if necessary through separate proceedings; and

(e) to award cost to the plaintiff from the defendants.

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12. In O.S.No.3 of 2011, the second defendant has filed written statement, which was adopted by defendants 1, 3 and 4, stating that the appellant and the respondent contributed equally in purchasing the properties and both of them have equal share in the properties. It is incorrect to state that the appellant is entitled to 90% and the respondent to 10%. It is also incorrect to state that the plaintiff-Abul Kalam Azad had signed the one-sided compromise. In the award, 10% had not been stated and it is also incorrect to state that only after paying Rs.42 lakhs, the properties have to be divided separately. As per the award, the properties standing in the joint name, have to be sold and from and out of the sale proceeds, the loan amount had to be first paid. Already in the suit filed by the respondent-Jawaharlal in O.S.No.13 of 2005, the Lok Adalat had passed a decree. Under such circumstances, the plaintiff-Abul Kalam Azad has filed the present suit, with a prayer to set aside the Lok Adalat award, which is not legally sustainable, and hence, the defendants 1 to 4 prayed to dismiss the suit in O.S.No.3 of 2011.

13. In O.S.No.3 of 2011, the plaintiff (appellant) Abul Kalam Azad was examined as P.W.1 and Exs.A-1 to 14 were marked. On the side of the defendants, D.W.1 Rajiya Begum and D.W.2 Soukath Ali, the father-in-law of the respondent-Jawaharlal (defendant) were examined and Exs.B-1 to B-11 were marked. On examination of oral and documentary evidence, the trial Court dismissed the suit in O.S.No.3 of 2011 holding that the appellant-plaintiff-Abul Kalam Azad failed to establish that he has a right over the A-schedule property. http://www.judis.nic.in 14 The trial Court also came to the conclusion that the plainitiff-Abul Kalam Azad is not entitled to the relief of declaration to set aside the Lok Adalat award. Challenging the same, A.S.No.553 of 2011 is filed before this Court.

14. Learned counsel for the appellant in all these cases submitted that the appellant and the respondent-Jawaharlal are brothers. They went to Saudi Arabia to eke out their livelihood. The appellant was employed as Sales Manager and the respondent was employed as Store Keeper. The respondent did not earn sufficiently to sustain himself. The appellant came to India and took over the management of the properties of both the appellant and the respondent, and as he was earning higher amount, his investment was also higher than that of the respondent. The salary certificate of the appellant is Ex.A-6 in O.S.No.3 of 2011. The commission voucher of the appellant was marked as Ex.A-7. The salary certificate of the respondent was marked as Ex.A-8. These documents will bear the testimony and they show that the salary of the appellant was far higher than that of the respondent. Learned counsel for the appellant further submitted that the respondent's salary is 1760 Riyals, equivalent to Rs.22,880/-. This meagre sum is insufficient for a person to live in Saudi Arabia on his own accommodation. The appellant and the respondent have contributed money for purchase of the properties. Item No.1 of the suit properties, was purchased through Soukath Ali, the maternal uncle of the appellant-Abul Kalam Azad and the respondent-Jawaharlal and he is the father-in-law of the respondent. Item No.1 of the suit properties in O.S.No.13 of 2005, was purchased in the name of the respondent-Jawaharlal. This was not known to the appellant and later on, http://www.judis.nic.in 15 when queried, the respondent gave a Power of Attorney in favour of Soukath Ali and he in turn registered a sale deed on 19.11.1997 in respect of the undivided half share in the name of the appellant.

15. Learned counsel for the appellant further submitted that item No.2 of the suit properties in O.S.No.13 of 2005, was purchased jointly in the name of the appellant and the respondent and it is a vacant site. The construction of item No.2 was started first, since item No.1 was purchased in the name of the respondent alone and on the Power of Attorney being questioned, he had transferred half share over the property. The construction of item No.1 of the suit properties, was done after registering the same in the name of the appellant. Subsequently, item No.3 was purchased in the name of the appellant and the respondent. In all the purchases made, the appellant had invested nearly 90% of the total cost of acquisition and the respondent paid only 10% or even below 10%. When the father-in-law of the respondent was not handling the job entrusted to him properly and siphoning off the money, the appellant came to India in the year 2001 and took charge of the construction work and also the ongoing project of the construction of the marriage hall in item No.3 of the suit properties, which was originally incomplete. The appellant has put all his efforts to complete the project. Knowing fully well the contribution made by the appellant and in order to profiteer the work done, the respondent acted mercilessly in seeking the Bank to sell the properties and have an Administrator appointed. On completion of the construction of the Kalyana Mandapam, the respondent-Jawaharlal, with ill-motive, has filed suit in O.S.No.13 of 2005 for http://www.judis.nic.in 16 partition. The appellant-Abul Kalam Azad also filed suit in O.S.No.18 of 2005 for partition in respect of the left out of the properties in O.S.No.13 of 2005. The properties had been purchased from and out of the major contribution of the appellant. The appellant also filed another suit in O.S.No.412 of 2005 for rendition of accounts against the father-in-law of the respondent. The parties have entered into a compromise and the suit in O.S.No.13 of 2005 was referred to Lok Adalat for amicable settlement under Section 20 of the Legal Services Authorities Act. As per the terms of the compromise, the appellant and the respondent had to discharge the dues to the Bank jointly by selling the properties and the respondent shall pay Rs.42 lakhs being the amount spent by the appellant in excess and on such payment, the properties are to be divided equally. The payment of Rs.42 lakhs is treated as an equaliser of shares. The compromise also speaks of joint management of all the properties. The suits in O.S.No.18 of 2005 and O.S.No.412 of 2005 were agreed to be withdrawn. Further, the parties to the contract should discharge the mortgage by selling the common properties.

16. Learned counsel for the appellant further contended that as per the compromise, the respondent has not come forward to pay the said sum of Rs.42 lakhs, whereas he denied such payment stating that as per the compromise, only by selling the properties, the amount has to be paid. In such circumstances, various interlocutory applications were filed and one of such is I.A.No.22 of 2007 in O.S.No.13 of 2005, which was filed to appoint Advocate Commissioner to effect division of the suit properties and to pass final decree. In this regard, http://www.judis.nic.in 17 learned counsel for the appellant submitted that the compromise did not declare the shares of the parties. However, the terms of the settlement state that based on the document(s), there shall be preliminary decree, but this nomenclature was not conclusive. While assessing the rights of the parties, what should be seen is the terms of the settlement and nothing more. Merely because the Clerk who had drafted the decree terms and shown the documents for passing preliminary decree, it will not assume such character. While assessing the document, the recitals in the document alone have a bearing and not the events that are alien to it. The document under Ex.A-1 is a compromise casting reciprocal obligations between the parties and failure to perform by any one of the essential features, will deprive them of enforcement.

17. Learned counsel for the appellant further submitted that the compromise decree cannot be treated as a preliminary decree. The Court below has appointed Advocate Commissioner in I.A.No.22 of 2007 in O.S.No.13 of 2005. In fine, the compromise decree is to be treated as a contract between the parties and the Court only affirms its seal of approval. The Court may not be empowered to change the contract or dilute the obligations and the Court may not modify or substitute the terms of the contract. In the present case, twin obligations were cast on the parties, and the first one is withdrawal of the suits filed by the appellant against the wife of the respondent and his father-in-law. The appellant performed his part of the contract and withdrew the suits as agreed upon. The parties should also co-operate to discharge the debts due to the Bank by selling the common properties. The parties joined together and sold http://www.judis.nic.in 18 the 2nd item of the property and it hardly fetched Rs.26,50,000/-. Another land adjoining the 3rd item, was sold for Rs.1,20,000/- and the respondent took Rs.80,000/- for himself. In all, the Bank was paid a sum of Rs.27,70,000/-. The debt due to the Bank was over Rs.70 lakhs. Without honouring the compromise, I.A.No.22 of 2007 in O.S.No.13 of 2005 was filed by the respondent for passing final decree, which is misconceived. The dues to the Bank were not discharged then. The appellant-Abul Kalam Azad cleared the Bank dues in 2013. Likewise, Rs.42 lakhs that should have been paid by the respondent-Jawaharlal from his pocket, remained unpaid till date and when he is at fault, it is not open for him to seek for passing final decree.

