GRAM PANCHAYAT OF VILLAGE NAULAKHAversusUJAGAR SINGH AND ORS.

           GRAM PANCHAYAT OF VILLAGE NAULAKHA                                A
                            v.
                  UJAGAR SINGH AND ORS.

                         SEPTEMBER 27, 2000

     [M. JAGANNADHA RAO AND K.G. BALAKRISHNAN, JJ.]                          B


     Code of Civil Procedure, I 908.

      S. I I-Plea of res judicata-Defence against-Application u/s. 7 of
Punjab Village Common Land (Regulation) Act, 1961 filed by Gram C
Panchayat-Respondent relying on an earlier decree for injunction-Plea
that earlier decree was obtained by collusion-Accepted by Collector as
also by Development Commissioner, but rejected by High Court relying on
its earlier Full Bench decision*-Held, it is open to statutory authorities to
go into collusive nature ofsuit in proceedings u/s. 7 ofthe Act-No independent D
suit as a condition precedent is necessary-High Court's judgment based on
its earlier Full Bench decision, being contrary to s.44 of Evidence Act, is set
aside-Matter remitted to High Court for disposal afresh-Punjab Village
Common land (Regulation) Act, 1961, S. 7-Evidence Act, 1872-S.44.

     Decree-Collusive decree-Defence against plea of res judicata.            E
     legal Maxim-Fabula non judicium, hoc est in scena non in foro res
agitur-Applicability of

     Words and Phrases-"Collusion"-explained
                                                                             F
      *Gram Panchayat, Village Bathoi Kalan Patiala v. Jagar Ram and
Ors., AIR (1991) P & H 159, overruled.

      Sajjadanashin Sayed v. Musa Dadabhai Ummer, [2000) 3 SCC 350,
relied on.
                                                                             G
     Boswellv. Coaks, [1894) 6 Rep. 167, referred to.

     Sarkar on Evidence, (13th Ed., reprint) p. 509 and Spencer-Bower and
Turner on Res Judicata (2nd Ed., 1969), referred to.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5467 of 2000.           H
                                   457
          458                    SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

      A        From the Judgment and Order dated 12.10.98 of the Punjab and Haryana
          High Court in C.W.P. No. 11569of1997.

                R.K. Kapoor, P. Varma, S.K. Srivastava, Sumit Kumar, Anis Ahmed Khan,
          S.D. Sharma, Neeraj Sharma and Balbir Singh Gupta for the appearing parties.

      B         The following Order of the Court was delivered :

                Leave granted.

                This appeal is preferred by the Gram Panchayat against the judgment
         of the High Court of Punjab and Haryana dated 12.10.1998 in CWP No. 11569
     C of 1997. The appellant filed an application under Section 7 of the Village
        Common Land (Regulation) Act, 1961 and an order was passed in its favour
         by the Collector on 12.7.1988. The Collector found that an earlier decree
        obtained by the respondents against the appellant for injunction on 10.6.1975
        was a decree obtained by the respondents in collusion with the then Sarpanch
        and was not binding on the Panchayat in the present proceedings. On appeal
     D by the respondents before the Development Commissioner, the said judgment
        was affirmed on 13.3.1997 upholding the plea of collusion. The respondents
        then moved the High Court by way of a writ petition and the writ petition was
        allowed by the High Court on 12.10.1998. The learned judges of the High
       Court did not go into the question of collusion or the merits of the case but
'·   E felt bound by a decision of a Full Bench of the Punjab and Haryana High
       Court in Gram Panchayat, Village Bathoi Kalan, Patiala v. Jagar Ram and
        Ors., AIR (1991) P&H 159, which judgment was said to have been followed
       by another Division Bench on.28.1.1998. The Full Bench judgment laid down
       that the statutory authorities under the Punjab Village Common Land
       (Regulations) Act, 1961 could not ignore an earlier decree against the
     F Pancha:yat on the ground of its being collusive and fraudulent, unless the
        Panchayat had first filed an independent suit to set aside the said decree or
       sought declaration that the decree was collusive or fraudulent.
                                              .,,.
               In the present case, learned counsel for the appellant submits that
     G admittedly the earlier suit was filed by the respondents against the Panchayat
       for injunction on 16.5.1975 and that the Sarpanch then conceded the case of
       the respondents and a decree was passed on 10.6.1995 within 24 days of the
       filing of the suit and that the said decree was, in the face of these facts,
       obviously collusive and that it was not necessary to drive the appellant to
       a separate suit to establish that the said decree was collusive. Learned
     H counsel contends that the Full ·Bench in Jagar Ram 's case has laid down a
          GRAM PANCHAYAT OF VILLAGE NAULAKHA v. UJAGAR SINGH                     459

