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Compromise decree would be binding on the party even though if he has not signed on it : Kerala High Court.

Case Title: Ashiya Ummal v. S.N. Sathy & ors.

Case No: RSA NO. 247 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A. BADHARUDEEN

Facts of the Case

S.N.Sathy, the original plaintiff, instituted the Suit for fixation of boundary, recovery of possession and consequential injunction. During pendency of the Suit, Compromise was entered into on 16.01.2019 and the signatories in the compromise are the plaintiff, her counsel, 5th defendant and the counsel for the whole defendants.

The learned counsel for the appellant/1st defendant assails the said compromise on the ground that the 1st defendant did not sign in the compromise and the same should not bind the 1st defendant. Therefore, the learned counsel pressed for setting aside the compromise decree passed in the above Suit, where the 1st defendant is not a signatory.

The learned counsel for the plaintiff submitted that in the compromise entered into between the parties, the signatories are the plaintiff and the 5th defendant, husband of the 1st defendant. It is also pointed out by the learned counsel for the plaintiff that even though the 1st defendant did not directly put signature in the compromise, the 1st defendant thereafter acted upon the same and received benefit out of the same. Therefore, the 1st defendant accepted the compromise, the 1st defendant could not succeed in opposing the finality of the compromise and this appeal must fail.

Issues

  1. Whether challenge against a compromise decree is permissible by way of an appeal? If so, on what grounds?
  2. What is the legal effect of a compromise where a party did not sign?
  3. If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise?

Legal Provisions

Under Order XLIII Rule 1A (2) in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. At the same time, Section 96(3) of the C.P.C. provides that, no appeal shall lie from a decree passed by the court with the consent of parties. An apparent conflict between the two provisions of the Code, viz. S.96(3) C.P.C. which bars an appeal against a compromise decree and Order XLIII, Rule 1A(2) C.P.C. which allows an appellant to question the validity of a compromise by preferring an appeal against a decree passed on the basis of such compromise, looms large.

Order XXIII Rule 3 C.P.C. reveals the mode of recording compromise. After amending, Rule 3 of Order XXIII C.P.C., it was inserted a requirement that all lawful agreements or compromise would be in writing and signed by the parties, to enable the court to satisfy itself about the authenticity of the compromise/agreement. As per the proviso, where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. A new Rule 3A was also inserted in Order XXIII in the C.P.C. by the same Amendment Act which bars institution of a separate suit to challenge a decree passed on the basis of a compromise, on the ground that such compromise is not lawful.

Court’s analysis and decision

The Hon’ble High Court of Kerala has dealt with first issue while referring to the following judgements. The Supreme Court in Banwari Lal v. Smt.Chando Devi [1993 (1) SCC 581]: [AIR 1993 SC 1139] held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, Rule 3 C.P.C. before the same court by which the said decree was passed or an appeal under S.96(1) C.P.C. wherein it would be open for a party to question the validity of the compromise in view of Order. The Apex Court in H.S. Goutham v. Rama Murthy and another [2021 (5) SCC 241: AIR OnLine 2021 SC 269], held that an appeal against a compromise decree in terms of Order XLIII, Rule 1A C.P.C. was maintainable.

Neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by R.3A of O.23 of CPC. As such a right has been given under R.1A(2) of 0.43 of CPC to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S.96(3) of the Code shall not be a bar to such an appeal because S.96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.

The Hon’ble High Court of Kerala has combinedly dealt with second and third issues. There is no dispute that the 1st defendant is not a signatory in the compromise and on her behalf her lawyer signed. At the same time, the husband of the 1st defendant (5th defendant) also signed in the compromise. In this case, after passing decree in terms of the compromise as on 16.1.2019, subsequently the 1st defendant filed an affidavit before the Munsiff Court on 02.03.2019 and claimed the amount in terms of clause 5 of the compromise petition. Reading the affidavit, it is vivid that in paragraph No.2 thereof, the 1st defendant affirmed that “the said case was settled in terms of compromise petition dated 16.1.2019”. In paragraph No.3 it is affirmed by the 1st defendant that “as per clause 5 of the said compromise petition, the parties are directed to file separate statements of accounts.”.

The 5th defendant also filed an affidavit as Annexure-R1.C, in terms of the compromise. On perusal of Annexure-R1.D affidavit filed by the 1st defendant, it is emphatically clear that Ashiya Ummal agreed and consented the compromise and subsequently acted upon the same though she did not sign the compromise.

It has to be held that even though the 1st defendant did not sign the compromise, she had given consent to his lawyer to effectuate the compromise and she acted upon the same in view of Annexure R1.D affidavit. Therefore, the appellant herein who had given consent and acted upon the compromise cannot withdraw the consent thereafter and accordingly, it is held that the compromise shall bind the 1st defendant/appellant.

This Second Appeal is found to be meritless and is liable to be dismissed.

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Written by- Afshan Ahmad

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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. Maximum period of detention-The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.”

After the amendment in 2014, the Section 12 of the KAAPA reads as:

“12. Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN 

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. Maximum period of detention-The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.”