18. Learned counsel for the appellant further submitted that the Court ought to have seen that when the contract involves mutual obligation, the non- performing party cannot claim enforcement from a party who had performed his obligation. Further, under Section 52 of the Indian Contract Act, where the contract involves reciprocal promises, the same are to be performed in that order. In the present case, the respondent-Jawaharlal should have paid Rs.42 lakhs to the appellant-Abul Kalam Azad as per the contract. Having not paid this amount, it is not open for the respondent to enforce the compromise. In support of this contention, learned counsel for the appellant-Abul Kalam Azad relied on a decision of the Supreme Court reported in 1973 (3) SCC 376 (Chen Shen Ling Vs. Nand Kishore Jhajharia), wherein it has been held that when a decree imposes mutual obligations on both the appellant and respondent in such a way that the performance by one is conditional on the performance by the other and http://www.judis.nic.in 19 accordingly, no execution can be ordered, unless the party seeking execution not only offers to perform his part, but when objection was taken, satisfy the executing Court that he was in a position to do so. Learned counsel for the appellant-Abul Kalam Azad also relied on a decision reported in (1967) 80 LW 148 = 1967 (1) MLJ 252 (M.N.Subramania Mudaliar Vs. Shanmugam Chettiar), wherein it has been held that the Court has no jurisdiction even to extend the time contrary to the terms of the compromise.

19. Learned counsel for the appellant also relied upon a decision of the Supreme Court reported in 2015 (9) SCC 52 (P.R.Yelumalai Vs. N.M.Ravi) for the proposition that when the plaintiff had defaulted on time as well as the mode of payment, he is dis-entitiled from enforcing the compromise decree. Learned counsel for the appellant-Abul Kalam Azad also relied upon a decision of a Division Bench of this Court reported in ILR (Vol.38) Madras 959 (S.Sabapathy Pillay (died) and others (The Legal Representatives of the deceased appellant- plaintiff) Vs. Vanmahalinga Pillay and another), in which it was held that when the parties have not fulfilled the contract, they are legally dis-entitled from enforcing it. Learned counsel for the appellant further relied upon a decision of this Court reported in 1940 (2) MLJ 311 = 1940 (52) LW 336 (Mooriantakath Ammoo Vs. Matathankandy Vatakkayil Pokkan) wherein it has been held that when there is a decree based on an agreement between the parties, an essential term of that agreement embodied in the decree, cannot be changed by an act of the Court on the application of only one of the parties, but the consent of both parties to the original agreement would be necessary for its modification and the http://www.judis.nic.in 20 Court, after all, is doing nothing more than given judicial force to a contract and there is no basis for the decree other than the contract and it follows that the decree cannot be varied except by the consent of the contracting parties. This decision reported in 1940 (2) MLJ 311 = 1940 (52) LW 336 (Mooriantakath Ammoo Vs. Matathankandy Vatakkayil Pokkan), was followed by this Court in the subsequent decision reported in 1962 (1) MLJ 418 = 1961 (Vol.74) LW 773 (Bethanna Nadar Vs. M.Srinivasan and others).

20. Thus, learned counsel for the appellant submitted that obligation is cast upon the respondent to pay Rs.42 lakhs and without paying the same, he has filed I.A.No.22 of 2007 in O.S.No.13 of 2005 to pass final decree. Therefore, it is evident that a non-performing party cannot seek for enforcement of the compromise and the Court cannot substitute or add or modify the understanding between the parties.

21. Furthermore, in the compromise entered into on 16.06.2006, no reference is made to the terms of "preliminary decree". The power of the Lok Adalat is circumscribed by the nature of arrangement entered into between the parties. Lok Adalat on its own, cannot enlarge the scope of the compromise and term the arrangement as "preliminary decree". This is palpably against the judgment of the Supreme Court reported in 2003 (7) SCC 452 (Rachakonda Venkat Rao Vs. R.Satya Bai), wherein, the Apex Court held that in the agreement, the parties had accepted that they had been put in separate possession of the various immovable properties allotted to each group and the proceedings dated 13.07.1978 therein, according to the Supreme Court, leaves http://www.judis.nic.in 21 no scope for an argument that they were only by way of a preliminary decree and a final decree was yet to be passed.

22. Learned counsel for the appellant further submitted that the compromise entered into between the parties herein, cannot be treated as a preliminary decree, when the compromise dated 16.06.2006 does not speak of the understanding to be of preliminary decree in nature and the division of properties cannot be postponed at a later stage, but on the other hand, the compromise speaks of joint enjoyment of the properties. Further, in this case, the terms of settlement are conclusive between the parties and there is no scope for the respondent to file I.A.No.22 of 2007 in O.S.No.13 of 2005 to pass final decree.

23. Learned counsel for the appellant invited the attention of this Court to the provisions of the Legal Services Authorities Act and submitted that this Act empowers the Lok Adalat to persuade the parties to enter into a compromise and when such a compromise is reached, the Lok Adalat shall record the settlement and a decree is passed in terms of the understanding. Any compromise that is recorded is deemed to be final and binding on all the parties to the dispute and no appeal shall lie to any Court against the award of the Lok Adalat. The finality that is spoken to is one of enforcement or conclusiveness in the understanding that forms the basis for the award of the Lok Adalat. In reality, the proceedings of the Lok Adalat are enforceable per-se.

24. Learned counsel for the appellant further contended that the trial Court has committed error in entertaining the final decree proceedings, as the http://www.judis.nic.in 22 Award of the Lok Adalat is one of execution. But the final decree proceedings are not one of execution and it is only continuation of the suit seeking for division of properties by metes and bounds. In this case, the compromise that had been entered into between the parties, does not speak of such a situation whereby the party was called upon to file an application for passing final decree. The compromise that had been allegedly reached between the parties, did not quantify the shares of the plaintiff and the defendants, nor gave specific items of properties for them to enjoy. It only speaks of joint management after discharge of loan to the Bank and also with regard to payment of Rs.42 lakhs by the respondent-Jawaharlal to the appellant-Abul Kalam Azad. But without considering these aspects, the trial Court has partly allowed I.A.No.22 of 2007 in O.S.No.13 of 2005 and thereby, passed final decree appointing Advocate Commissioner to divide the properties.

25. In order to substantiate his contention that the appellant has contributed 90% towards the purchase of the properties, learned counsel invited the attention of this Court to the letter written by the respondent to the appellant, which was marked as Ex.A-14 before the trial Court and also the other letters, wherein the respondent had admitted that he was having loan and he was not in a position to pay the amount.

26. Learned counsel for the appellant further submitted that since the respondent has failed to perform his part of the contract by not paying Rs.42 lakhs, it necessitated the appellant-Abul Kalam Azad to institute the suit in O.S.No.3 of 2011. The compromise decree would not operate as res-judicata and http://www.judis.nic.in 23 at no point of time, the rights between the parties were adjudicated on merits. The suit in O.S.No.3 of 2011 was filed only on account of the failure on the part of the respondent to abide by the terms of the compromise decree, dated 16.06.2006. Without considering these aspects, the trial Court has dismissed the suit. For all the above reasons, learned counsel for the appellant prayed to set aside the dismissal of the suit in O.S.No.3 of 2011 and to allow these Civil Revision Petitions and Appeal Suits.

27. Countering the above submissions, learned Senior Counsel appearing for the respondent submitted that preliminary compromise decree came to be passed by the Lok Adalat with liberty to proceed further to effect partition of the remaining properties by initiating the final decree proceedings. Both the parties have put their respective signatures and the compromise was read over. Pursuant to the compromise dated 16.06.2006, the parties have jointly sold item No.2 of the suit properties and also sold a small portion adjacent to item No.3 of the suit properties. The sale proceeds have been paid to the State Bank of India towards discharge of the loan amount and the parties jointly paid certain money dues to the State Bank of India from and out of self-earned money and maximum part of the loan amount had been paid to the Bank in pursuance of the compromise decree. The appellant and the respondent have entered into an agreement on 24.08.2006 regarding the payment of Bank dues, which clearly reveals the bona-fide and acceptance of the compromise decree. Only a meagre amount to the tune of Rs.5,90,435/- was unpaid as on 18.10.2006 to the Bank. Hence, several requests were made to the appellant to perform the http://www.judis.nic.in 24 responsibilities in paying the remaining dues to the Bank by selling away some other portion of the properties, for which the appellant refused to co-operate in paying the remaining dues to the Bank, which caused the respondent to issue a legal notice, dated 18.10.2006 calling upon him to be ready to pay the remaining dues to the Bank before 31.10.2006 and also calling upon him to act as per the compromise decree. But the appellant refused to co-operate in paying the remaining dues to the Bank and gave a vague reply by asking the respondent to pay Rs.42 lakhs to him. As per the terms of the compromise, the appellant can take the amount from and out of the sale proceeds after paying the dues to the Bank and the respondent need not pay the said amount separately.