 wrong principle. In order to raise a plea of collusive of an earlier suit, it is not   A
 necessary to file _an independent suit and obtain another decree as a condition
 precedent. Counsel submits that, in the facts of this case, the collusion is
 obvious and the Collector and the Appellate authority were having the
 necessary jurisdiction to decide that the earlier decree was collusive. The
 earlier decree, being collusive, cannot operate as res judicata.
                                                                                        B
        On this point, we have heard the learned counsel for the respondents
  who contended that the principle laid down by the Full Bench in Jagar Ram 's
  case is correct and that the earlier judgment in the present case is binding
  on the basis of the principle of res judicata. The panchayat cannot therefore
· raise a plea of collusion in the latter proceeding unless it has first filed ~ suit   C
  and obtained a declaration or unless it took steps to have the earlier decree
  set aside.

        We may state that the view taken by the Full Bench of the Punjab &
  Haryana High Court in Jagar Ram 's case is not correct and in fact, it runs
 contrary to the provisions of section 44 of the Indian Evidence Act. That              D
  section provides that: Any party to a suit or proceeding may show that any
 judgment, order or decree which is relevant under sections 40, 4I, 42 and
  which has been delivered by a Court not competent to deliver it or was
 obtained by fraud or collusion. (Section 40 refers to the relevances of previous
 judgments which are pleaded as a bar to a second suit or trial and obviously
 concerns section I I CPC).                                                             E
        It appears from commentary in Sarkar's Evidence Act (13th Ed., reprint)
 (at p. 509) on section 44 that it is the view of the Allahabad, Calcutta, Patna,
 Bombay High Courts that before such a contention is raised in the latter suit
 or proceeding, it is not necessary to file an independent suit. The passage
 from Sarkar' s Evidence which refers to various decisions reads as follows:            F
         "Under Section 44 a party can, in a collateral proceeding in which
         fraud may be set up as a defence, show that a decree or order
         obtained by the opposite party against him was passed by a court
         without jurisdiction or was obtained by fraud or collusion and it is           G
         not necessary to bring an independent suit for setting it aside, Bansi
         v. Dhapo, ILR 24, All 242; Rajib v. Lakhan, ILR I7 Cal. I I; Parbati
         v. Gajraj, AIR (1937) All. 28; Prayag v. Siva, AIR 1926 Cal. l; Hare
         Krishna v. Umesh, AIR (1921) Pat. 193; Aswini v. Banamali, 21 CWN
         594; Manchharam v. Kalidas, ILR I9 Born. 821; Ranganath v. Govind,
         ILR 28 Born. 639; Kamiruddin v. Jhadejanessa, AIR (I929) Cal. 685;             H
     460                    SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A           Bhagwandas v. Patel & Co., AIR (1940) Born. 131; Bishunath v.
            Mirchi, AIR (1955) Pat. 66 and Vijaya v. Padmanabham, AIR (1955)
            AP 112."