After the amendment in 2014, the Section 12 of the KAAPA reads as:

“12. Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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Application for grant of NOC should to be dealt with according to the rules in force at the date of disposal of the application: Kerala High Court

Case Title: A.H. Sheriff v. State of Kerala & Ors. 

Case No: WP(C) No. 33324 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE MURALI PURUSHOTHAMAN 

Facts of the Case

The petitioner submitted Ext.P1 application dated 28.05.2019 before the District Collector for more than four years for grant of No Objection Certificate (NOC) for quarrying granite from revenue puramboke land. Ext.P5 Government Order bringing comprehensive guidelines for grant of NOC for mining of minerals from Government land was issued on 28.01.2021. The application of the petitioner was rejected by Ext.P4 order dated 21.09.2023, much after the issuance of guidelines in Ext.P5.

The case of the petitioner is that his application has to be considered on the basis of the law prevailing at the time of submission of the application and Ext.P5 order issued subsequently cannot be relied upon to reject the application. The learned Senior Government Pleader would contend that the petitioner has no vested right to have his application considered applying any particular provision and that he has not approached this Court before issuance of Ext P5 order, seeking a direction to consider his application for NOC.

Issues

  1. Whether the application for grant of NOC has to be dealt according to the law prevailing at the time of submission of the application or rules in force at the date of disposal of the application?
  2. Whether the applicant of NOC has a vested right to have an application for grant of NOC to be dealt with in a particular way, by applying particular provisions?

Court’s analysis and decision

The Hon’ble High Court of Kerala has relied on State of Tamil Nadu v. M/s. Hind Stone and Others [(1981) 2 SCC 205: AIR 1981 SC 711] while dealing with this writ petition. In Hind Stone case, the Hon’ble Supreme Court has held that the action of the Government in keeping applications for lease pending for long and later, rejecting them by applying a rule made subsequently, is not open to challenge. The Court observed that no one has a vested right to the grant of lease and none can claim a vested right to have an application for grant of lease to be dealt with in a particular way, by applying particular provisions and that in the absence of any vested right, the application has necessarily to be dealt with according to the rules in force as on the date of disposal of the application despite the fact that there is long delay since the making of the application.

Though there is inordinate delay on the part of the District Collector in considering Ext.P1 application for grant of NOC for mining of minerals from Government land, since during the pendency of the application Ext.P5 Government Order has been issued providing comprehensive guidelines for grant of NOC, the application of the petitioner has to be considered in the light of Ext.P5. Ext.P5 Government Order is not under challenge in this writ petition. There is no direction sought for and obtained by the petitioner from this Court for an early consideration of Ext.P1 application before issuance of Ext.P5 Government Order. As held by the Hon’ble Supreme Court, the petitioner has no vested right to seek Ext.P1 application to be considered by applying the procedure as applicable before the issuance of Ext.P5.

The writ petition fails and is, accordingly, dismissed.

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The Kerala High Court directs the Travancore Devaswom Board to maximize vehicle parking, deploy volunteers and provide drinking water to pilgrims.

Case Title: Suo Motu v. State of Kerala & Ors.

Case No: SSCR No. 41 of 2023

Decided on: 3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE ANIL K. NARENDRAN & HON’BLE MR. JUSTICE G. GIRISH 

Facts of the Case

The Special Commissioner, Sabarimala submitted a report regarding certain aspects concerning crowd management with reference to the deficiency in the Fastag parking fees collection point and vehicle parking at Nilakkal and deployment of personnel at parking grounds to arrange parking of vehicles. The Hon’ble High Court of Kerala has suo motu initiated the proceedings.

The High Court of Kerala passed a detailed order dated 25.12.2023 on crowd management at Sabarimala and at various places like Ponkunnam, Mundakayam, Pala, Kanjirappalli, Thirunakkara, Ettumanoor and Vaikom.

The learned Senior Government Pleader and the learned Standing Counsel for Travancore Devaswom Board seek time to get instructions on crowd management and pilgrim facilities at Makarajyothi view points.

The learned Standing Counsel for Travancore Devaswom Board submits that the second track of FASTag scanning/parking fee collection provided at Nilakkal has become operational on 28.12.2023. It also submits that the total capacity of the parking grounds at Nilakkal is around 8,000 vehicles. The parking fee is being collected through FASTag. There was underutilization of parking facilities at Nilakkal during the Mandala-Makaravilakku festival season.

Issues

The primary issue involves deficiencies and management challenges in crowd control, parking facilities, and pilgrim amenities during the festival season at Nilakkal and various related locations, as highlighted in the Special Commissioner’s report and addressed by the High Court’s order.

Court’s Analysis and Decision

The Hon’ble High Court of Kerala directs the Travancore Devaswom Board and the District Police Chief, Pathanamthitta to ensure that a maximum number of vehicles are parked at the Devaswom parking grounds at Nilakkal. It also directs the Travancore Devaswom Board to take immediate steps to deploy sufficient number of volunteers at U-turn and S-valavu, especially during night hours, and provide drinking water and light refreshments to the pilgrims stranded at those locations. The additional 17th respondent Superintending Engineer, Kerala Water Authority, Public Health Circle, Pathanamthitta is directed to make provisions for adequate supply of drinking water at U-turn and S-valavu, in consultation with the Travancore Devaswom Board.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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