28. Learned Senior Counsel appearing for the respondent further submitted that since the appellant did not co-operate to sell away the remaining properties to discharge the remaining dues to the Bank, there is no question of fulfilment of the second condition of compromise that Rs.42 lakhs shall be paid. Hence, the respondent filed I.A.No.22 of 2007 in O.S.No.13 of 2005 to appoint an Advocate Commissioner to effect partition of the suit properties equally by metes and bounds and to pass final decree and allot a portion of the suit properties to the value of Rs.42 lakhs to the appellant towards the cost of the construction of the Kalyana Mandapam. In the said I.A.No.22 of 2007, the appellant filed counter affidavit, thereby, he clearly admitted the execution of the compromise decree and also admitted that the decree of Lok Adalat is only preliminary decree and he took a stand that the final decree could be passed only after fulfilment of the terms of Clauses 3 and 5 of the compromise. Further, http://www.judis.nic.in 25 the amount that was deposited in I.A.No.14 of 2006 in O.S.No.13 of 2005 by the fourth defendant in the suit, had been withdrawn by the appellant and it had been remitted to the loan amount after the compromise decree. In fact, the suits filed by the appellant herein in O.S.No.18 of 2005 and O.S.No.412 of 2005, were withdrawn by the appellant subsequent to the compromise decree. Thus, major part of the performance of compromise decree had been complied with by both the parties in terms of the compromise. Hence, the appellant cannot question the validity of the compromise decree.

29. Learned Senior Counsel appearing for the respondent invited the attention of this Court to the affidavit filed by the appellant in the connected application in I.A.No.30 of 2007 in O.S.No.13 of 2005 praying not to pass final decree in the suit till the respondent extinguishes the bank loan and also the affidavit filed by him in I.A.No.31 of 2007 in O.S.No.13 of 2005 praying not to pass final decree in the suit till the respondent pays Rs.42 lakhs to him as per the compromise entered. Learned Senior Counsel appearing for the respondent submitted that in the above said affidavits, the appellant admitted that the award of the Lok Adalat is only a preliminary decree. Now, the appellant is keeping silent for a period of three years and enjoying the mesne profits and filed A.S.No.993 of 2009 before this Court. Further, after a lapse of five years from the date of the Award of the Lok Adalat, dated 16.06.2006, the appellant filed fresh suit in O.S.No.3 of 2011 only with ulterior motive to drag on the proceedings, which is barred by limitation under Section 3 and Article 59 of the Limitation Act. Further, as per Section 96(3) and Order 23 Rule 3-A of the Civil http://www.judis.nic.in 26 Procedure Code, no appeal or suit is maintainable from a decree passed by the consent of the parties (compromise decree). Learned Senior Counsel appearing for the respondent-Jawaharlal further invited the attention of this Court to Section 21 of the Legal Services Authorities Act and made detailed submissions to show that every award of the Lok Adalat shall be deemed to be a decree of a Civil Court. Hence, the Lok Adalat award/decree is executable and the same cannot be set aside by filing another suit.

30. Learned Senior Counsel appearing for the respondent further contended that the appellant filed another suit in O.S.No.3 of 2011 in respect of some other property vexatiously after the limitation period of three years, in which the respondent-Jawaharlal filed written statement and the trial also commenced. In the said suit, while the witness of D.W.1 was examined, the appellant-Abul Kalam Azad filed an application under Section 10 of the CPC in I.A.No.49 of 2016 in O.S.No.3 of 2011 and by order dated 26.10.2016, the said I.A.No.49 of 2016 was dismissed, against which, the appellant filed C.R.P.No.453 of 2017 before this Court. Since there was no stay in the said C.R.P., the trial was over in the abovesaid suit in O.S.No.3 of 2011 and it was dismissed on 11.09.2017, as against which, A.S.No.553 of 2017 is filed by the appellant before this Court, which is not maintainable either in law or on facts. Even the appellant himself admitted in the counter affidavit filed in I.A.No.22 of 2017 in O.S.No.13 of 2005 that he entered into a compromise on 16.06.2006. The appellant is now enjoying the valuable properties and earning more than Rs.5 lakhs from the Kalyana Mandapam per month for the past 12 years, i.e. from the date of http://www.judis.nic.in 27 preliminary decree (Lok Adalat Award), dated 16.06.2006. If the respondent is permitted to administer the properties for a further period of 12 years like the appellant's enjoyment, certainly the said amount will be refunded to the appellant even from and out of the income arrived at from the properties.

31. In sum and substance, learned Senior Counsel appearing for the respondent submitted that the appellant did not make any appeal against the preliminary decree (Lok Adalat Award) and he could not raise objection in filing the final decree application by the respondent.

32. In support of his contentions, learned Senior Counsel appearing for the respondent relied on the decisions of the Supreme Court reported in 2005 (4) CTC 30 (SC) (Thomas.P.T. Vs. Thomas Job) and 2017 (5) CTC 775 (SC) (Bharvagi Constructions Vs. Kothakapu Muthyam Reddy) for the proposition that the award passed by the Lok Adalat is final and becomes executable as if the decree of the Civil Court. Challenge to the Award of Lok Adalat can be done only by filing Writ Petition under Article 226 of the Constitution of India and/or petition under Article 227 of the Constitution of India. Hence, learned Senior Counsel appearing for the respondent submitted that absolutely, there is no merit in all these cases and prayed for dismissal of the same.

33. Keeping in mind the above submissions made by the learned counsel appearing for the parties, we have considered the same and also carefully perused the materials available on record.

34. Since the facts relate to passing of the Lok Adalat Award/decree, dated 16.06.2006 in O.S.No.13 of 2005, and as the entire gamut of the case http://www.judis.nic.in 28 hinges upon the said Lok Adalat Award/decree and as the facts are inter-related to each other, it is sufficient that these cases are being disposed of by discussing the facts relating to passing of Lok Adalat Award alone. Further, as we have dealt with the factual matrix of the cases in detail, it would not be necessary for us to repeat the same any further. However, certain facts which are germane and necessary for the purpose of disposal of these cases alone are referred.

35. It is the case of the appellant-Abul Kalam Azad that himself and the respondent-Jawaharlal are brothers. They went to Saudi Arabia to eke out their livelihood. The appellant being an educated person, was employed as Sales Manager, whereas the respondent was working as Store Keeper. The appellant earned higher than the respondent and the appellant contributed 90% of the amount of salary to purchase the properties, whereas the respondent contributed only 10%. In such a situation, the respondent filed O.S.No.13 of 2005 to pass preliminary decree for partition of the suit properties and to render accounts. The appellant has also filed a suit in O.S.No.18 of 2005 in respect of the property which was not included in O.S.No.13 of 2005, against the respondent (first defendant) and his wife Nijimunnissa Begum (second defendant) stating that he is having 90% share in the suit property(ies). That apart, the appellant has also filed O.S.No.412 of 2005 as against the father of the second defendant- Nijumunnissa Begum, i.e Soukath Ali, who is the father-in-law of the respondent, for accounts, since the said Soukath Ali was in management of the suit properties by letting out the same to tenants and collecting rents. While so, a compromise was entered into between the parties in O.S.No.13 of 2005 and http://www.judis.nic.in 29 based on the same, the Lok Adalat passed an Award/decree on 16.06.2006. As per the terms of the compromise, the respondent-Jawaharlal has to pay Rs.42 lakhs to the appellant-Abul Kalam Azad, and on such payment, the rest of the properties are to be divided equally. Further, as per the terms of compromise, the properties have to be sold for discharging the Bank loan and the excess amount that has been spent by the appellant to the extent of Rs.42 lakhs, had to be paid to him by the respondent and the suits in O.S.Nos.18 and 421 of 2005 were agreed to be withdrawn by the appellant. The following are the terms of the compromise, which was signed by the plaintiff-Jawaharlal and the first defendant-Abul Kalam Azad and their respective counsels:

@cgathjpfs; jug;gpy; rp/gp/rp/ Mh;lh; 23 U:y; 1d;go jhf;fy; bra;j rkhjhd kD 1/ cgathjpfSk; rnfhjuh;fs;. jhth brhj;Jf;fs;

cgathjpfSf;fhft[k; bghJtpy; th';fg;gl;lJ vd;W Vw;Wf;bfhs;sg;gLfpwJ/ 2/ jhth brhj;J 3tJ mapl;lj;jpy; jpUkz kz;lgk;

fl;Ltjw;fhf fldhf bgw;w tifapy; bguk;gY}h; ghuj !;nll;

t';fpapy; epYitapy; cs;s fld; KGtJk; cgathjpfshy;

bghJtpy; fl;o jPh;f;f ntz;oaJ/ nkw;go t';fp flid jtph;j;J.