     Thus, in order to contend in a latter suit or proceeding that an earlier judgment
    was contained by collusion, it is not necessary to file an independent suit as
B   stated in Jagar Ram's case for a declaration as to its collusive nature or for
    setting it aside, as a condition precedent. In our opinion, the above cases
    cited in Sarkar's Commentary are correctly decided. We do not agree with the
    decision of the Full Bench of the Punjab & Haryana High Curt in Jagar Ram's
    case. The Full Bench has not referred to section 44 of the Evidence Act not
C   to any other precedents qf other Courts or to any basic legal principle.

            The law in England also appears to be the same, that no independent
     suit is necessary. In Spencer-Bower and Turner on Res Judicata (2nd Ed.,
     1969) it is stated (para 369) that there are exceptions to the principle of res
    judicata. If the party setting up res judicata as an estoppel has alleged all
D   the elements of an estoppel (i.e ingredients of res judicata), it is still open
    to the latter (the opposite party) to defeat the estoppel by setting up and
    establishing certain affirmative answers. Of these there 'are four main classes-
    fraud, cross-estoppel, contract and public policy. The author clearly says that
    no active proceedings for 'rescission' of the earlier judgment are necessary.
E   They state (para 370) as follows:

            "The avoidance of a judicial act on the ground of fraud or collusion
            is effected not only by active proceedings for rescission ........but also
            by setting up the fraud as a defence to an action on the decision, or
            as an answer to any case which, whether by way of estoppel or
F           otherwise, depends for its success on the decision being treated as
            incontrovertible."

    Thus, the law is well settled that no independent suit as a condition precedent
    is necessary.

G         Collusion, say Spencer-Bower and Turner (para 378), is essentially play-
    acting by two or more persons for one common purpose-a concerted
    performance of a fabula disguised as a judicium-an unreal and fictitious
    pretence of a contest by confederates whose game is the same. As stated by
    Lord Selbome LC in Boswell v. Coaks, (1894) 6 Rep. 167, there is no judge;
    but a person invested with the ensigns of a judicial office, is misemployed
H   in listening to a fictitious cause proposed to him, there is no party
        GRAM PANCHAYAT OF VILLAGE NAULAKHA v. UJAGAR SINGH                  461

litigating ....... no real interest brought into question and to use the words of   A
a very sensible civilian on this point,fabula non judicium, hoc est; in scena,
non in foro, res agitur. That, in our view, is the true meaning of the word
'collusion' as applied to a judicial proceeding.

       Further property of a public institution cannot be allowed to be
jeopardised by persons who, at an earlier point of time, might have represented     B
it and who were expected to effectively defend public interest and community
property. Persons representing public bodies are expected to discharge their
functions faithfully and in keeping with the trust reposed in them.

       We may also add one other important reason which frequently arises
under section 11 CPC. The earlier suit by the respondent against the Panchayat      C
was only a suit for injunction and not one on title. No question of title was
gone into nor decided. The said decision cannot, therefore, be binding on the
question of title. See in this connection Sajjadanashin Sayedv. Musa Dadabhai
Ummer, [2000] 3 SCC 350, where this Court, on a detailed consideration of
law in India and elsewhere held that even if, in an earlier suit for injunction,    D
there is an incidental finding on title, the same will not be binding in a latter
suit or proceedings where title is directly in question, unless it is established
that it was 'necessary' in the earlier suit to decide the question of title for
granting or refusing injunction and that the relief for injunction was founded
or based on the finding of title. Even the mere framing of an issue on title may
not be sufficient as pointed out in that case.                                      E
       Thus, it was open to the statutory authorities under the 1911 Act to go
into the collusive nature of the suit in the proceedings under Section 7 of the
1911 Act as stated above. The High Court has not gone into the merits of
the decision of the Collector and the Appellate authority but has allowed the       F
writ petition solely based on the Full Bench decision in Jagar Ram. We have
now overruled the Full Bench decision. We, therefore, set aside the judgment
of the High Court and remit the writ petition to the High Court for disposal
in accordance with law, in the light of the above observations.

      The appeal is allowed and disposed of accordingly. There shall be no          G
order as to costs.

RP.                                                            Appeal allowed.