JKLR-Part(I)                                                     CIA 18/2000                                          Back To Index

(2001) 1 J & K LAW REPORTER 29
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice A.M. Mir, Judge

SMT. TSERING DOLKAR                                                                                                      Appellant
                                                                               versus
SONAM YOUNGJOR                                                                                                             Respondent

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.
J&K Legal Services Authorities Act, 1997 - Ss. 18, 19 and 20 (2) - Appeal - Lok Adalat decided a matter without following the mandatory provisions of Ss. 18 and 19 - Remedy of appeal would be available.
Consent - Requirements of - Illiterate lady not knowing urdu language - Mere fixation of thumb impression - Contention raised by the person giving the consent, that no such consent was given - Finding recorded by High Court that in the circumstances available on the file, consent cannot be inferred.
Advocates who appeared in this case :
Mr. Tashi Rabstan, Advocate for appellant
Mr. P.N. Goja, Advocate for respondent

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 :-

"18-Organisation of Lok Adalats—(1) The State Authority of District Authority or the High Court Legal Services Committee, or as the case may be Tesil Legal Services Committee may organise Lok Adalat at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.

(2) Every Lok Adalat organised for an area shall consist of such number of :-
(a) Serving or retired judicial officers; and
(b) Other persons,
of the area as may be specified by the State Authority or the District Authority of the High Court Legal Services Committee, as the case may be, the Tehsil Legal Services Committee organising such Lok Adalat."

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 :-

i) The place where such Lok Adalat will be conducted,

ii) what is the point of time for conducting the Lok Adalat;

iii) Who will be the constituents of the Lok Adalat.

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 :-

"19-Cognizance of cases by Lok Adalats :- (1)Where in any case referred to in clause(1) of sub-section (4) of section 18

(i) a) the parties thereof agree; or

b) one of the parties thereof makes an application to the court for referring the case to the Lok Adalat for settlement and if such court prima facie satisfied that there are chances of such settlement; or

ii) The court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat;

the court shall refer the case to the Lok Adalat,

Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties."

The above provision makes it clear that only those cases shall be tried by the Lok Adalat where :

i) both the parties agree to such settlement by Lok Adalat;

ii) One of the parties makes an application to the court for reference of the case to Lok Adalat;

iii) When the court is satisfied that the matter in appropriate one to be taken cognizance by Lok Adalat;

iv) The proviso reproduced above shows that before dealing with the application of either of the parties or before the court coming to the satisfaction of suomoto reference, parties must be given a reasonable opportunity of being heard.

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 court’s 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:-

"(4) Every Lok Adalat shall, while determining any reference before it under this Act, with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles."

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 :-

i) The Lok Adalat should have been organised by the Competent Authority;

ii) While organising the Lok Adalat procedure as laid down in section 18 should have been observed;

iii) While choosing a case for adjudication by Lok Adalat, the consent of the parties must have been obtained;

iv) That while disposing the case, the court should abide by the principles of justice, equity and good conscience.

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 appellant’s 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.