1?k; gpujpthjp V/vy;/mg[y; fyhk; Mrhj; jdf;F jdpg;gl;l Kiwapy; ghj;jpag;gl;l brhj;Jf;fis tpw;Wk; kw;Wk;

rpyhplk; jdpg;gl;l Kiwapy; fldhf bgw;Wk; nkw;go jpUkz kz;lgj;ij fl;o g{h;j;jp bra;Js;shh;/ me;j tifapy; 1?k;

gpujpthjpahy; bkhj;jk; bryt[ bra;ag;gl;l bjhif U:gha;

42.00.000-? (U:gha; ehw;gj;jp ,uz;L yl;rk; kl;Lk;) vd;W http://www.judis.nic.in 30 cgathjpfshy; xg;g[f; bfhs;sg;gl;L Vw;Wf;bfhs;sg;gLfpwJ/ 3/ ,e;j fhy NH;epiyapy; jhth brhj;Jf;fshd mapl;lk;

1. 2. 3 kw;Wk; 3tJ mapl;lj;jpYs;s jpUkz kz;lgj;jpw;F mUfpy; cs;s fhyp kidfs; Mfpatw;wpy; ve;j brhj;J Kjypy; tpiy nghFnkh mij clnd tpiuthf cgathjpfs; Tl;lhf tpw;W bguk;gY}h; ghuj !;nll; t';fp flid KGtJkhf Kjypy; fl;o jPh;j;Jk;. ,uz;lhtjhf 1?k; gpujpthjpahy; nkw;fz;lthW bryt[ bra;ag;gl;l U:gha; 42.00.000-? (U:gha; ehw;gj;jp ,uz;L yl;rk; kl;Lk;)I 1?tJ gpujpthjpf;F brYj;jp jPh;j;J tpl ntz;oaJ/ mjd; gpd;dh; v";rpa brhj;ij kl;Lk; xU khjj;jpw;Fs; rhprkkhf cgathjpfs; ghfk; gphpj;Jf;bfhs;s ntz;oaJ/ nkw;fz;l fld;fs; jPh;f;fg;gl;l gpwF cs;s v";rpa brhj;Jf;fspd; eph;thfk; thjp kw;Wk; 1k; gpujpthjp Mfpnahhplk; Tl;lhf ,Uf;f ntz;oaJ/ 4/ bguk;gY}h; khtl;l ePjpkd;wj;jpy; epYitapy;

cs;s X/v!;/vz;/18-2005 tHf;fpy; fz;l brhj;J ,e;j tHf;fpd; thjpf;Fk;. mtuJ kidtp e$pKd;dprh ngfj;jpw;Fk;

ghj;jpag;gl;l jdpg;gl;l brhj;J vd;W 1?k; gpujpthjp Vw;Wf;bfhs;fpwhh;/ 5/ ,e;j tHf;fpy; epYitapYs;s I/V/vz;/14-2006?y;

4?k; gpujpthjpahy; ePjpkd;wj;jpy; brYj;jg;gl;L epYitapYs;s bjhif kw;Wk; jhth brhj;J 1tJ mapl;lj;jpd; rhtpia 1?k; gpujpthjp ePjpkd;wj;jpypUe;J bgw;W bjhifia kl;Lk; 6?k; gpujpthjp t';fp flDf;F brYj;j ntz;oaJ/ vg;/V/,urPj; vd;gthplk; 1k; gpujpthjp bra;J bfhz;l fpiua xg;ge;j gj;jpuk; rk;ke;jg;gl;l gpur;ridiaa[k; 1k; http://www.judis.nic.in 31 gpujpthjpna jPh;j;Jf;bfhs;s ntz;oaJ/ mjw;Fk; thjpf;Fk; ve;j rk;ge;jKk; ,y;iy/ 6/ jhth brhj;J 2tJ mapl;lj;jpy; thliff;F cs;s 3k;

gpujpthjp bfhLj;Js;s ml;thd;!; bjhif U:gha; 1.50.000-? (U:gha; xU yl;rj;J Ik;gjhapuk; kl;Lk;) ,dpnky; tuf;Toa bghJ tUkhdj;jpy; ,Ue;J vLj;J me;j brhj;J ahh; ghfj;jpw;F gphpfpwnjh mth; trk; bfhLf;fg;gl ntz;oaJ/ 7/ 1k; gpujpthjpahy; bguk;gY}h; khtl;l ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;l X/v!;/ek;gh;/18-2005 tHf;fpid ,e;j tHf;fpd; 1k; gpujpthjp thg!; bgw;Wf;bfhs;s ntz;oaJ/ mJ bghWj;J xUtUf;bfhUth; vt;tpj bryt[j;

bjhifa[k; bfhLf;f ntz;oajpy;iy/ nkYk; 1k; gpjupthjpahy; bguk;gY}h; khtl;l chpikapay; ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;l X/v!;/ek;gh; 412-2005 tHf;fpid ,e;j tHf;fpd; 1k; gpujpthjp thg!; bgw;Wf;bfhs;s ntz;oaJ/ mjw;fhft[k; xUtUf;bfhUth; vt;tpj bryt[j; bjhifa[k; bfhLf;f ntz;oajpy;iy vd;W Vw;Wf;bfhs;sg;gLfpwJ/ 8/ jhth brhj;Jf;fspd; kj;jpafhy tUk;goia bghWj;J cgathjpfSf;Fs; vt;tpj nfhhpf;ifa[k; ,y;iy/ Mifahy; fdk; nfhh;;l;lhuth;fs; jat[ bra;J nkw;fz;l rkhjhd xg;ge;jj;jpd; mog;gilapy; xU xj;jpirt[ jPh;g;ghiz gpwg;gpf;ft[k;. kw;Wk; ,e;j tHf;fpw;fz;l 2 Kjy; 8 tiua[s;s gpujpthjpfis ePf;fwt[ bra;Jk; cj;jput[ gpwg;gpf;f ntz;Lkha; gpuhh;j;jpf;fpnwhk;/ brhj;J tpguk;

1/ bguk;gY}h; khtl;lk;. mhpaY}h; gjpt[ khtl;lk;.

bguk;gY}h; Jizg;gjpt[ khtl;lk;. bguk;gY}h; ej;jk; rh;nt http://www.judis.nic.in 32 vz;/289-1 Vf;fh;; 0/69y; bguk;gY}h; jpUr;rp nuhLf;F bjw;F. bjd;tly; tz;og;ghijf;F fpHf;F. Ry;jhd; fl;olj;jpw;Fk; Jiurhkp fl;olj;jpw;Fk; nkw;F. Jiurhkp kidf;Fk; tlf;F/ ,jw;Fl;gl;l 24'x21', 23'x11-

1/2,20'/33'x32'/31',13'/18'x15' mst[fSs;s mokida[k; mjpy; cs;s mLf;Fkho bfl;o bkj;ij fl;olk; (rpl;o ghg[ bjUtpy; cs;s n$/n$/fhk;g;sf;!; fl;olk;)/ 2/ bguk;gY}h; khtl;lk;. mhpaY}h; gjpt[ khtl;lk;.

bguk;gY}h; Jizg;gjpt[ khtl;lk; bguk;gY}h; mad;g[";ir rh;nt vz;/501-6 Vf;fh; 1/21y; bguk;gY}h; jpUr;rp nuhl;Lf;Fk; bjw;F. tRkjp kidf;F fpHf;F. gHdpKj;J tPl;Lf;Fk; nkw;F. rpyk;ghap kidf;Fk; tlf;F ,jw;Fl;gl;l 34'x40', 20'x80' mst[fSf;F mokida[k; mjpy; cs;s mLf;Fkho fl;olk; (bt';fnlrg[uj;jpy; cs;s n$/nf/fhk;g;sf;!; fl;olk;)/ 3/ bguk;gY}h; khtl;lk;. mhpaY}h; gjpt[ khtl;lk;.

bguk;gY}h; Jizg;gjpt[ khtl;lk;. bguk;gY}h; bjw;F rh;nt vz;fs; 144-7gp2 bcwf; 0/16/5. 144-8gp bcwf; 0/15/0. 144-6gp bcwf; 0/16/5. 144/6V2 bcwf; 0/08/5. 143-

