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JKLR-Part(I) CIA 18/2000 Back To Index
(2001) 1 J & K LAW
Honble Mr. Justice A.M. Mir, Judge
SMT. TSERING DOLKAR
CIA 18 / 2000 decided on 23-12-2000.
J&K Legal Services
Authorities Act, 1997. Ss. 18 and 19. Sections lay down that Lok Adalat should be
organized by the Competent authority - Competent Authority is the District authority -
While organising a Lok Adalat proceedure as laid down in S. 18 is required to be followed
mandatorily - Consent of the parties must be obtained - Consent should be apparent on the
record - Person giving consent should be made aware of the statutory provisions - Consent
given by a lady who did not understand urdu language was held to be no consent - Court
should abide by the principle of justice, equity and good conscience - Mandatory
provisions not complied with - Decision of Lok Adalat held to be bad.
JUDGMENT AND ORDER ( Oral )
This appeal arises out of a judgment and decree passed by District Judge Leh on16-4-1999. The parties to the appeal are spouses. Respondent-husband filed a petition under section 13-Hindu Marriage Act for dissolution of the marriage by a decree of divorce. Desertion and cruelty are the two grounds taken by the petitioner-husband before the Trial court. When the appellant appears before the court on 23-7-1998, she received a copy of the petition. on her behalf, on the subsequent date i.e. 27-8-1998, an advocate also appears. However, on 2-3-1999 she prays for an adjournment for filing her written statement. On 16.4.1999 the Court records the statements of the parties. It is worth while to place on record that on 10-12-1998 the court seems to have made an attempt to pursuade the respondent to enter into a compromise but with all pursuation appellant persisted on filing of the written statement. However, on 16.4.99, after recording the statements of the parties, the court decided to hear the matter in its capacity as Lok Adalat and decreed the petition on the strength of an agreement on behalf of the defendant Appellant.
The main ground taken in the appeal is that she never gave any consent to the dissolution of marriage and the court below has erroaeouly attributed the consent to her.
Mr. Goja learned cousel appearing for the respondent, has raised a preliminary two-fold objection. According to him, this is judgment and decree passed by the court in its capacity as Lok Adalat which, under sub-sec.(2) of section 20 of the J&K Legal Services Authorities Act, 1997 (hereinafter referred to as theAct), is not appealable. Second limb of the this argument is that even if this is treated to be a judgment and decree under the Code of Civil Procedure then also in terms of section 96 no appeal from a consent decree shall lie. I have registered both the aspects of this argument.
The trials by Lok Adalats are regulated by the Act. Section 18 empowers the State Authority, the District Authority or the High Court Legal Services Committee to organise Lok Adalats. It reads as under :-
What becomes clear after reading this provision is that the formation of a Lok Adalat is for any of the three authorities spelt out in section 18. The competent authority shall not only pass an order of organisation of such a Lok Adalat but also lay down the following :-
Thus before a Lok Adalat functions, the same must have been formed and organised and for doing so the procedure laid down by section 18 must have been adopted. Where that is not done, no Lok Adalat can function.
Which are the cases which will be heard by a Lok Adalat is borne out by section 19 of the Act. In the facts and circumstances of this case it becomes necessary for me to reporduce the relevant portion of section 19, which reads as under :-
The above provision makes it clear that only those cases shall be tried by the Lok Adalat where :
The golden thread running through section 19 is that parties to the litigation should agree to the reference of the matter to Lok Adalat. In this behalf the parties must be heard and their consent should be sought. The courts expedition for speedy justice should not be unbriddled, on the other hand it should observe rule of justice, fair play and good conscience.
In this behalf a special reference to sub-section (4) of section 19 requires to be made. It reads as under:-
On a cumulative reading of sections 18 & 19 of the Act it transpires that before a case is heard by Lok Adalat, the following conditions sholud be fulfilled :-
Here in the present case neither a Lok Adalat was organised nor were its associated members nominated. The question of the authority having specified the place and date of Lok Adalat would not, therefore, arise. There was no agreement of the parties or an application of either of the parties for reference of the case to the Lok Adalat. The learned District Judge without taking note of sections 18 & 19 of the Act assumes unto himself the powers of the Lok Adalat and tries to decide the matter. He had no jurisdiction to convene a Lok Adalat without the same having been organised by the District Authority. So the court below has erred in passing the judgment as a Lok Adalat. This aspect of the case, not only vitiates the judgment and decree but also answers one of the facets of the preliminary objection raised by Mr. Goja. I am of the firm view that in the light of what has been observed above, section 20 (2) of the Act has no relevance and this appeal cannot be said to be barred by this privision of law.
As far the secound facet is concerned, I have gone through the record of the court below. On such exmination, I have come to the conclusion that the appellant-wife has at no stage offered her consent to the passing of the decree. On all the dates i.e. 27.8.1990, 10.12.1998 and 2.3.1999 she makes a prayer before the court to provide her an opportunity to file her written statement. It was all of a sudden on 16.4.1999 that the judgment and decree impugned was passed. No doubt that the statement of the appellant on that date was recorded. She is admittedly an illiterate woman belonging to a very backward area. She does not know urdu. This is borne out by the court order dated 10.12.1999 when the court utilised the services of an interpretter to convey its feeling to her. She has affixed her thumb impression on the statement. She had already engaged a lawyer who appeared with her on 27.8.1998. Mr Rabstan has vehemently argued that despite requests of the appellant her advocate was not waited for.
Be that, as it may, in an important case like this, the appellants consent could have been obtained by allowing her to file her written statement, which she was not allowed to do. The statement of the appellant was also not endorsed be her counsel. The Chief Judicial Megistrate Leh had already passed an order granting Rs.1000/- as maintenance to the two children of the parties on 12.6.1995. In that view of the matter also, there could be no occasion for the appellant to grant her consent as a quid pro quo for the maintenance amount.
The slogan of speedy justice has to accomplish a laudible object. It should not be mis-used so as to scuttle the process of law or to do injustice. This is why, an award to be passed by the Lok Adalat, in terms of sub-section (4) of section 19 is required not only to conform to law but should be guided by principles of justice equity, fair play and legal principle. In the present case I find the Act having been flouted, the court having no jurisdiction to act as a Lok Adalat and the consent having been attributed to the appellant, without taking care of the principles of good conscience, equity and fair play, can be said to be imaginary and not real.
I, in this backdrop find it to be a fit case where the judgment and decree impugned requires to be set aside. I do so by allowing the present appeal and remand back the petition to the trial court for proceeding in terms of the Code of Civil Proceedure and allowing the appellant to file her written statement and take any defence she wants. Trial court shall issue fresh notice to the parties.
Registrar (Judicial) is also directed to circulate this judgment to all the District Judges of the State for guidance.