2gp2V bcwf; 0/01/0 144-6V1gp. bcwf; 0/02/0. 144-

7gp1gp bcwf; 0/05/0 Mfpa epy';fSk;. mjpy; cs;s n$/n$/kcwhy; vd;w jpUkz kz;lgk; kw;Wk; fhyp ,lk; cl;gl/ ehd;bfy;iy jpUr;rp bkapd; nuhl;ow;Fk;. bu';fk;khs; kw;Wk;

md;dk;khs; tifawh epyj;jpw;Fk; bjw;F. fPH;g[wk; cs;s bjd;tly; bghJ ghijf;F nkw;F. (kjdnfhghy; Rthkp http://www.judis.nic.in 33 epyj;jpw;Fk;) muR tPl;L thhpa epyj;jpw;Fk; tlf;F.

ey;yk;khs; epyj;jpw;Fk;. nky;g[wk; cs;s bjd;tly; bghJg; ghijf;Fk; fpHf;F. ,jw;Fl;gl;l bkhj;jk; bcwf; 0/64/5 epyk;/@

36. Based on the above terms of compromise entered into between the parties, the Court below, in O.S.Nos.13 of 2005 and 18 of 2005, by order dated 16.06.2006, has recorded the said terms of compromise and the terms of settlement were recorded by the Court as follows:

"Settlement Memo Type of case: Pending Category of case:

O.S.No.13 of 2005:

if pending, Name of the Court: District Court at Perambalur.

Dispute in brief: Suit for partition and accounts We, that is Thiru.A.L.Jawaharlal, plaintiff and Thiru.A.L.Abul Kalam Azad and 7 others, defendants, in the above said case has arrived at the compromise to settle the matter as follows:

Terms of Settlement (1) As stated in the compromise petition (copy attached) http://www.judis.nic.in (2) The parties have filed the compromise 34 memo. It is read over and explained to the parties. Compromise memo recorded. A preliminary decree is passed in terms of compromise memo.

(3) A copy of the compromise memo to be furnished to the parties along with the order.

(4) Final decree will be passed later. Court fee will be refunded as per rules. The terms of compromise shall form part of this order. Valuation of suit:Rs.1,20,04,000/-.

(5) D2 to D8 are exonerated."

We have arrived at settlement terms willingly before the Lok Adalat held on 16.06.2006 at Perambalur. No coercion or force is applied to arrive at settlement. This case may be disposed of, as settled accordingly.

Dated this 16th day of June, 2006.

Place: Perambalur Signature of the plaintiff Signature of the first defendant Signature of the Advocate Signature of the for the plaintiff Advocate for the first defendant AWARD

The matter is amicably settled as above before the Lok Adalat held on 16.06.2006 at Perambalur, before the panel consisting of

1) Head of the panel (Rt./Acting Judge) S.Krishnamoorthy, Retd. Judge

2) First panel member P.Dhanaraj

3) Second panel member A.Palanimuthu We pass this award in terms of above settlement Signature of

1. Head of the panel

2. First panel member http://www.judis.nic.in 35

3. Second panel member"

Seal of the Authority"

"Settlement Memo Type of case: Pending Category of case:

O.S.No.18 of 2005:

if pending, Name of the Court: District Court at Perambalur.

A.L.Abul Kalam Azad .. Plaintiff Versus A.L.Jawaharlal and another .. Defendants May it plese your Honour: Dispute in brief: Suit for partition

We, that is Thiru.A.L.Abul Kalam Azad, plaintiff and Thiru.A.L.Jawaharlal and another, defendants, in the above said case has arrived at the compromise to settle the matter as follows:

Terms of Settlement (1) The plaintiff filed a memo as settled out of Court. (2) The suit may be dismissed as settled out of Court.

Valuation of suit: Rs.16,20,000/-

(e) Suit is dismissed as settled out of Court. Court fee to be refunded as per rules.

http://www.judis.nic.in 36 Dated this 16th day of June, 2006.

Place: Perambalur Signature of the plaintiff Signature of the defendants Signature of the Advocate Signature of the for the plaintiff Advocate for the defendants AWARD

The matter is amicably settled as above before the Lok Adalat held on 16.06.2006 at Perambalur, before the panel consisting of

1) Head of the panel (Rt./Acting Judge) S.Krishnamoorthy, Retd. Judge

2) First panel member P.Dhanaraj

3) Second panel member A.Palanimuthu We pass this award in terms of above settlement Signature of

1. Head of the panel

2. First panel member

3. Second panel member"

Seal of the Authority"

37. According to the respondent-Jawaharlal, he has to co-operate with the appellant-Abul Kalam Azad to sell away the suit properties and from and out of the sale proceeds, they have to discharge the dues to the Bank. According to the respondent, the suit schedule properties covered in O.S.No.13 of 2005 are the joint properties of the appellant and the respondent and it was agreed that http://www.judis.nic.in 37 the appellant had spent Rs.42 lakhs towards the construction/renovation of J.K.Mahal Kalyana Mandapam, which is described as item No.3 of the suit schedule properties in O.S.No.13 of 2005. Hence, the amount availed from the State Bank of India for the purpose of construction of the Kalyana Mandapam, has to be discharged by selling the joint properties. Further, according to the respondent, the appellant is entitled to reimburse the expenses incurred at Rs.42 lakhs from and out of the sale proceeds of the joint properties, which was spent from and out of his pocket. According to the respondent, though initially the appellant has co-operated to sell the second item of the suit schedule properties, some of the properties are adjacent to schedule item No.3, and thereafter, the appellant did not co-operate for selling the other joint properties, since it was agreed as per the compromise to pay Rs.42 lakhs from and out of the sale proceeds and due to non-co-operation of the appellant, the respondent was not in a position to pay the said Rs.42 lakhs. Under such circumstances, the respondent-Jawaharlal was left with no other alternative except to file applications in I.A.Nos.21 and 22 of 2007 in O.S.No.13 of 2005 to pass final decree. Since the Lok Adalat Award/decree is a preliminary decree, he has filed the said I.A.Nos.21 and 22 of 2007 in O.S.No.13 of 2005 to appoint Advocate Commissioner and to pass final decree by dividing the properties, since the Lok Adalat Award/decree was to be treated as preliminary decree.

38. Per contra, it is the submission of the learned counsel for the appellant that it is incorrect to state that as per the compromise, Rs.42 lakhs is to be paid by the respondent to the appellant from and out of the sale proceeds after http://www.judis.nic.in 38 selling the suit schedule property(ies). In fact, the payment of Rs.42 lakhs has nothing to do with the sale of the suit schedule property(ies). As per the Lok Adalat Award, the joint properties have to be sold only for the purpose of discharging the Bank loan amount. In this regard, it is submitted that the respondent joined with the appellant to sell the suit second item of the properties along with the adjoining land, and it hardly fetched Rs.26,50,000/-. Another land adjoining the 3rd item, was sold for Rs.1,20,000/- and the respondent-Jawaharlal took Rs.80,000/- for himself. In all, the Bank was paid a sum of Rs.27,70,000/-. The debt due to the Bank was over Rs.70 lakhs. Without honouring the compromise, I.A.No.22 of 2007 in O.S.No.13 of 2005 was filed by the respondent for passing final decree, which is misconceived. The dues to the Bank were not discharged then. The appellant cleared the Bank dues in 2013. Likewise, Rs.42 lakhs that should have been paid by the respondent-Jawaharlal from his pocket, remained unpaid till date and when he is at fault, it is not open for the respondent to seek for passing final decree, and therefore, I.A.Nos.21 and 22 of 2007 filed, are untenable and legally, such applications could not have been filed at all and therefore, the appellant-Abul Kalam Azad has filed I.A.Nos.30 and 31 of 2007 in O.S.No.13 of 2005 not to pass final decree in the suit till the respondent extinguishes the Bank loan and till the respondent pays Rs.42 lakhs to him as per the compromise entered into between them.

39. Moreover, the Award of the Lok Adalat cannot be treated as preliminary decree, especially when the compromise decree dated 16.06.2006 does not speak of the understanding of the decree as preliminary decree in http://www.judis.nic.in 39 nature and postponing the decree at a later stage; on the other hand, it speaks of joint enjoyment of the properties. Hence, the appellant-Abul Kalam Azad filed I.A.Nos.30 and 31 of 2007 praying not to pass final decree in the suit till the respondent extinguishes the Bank loan and pays Rs.42 lakhs to him as per the compromise entered. Thereafter, the appellant filed O.S.No.3 of 2011 against the respondent and his wife, and others, to declare the Lok Adalat Award/decree null and void and to pass preliminary decree and final decree in respect of the suit properties therein. It is the case of the appellant that the said O.S.No.3 of 2011 was filed to set aside the Award of the Lok Adalat and for partition of the properties. The A-schedule property therein is the property covered under O.S.No.18 of 2005, which was withdrawn by the appellant pursuant to the compromise decree. B-schedule property was purchased out of the sale proceeds of the A-schedule property.

40. It is the further case of the appellant in O.S.No.3 of 2011 that the first defendant therein, namely the respondent-Jawaharlal has not acted as per the terms of compromise decree and the entire compromise hinged on payment of Rs.42 lakhs by the first defendant therein, namely the respondent-Jawaharlal to the appellant/plaintiff/Abul Kalam Azad and so far, he has not paid even a single penny. Soon after the compromise, the respondent filed final decree petition seeking to divide the properties by appointing Advocate Commissioner, against which, appeal and present revision petitions are filed. This shows that the Award passed by the Lok Adalat based on the compromise, lacks consensus-ad-idem. In the absence of consensus-ad-idem between the parties, the compromise entered http://www.judis.nic.in 40 into between the parties is void and the terms of the compromise are only agreement between the parties. Thus, the appellant-Abul Kalam Azad sought for declaring the Lok Adalat Award/decree as null and void and also prayed to pass preliminary decree for partition and possession of 9/10 share over A-schedule property or in the alternative, over the B-schedule property and also to pass final decree.

41. In view of the above submissions, first we have to decide as to whether the Award/Memorandum of Compromise gives a meaning that the sum of Rs.42 lakhs had to be paid by the respondent from and out of the sale proceeds of the joint properties, as alleged by the appellant, or independently, irrespective of the sale proceeds. It is useful to again extract Clause 3 of the terms of compromise as follows:

3/ ,e;j fhy NH;epiyapy; jhth brhj;Jf;fshd mapl;lk;

1. 2. 3 kw;Wk; 3tJ mapl;lj;jpYs;s jpUkz kz;lgj;jpw;F mUfpy; cs;s fhyp kidfs; Mfpatw;wpy; ve;j brhj;J Kjypy;

tpiy nghFnkh mij clnd tpiuthf cgathjpfs; Tl;lhf tpw;W bguk;gY}h; ghuj !;nll; t';fp flid KGtJkhf Kjypy; fl;o jPh;j;Jk;. ,uz;lhtjhf 1?k; gpujpthjpahy; nkw;fz;lthW bryt[ bra;ag;gl;l U:gha; 42.00.000-? (U:gha; ehw;gj;jp ,uz;L yl;rk; kl;Lk;)I 1?tJ gpujpthjpf;F brYj;jp jPh;j;J tpl ntz;oaJ/ mjd; gpd;dh; v";rpa brhj;ij kl;Lk; xU khjj;jpw;Fs; rhprkkhf cgathjpfs; ghfk; gphpj;Jf;bfhs;s ntz;oaJ/ nkw;fz;l fld;fs; jPh;f;fg;gl;l gpwF cs;s v";rpa brhj;Jf;fspd; eph;thfk; thjp kw;Wk; 1k; gpujpthjp Mfpnahhplk; Tl;lhf ,Uf;f ntz;oaJ/ http://www.judis.nic.in 41 Further, it is also stated regarding the understanding of the compromise by the parties as follows:

@eh';fs; ,e;j rkhjhd cld;gof;ifapy; Fwpg;gpl;Ls;s midj;J c&uj;Jf;fisa[k; goj;J ghh;j;J bjhpe;Jbfhz;nlhk;/ mjpy; Twg;gl;Ls;s tptu';fs; midj;ija[k; v';fSf;F bjspthf g[hpe;Jbfhz;nlhk; vd;gij kdg;g{h;tkhf xg;g[f;bfhs;fpnwhk;/@

42. On a reading of the above Clause 3 of the terms of compromise entered into before the Lok Adalat, it gives a meaning that the property(ies) would go for sale first, and thereafter, from the sale proceeds, the loan amount of the Bank had to be discharged, and thereafter, Rs.42 lakhs spent by the appellant-Abul Kalam Azad, had to be paid by the respondent-Jawaharlal, and therefore, the rest properties had to be divided equally. Absolutely, the Lok Adalat Award did not state anything that the respondent would pay the amount to the appellant independently irrespective of the sale of the property(ies). Had the intention been to pay the amount independently, it would have been stated specifically in the terms of compromise, whereas in the Memorandum of Compromise, first it speaks about only the sale of the property(ies), and thereafter, it speaks about the payment of loan amount to the Bank and thirdly, about payment of Rs.42 lakhs to the appellant by the respondent.

43. Now, it is the grievance of the respondent-Jawaharlal that though the http://www.judis.nic.in 42 appellant-Abul Kalam Azad initially co-operated for the sale of item No.2 of the suit properties and adjacent/adjoining property(ies), thereafter the appellant has not co-operated to sell the remaining property(ies) to discharge the amount due to the Bank, and therefore, the abovesaid Rs.42 lakhs may be paid after discharge of the Bank loan. In those circumstances, left with no other alternative, the respondent filed I.A.Nos.21 and 22 of 2007 in O.S.No.13 of 2005 respectively praying to direct the appellant to deposit the rental amount till the final decree is passed and to appoint Advocate Commissioner and pass final decree. The said final decree has to be passed by appointing Advocate Commissioner to effect partition of the suit properties equally by metes and bounds and after allowing a portion of the suit property to the value of Rs.42 lakhs to the appellant towards the construction of Kalyana Mandapam. In fact, in I.A.No.21 of 2007, the appellant filed counter affidavit and clearly admitted the execution of compromise and the decree passed by the Lok Adalat, which is the preliminary decree and prayed that final decree be passed only after fulfilment of Clause 3 therein.

44. Since the appellant himself did not co-operate to sell the property, as stated earlier, left with no other alternative, the respondent-Jawaharlal filed I.A.Nos.21 and 22 of 2007, which have been resisted by the appellant by filing counter affidavit, in and by which the appellant also admitted the passing of preliminary decree by the Lok Adalat. Further, as per Clause 5 of the terms of compromise, the amount deposited in I.A.No.14 of 2006 has to be withdrawn by the appellant and he has been permitted to discharge the loan amount which has http://www.judis.nic.in 43 been done by him after the compromise decree. The parties have understood the contents of compromise and have also signed in the compromise and the same were read over to them. Therefore, absolutely we do not any infirmity in partly allowing the application for appointment of Advocate Commissioner in I.A.No.22 of 2007 in O.S.No.13 of 2005, against which, C.R.P.No.4748 of 2011 is filed by the appellant-Abul Kalam Azad.

45. Insofar as O.S.No.3 of 2011 is concerned, the consistent case of the appellant-Abul Kalam Azad is that he had contributed 90% for the purchase and development of the property(ies), and therefore, his brother, the respondent- Jawaharlal and Sowkath Ali, the father-in-law of the respondent, are not entitled to half share and if at all, they are entitled only to 10% share. While so, during the course of suit proceedings, by mutual consent of both parties, the suit in O.S.No.13 of 2005 was referred to Lok Adalat for amicable settlement under Section 20 of the Legal Services Authorities Act, and the parties voluntarily entered into compromise on 16.06.2006 and accordingly, Award was passed by the Lok Adalat in O.S.No.13 of 2005 with connected suit in O.S.No.18 of 2005. Therefore, entire dispute arose only after passing of Award by Lok Adalat. Hence, the appellant-Abul Kalam Azad filed O.S.No.3 of 2011 to set aside the award of Lok Adalat, dated 16.06.2006 and also for partition of suit properties. 'A' schedule property in O.S.No.3 of 2011 is the property which was covered in O.S.No.18 of 2005, which suit was withdrawn by the appellant pursuant to the Lok Adalat Award. 'B' schedule property in O.S.No.3 of 2011 was purchased from the sale proceeds of A-schedule property. Therefore, suit in O.S.No.3 of 2011 http://www.judis.nic.in 44 mainly revolves upon the Lok Adalat/Decree.

46. Pursuant to the above compromise decree, respondent- Jawaharlal/plaintiff who filed O.S.No.13 of 2005, should co-operate to discharge the dues of Bank by selling common property(ies). Accordingly, respondent joined the appellant-Abul Kalam Azad to sell second item of suit properties in O.S.No.13 of 2005. It hardly fetched Rs.26,50,000/-. Another land adjoining third item of suit properties, was sold for Rs.1,20,00,000/- and plaintiff took Rs.80,000/- for himself. In all, Bank was paid Rs.27,70,000/-. The debt due to the Bank was over Rs.70 lakhs of Rupees and at the time of repayment of loan to Bank, a sum of Rs.88,60,789/- was due in the year 2013. However, appellant cleared the entire loan amount and discharged the entire loan sometime in 2013. Further, pursuant to the compromise, appellant has also withdrawn suit in O.S.No.412 of 2005. Likewise, as per agreement/compromise, a sum of Rs.42 lakhs should be paid by respondent from his pocket which remained unpaid till date. Thus, the compromise was not acted upon.

47. Be that as it may. With regard to interpretation of Clauses 3 and 5 of terms of compromise made by respective parties in respect of payment of Rs.42 lakhs, we are of the opinion that the only question that has to be decided is as to whether appellant can pray in O.S.No.3 of 2011 to set aside the Lok Adalat decree/Award by filing the said separate suit under the guise that respondent has not paid Rs.42 lakhs as agreed upon in the Lok Adalat, though it is the case of respondent that the said amount has to be paid only after selling the property(ies). Further, we find that as per Clause 3 of terms of compromise, the http://www.judis.nic.in 45 amount deposited in I.A.No.14 of 2006 in O.S.No.13 of 2005 by fourth defendant in the suit, had been withdrawn by appellant and had been remitted to loan amount subsequent to compromise decree. Further, as per compromise decree, dated 16.06.2006, suits filed by appellant in O.S.Nos.18 and 412 of 2005 were withdrawn by him subsequent thereto. Moreover, parties have sold a portion of the properties, i.e. second item, and another adjoining land. Thus, the major part of the performance of compromise decree had been complied with by both the parties in terms of the compromise. Hence, at this stage, the appellant-Abul Kalam Azad is estopped from questioning the validity of the compromise decree, dated 16.06.2006 subsequent to the part performance of the agreement.

48. Therefore, we are of the opinion that at this stage, the appellant cannot turn around and say that the compromise decree in Lok Adalat is not complied with and it has become inexecutable. We are of the opinion that when the appellant has not come forward to sell the remaining properties to enable the respondent to pay the sum of Rs.42 lakhs, the respondent has no other alternative except to file I.A.No.22 of 2007 in O.S.No.13 of 2005 seeking to pass final decree. The terms of compromise say that it is only preliminary decree that was passed and the share of the parties in the properties were also clearly mentioned therein and that they shall effect partition of the remaining properties after selling the properties and discharging the loan to the Bank and thereafter, the respondent had to pay Rs.42 lakhs and the remaining properties shall be divided equally by the parties. Thereafter, the parties have to administer the property, namely Kalyana Mandapam and also the complex jointly, since there http://www.judis.nic.in 46 was rental income from these properties. Therefore, it is incorrect to state that the share was not defined in the Award passed by the Lok Adalat. In fact, the specific clauses to the compromise, had been accepted by both the parties and even in the Award, the parties and their counsel have put their signatures and the contents were read over to them and understood by them. Moreover, in the memorandum of compromise, it is stated as follows:

49. Further, the trial Court, in I.A.No.22 of 2007 in O.S.No.13 of 2005, by order dated 03.08.2009, has appointed an Advocate Commissioner and he has also filed his report before the trial Court, as to how to effect partition of the suit properties. In the meantime, the respondent has filed I.A.No.21 of 2007 in O.S.No.13 of 2005 for a direction to direct the appellant to deposit the rental income from one of the suit properties to the credit of the suit till the final decree is passed in the suit partitioning the properties. Likewise the appellant-Abul Kalam Asad has also filed I.A.Nos.30 and 31 of 2007 in O.S.No.13 of 2005 praying not to pass final decree in the suit till the respondent-Jawaharlal extinguishes the bank loan and also praying not to pass final decree in the suit till the respondent pays Rs.42 lakhs to him as per the compromise entered, respectively. In the affidavit filed in support of I.A.Nos.30 and 31 of 2007 in O.S.No.13 of 2005, filed by the appellant, it is stated as follows:

http://www.judis.nic.in 47 "6.b. The preliminary decree is a compromise arrived at between the parties therefore the court does not have the power to redraft or reframe the same."

50. The compromise in this case is more or less like a preliminary decree, and it is clear that the parties have understood the contents of the compromise and the parties have also signed in the compromise, as the same was read over to them. When that being so, now the appellant cannot make any objection with regard to the maintainability of the final decree application. As already stated above, as per the terms of compromise, the properties have to be sold and the Bank loan had to be discharged based upon the sale proceeds and further, the respondent has to pay Rs.42 lakhs to the appellant. But the appellant did not co- operate to fulfil the terms of compromise. Under such circumstances, left with no other alternative, the respondent approached the trial Court to pass final decree in the suit by filing I.A.No.22 of 2007 in O.S.No.13 of 2005. Therefore, we absolutely do not find any illegality in filing the final decree application.

51. Learned Senior Counsel appearing for the respondent relied on Section 21 of the Legal Services Authorities Act to contend that every Award of the Lok Adalat shall be deemed to be a decree of a Civil Court and no appeal shall lie thereto. Section 21 reads as follows:

Section 21: Award of Lok Adalat: (1) 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 http://www.judis.nic.in 48 other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870).

(2) Every award made by a 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."

52. Therefore, the decree by the Lok Adalat may be construed as preliminary decree or final decree, as the case may be, in relation to the definition of "decree" in Section 2(2) of the Code of Civil Procedure, which reads as follows:

"Section 2: Definitions: In this Act, unless there is anything repugnant in the subject or context,--

... ..

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation:-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may http://www.judis.nic.in 49 be partly preliminary and partly final;"

Further, under Section 21 of the Legal Services Authorities Act, the Lok Adalat Award has to be construed as a decree of a Civil Court. On a reading of Section 21 of the Legal Services Authorities Act, it is clear that no appeal shall lie as against the decree passed by the Lok Adalat. Thus, the decree passed by the Lok Adalat is deemed to be the decree of a Civil Court for the purpose of execution and other consequential proceedings. Any order/decree/Award passed by the Lok Adalat, is executable before a Civil Court and the Award of the Lok Adalat is final and no appeal shall lie as against the Award of the Lok Adalat as per Section 21(2) of the Legal Services Authorities Act. In this regard, it is appropriate to refer a decision of the Supreme Court reported in 2017 (5) CTC 775 (SC) (Bhargavi Constructions Vs. Kothakapu Muthyam Reddy), wherein the Apex Court held as follows:

"25. The question arose before this Court (Three Judge Bench) in the case of State of Punjab (supra) (State of Punjab Vs. Jalour Singh), 2008 (1) TN MAC 244 (SC) : 2008 (2) SCC 660) as to what is the remedy available to the person aggrieved of the Award passed by the Lok Adalat under Section 20 of the Act. In that case, the award was passed by the Lok Adalat which had resulted in disposal of the Appeal pending before the High Court relating to a Claim case arising out of Motor Vehicle Act. One party to the Appeal felt aggrieved of the Award and, therefore, questioned its legality and correctness by filing a Writ Petition under Article 226/227 of the Constitution of India. The High Court dismissed the Writ Petition holding it to be not maintainable. The aggrieved party, therefore filed an Appeal by way of http://www.judis.nic.in 50 Special Leave before this Court. This Court, after examining the scheme of the Act allowed the Appeal and set aside the Order of the High Court. This Court held that the High Court was not right in dismissing the Writ Petition as not maintainable. It was held that the only remedy available with the aggrieved person was to challenge the Award of the Lok Adalat by filing a Writ Petition under Article 226 or/and 227 of the Constitution of India in the High Court and that too on very limited grounds. The case was accordingly remanded to the High Court for deciding the Writ Petition filed by the aggrieved person on its merits in accordance with law.

26. This is what Their Lordships held in Para 12:

"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 Article 227 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, is 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."

http://www.judis.nic.in 51

27. 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.

28. 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.

29. The High Court was, therefore, not right in by passing the law laid down by this Court on the ground that the Suit can be filed to challenge the Award, if the challenge is founded on the allegations of fraud. In our opinion, it was not correct approach of the High Court to deal with the issue in question to which we do not concur."

53. Further, the learned Senior Counsel appearing for the respondent relied on another decision of the Supreme Court reported in 2005 (4) CTC 30 (SC) (Thomas.P.T. Vs. Thomas Job), and the relevant portion of the same reads as follows:

"16. In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the Courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the Court itself though arrived at by the http://www.judis.nic.in 52 simpler method of conciliation instead of the process of arguments in Court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever. The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless."

"19. Award of Lok Adalat--The Lok Adalat shall proceed and dispose the cases and arrive at a compromise or settlement by following the legal principles, equity and natural justice. Ultimately the Lok Adalat passes an award, and every such award shall be deemed to be a decree of Civil Court or as the case may be which is final."

"20. Award of Lok Adalat shall be final--The Lok Adalat will passes the award with the consent of the parties, therefore there is no need either to reconsider or review the matter again and again, as the award passed by the Lok Adalat shall be final. Even as under Section 96(3) of C.P.C. that "no appeal shall lie from a decree passed by the Court with the consent of the parties." The award of the Lok Adalat is an order by the Lok Adalat under the consent of the parties, and it shall be deemed to be a decree of the Civil Court, therefore an appeal shall not lie from the award of the Lok Adalat as under Section 96(3) C.P.C."

"23. The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties."

"26. We have already discussed about the steps taken by the appellant to serve notice on the respondent and the steps taken by him to perform his obligations and sending of the notice and telegram, etc. would not have been done unless the appellant was ready with his obligations and the money all along. The appellant had waited till almost the last day for the respondent to perform his obligations. The High Court, in our view, has failed to note that the Courts attempt should be to give life and enforceability to the compromise award and not to defeat it on technical grounds. This is a fit case, in our view, where the Respondent ought to have been http://www.judis.nic.in 53 directed to execute the sale deed by the extended time, if necessary. The High Court is also not correct in holding that the Court has no jurisdiction to extend the time. In our view, the learned Subordinate Judge has rightly extended the time for depositing the money which the High Court has wrongly interfered with."

54. Therefore, the dictum laid down in the above judgments of the Supreme Court clearly shows that the challenge to the Award of Lok Adalat, can be done only by filing Writ Petition under Article 226 of the Constitution of India before this Court, or by filing petition before this Court under Article 227 of the Constitution of India by which the High Court has power of superintendence over all Courts, and the petitions under Article 226 or Article 227 shall be filed only on very limited grounds and it cannot be set aside by filing a suit or appeal. In this regard, it is relevant to note that under Section 96(3) CPC, no appeal shall lie from a decree passed by the Court with the consent of parties. Further, Order 23 Rule 3-A CPC imposes a bar to file suit and that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

55. Therefore, absolutely we do not find any infirmity in filing the final decree application by the respondent-Jawaharlal along with a prayer to appoint Advocate Commissioner. On this ground alone, the Civil Revision Petitions and Appeal Suits are liable to be dismissed.

56. Further, the appellant-Abul Kalam Azad also filed O.S.No.3 of 2011 to http://www.judis.nic.in 54 set aside the Award of the Lok Adalat, dated 16.06.2006 passed in O.S.No.13 of 2005. Affer a lapse of five years from the date of the Award of the Lok Adalat, the appellant filed fresh suit as stated above in O.S.No.3 of 2011 only with an ulterior motive to drag on the proceedings which are barred by limitation under Section 3 and Article 59 of the Limitation Act. Therefore, the said suit in O.S.No.3 of 2011 filed to set aside the Award of the Lok Adalat, is not maintainable and such prayer will totally defeat the object and purpose of the Legal Services Authorities Act. Further, the suit filed by the appellant in O.S.No.3 of 2011 for partition also is not maintainable, as the property in O.S.No.3 of 2011 is same in O.S.No.18 of 2005 filed by him in respect of A-schedule property therein. Hence, the same issue cannot again be agitated by filing O.S.No.3 of 2011, and therefore, the prayer for partition is also not maintainable. After the compromise decree, the said suit in O.S.No.18 of 2005 was withdrawn.

57. It is the case of the appellant that insofar as B-schedule property in O.S.No.3 of 2011 is concerned, after the compromise decree in Lok Adalat, the respondent-Jawaharlal has sold A-schedule property in O.S.No.3 of 2011 to the fourth defendant and the sale proceeds were invested in B-schedule property. Hence, the appellant prayed for alternative prayer in O.S.No.3 of 2011 in respect of B-schedule property. We find that as stated above, already in respect of the very same property in A-schedule in O.S.No.3 of 2011, the suit in O.S.No.18 of 2005 was filed and the same was withdrawn after the Award of the Lok Adalat. Therefore, O.S.No.3 of 2011 is not maintainable on this ground also.

58. Moreover, it is the case of the appellant-Abul Kalam Azad that he had http://www.judis.nic.in 55 contributed 90% of the amount towards purchase of the property by the father- in-law of the respondent-Jawaharlal, but he has not produced any tangible evidence by producing the Bank account to show that he had sent the money for purchase of the property by investing 90% of the amount. What was the exact amount invested in purchase of the property, is not shown and only salary receipt and other documents were marked as exhibits in the suit in O.S.No.3 of 2011. Thus, apart from legal grounds, there are no merits in all these C.R.Ps. and A.S.

59. Further, as discussed earlier in this judgment, it is open for the parties to file writ petition under Article 226 of the Constitution of India or petition under Article 227 of the Constitution of India, before this Court, challenging the Award of the Lok Adalat, as observed by the Supreme Court in the decision stated earlier in this judgment.

60. With regard to the prayer made in M.P.No.1 of 2012 and C.M.P.No.10841 of 2018 in A.S.No.993 of 2009 filed by the appellant-Abul Kalam Azad, seeking permission to file additional documents, it is useful to refer a decision of the Supreme Court in the case of Malayalam Plantations Limited Vs. State of Kerala and another, reported in AIR 2011 SC 559, wherein it was held by the Apex Court as follows:-

"11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing of the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. Further, additional evidence could be adduced in one of the three situations namely (a) whether the trial court has illegally refused http://www.judis.nic.in 56 the evidence although it ought to have permitted (b) whether the evidence sought to be adduced by the party was not available despite the exercise of due diligence and (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacuna or to patch up the weak points in the case."

61. Applying the above decision of the Supreme Court to the case on hand, the claim of the appellant/first defendant (Abul Kalam Azad) in O.S.No.13 of 2005, for filing additional documents, will not fall in any of the parameters laid down by the Apex Court in the above decision. It is not the case of the appellant/first defendant that he has filed the documents before the trial court, but it was unlawfully rejected by the trial court. It is also not the case of the first defendant that inspite of exercise of due diligence, he was prevented from filing the documents in his possession. Further, it is not open to the appellant/first defendant to make fresh allegations and call upon the other side to admit or deny such allegations at the stage of appeal, which is contrary to the provisions contained under Order 41 Rule 27 of CPC. Therefore, we are of the view that the prayer of the appellant/first defendant in these miscellaneous petitions, seeking permission to mark the additional documents at the appellate stage, cannot be countenanced and it has to be rejected. Accordingly, M.P.No.1 of 2012 and C.M.P.No.10841 of 2018 in A.S.No.993 of 2009, are dismissed. http://www.judis.nic.in 57

62. The respondent-plaintiff-Jawaharlal in O.S.No.13 of 2005, has filed C.M.P.No.3395 of 2017 in A.S.No.993 of 2009 to appoint a Receiver to maintain and administer the suit properties and to give true accounts to this Court. At this stage, in view of the disposal of A.S.No.993 of 2009 itself by this judgment, along with the connected cases, this C.M.P. need not be considered and the same is closed.

63. With the above observations, all the Civil Revision Petitions and First Appeals (Appeal Suits) are dismissed. No costs. Consequently, the other miscellaneous petitions are closed.

(R.P.S.J) (R.P.AJ) 26.11.2018 Index: Yes Speaking Order : Yes cs To 1. The Principal District Judge, Perambalur. 2. The Judge, Mahila Court, Perambalur.

3. The Section Officer, V.R. Section, High Court, Madras. http://www.judis.nic.in 58 R.SUBBIAH, J and R.PONGIAPPAN, J cs Judgment in C.R.P.Nos.4093 and 4094 of 2010, 4747 and 4748 of 2011, 453 of 2017 and A.S.Nos.993 of 2009 and 553 of 2017 26.11.2018 http://www.judis.nic.in

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Title

A.L.Abul Kalam Azad vs A.L.Jawaharlal

Court

Madras High Court

JudgmentDate

03 August, 2009

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