2000 (9) TMI 1076

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....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 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 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....

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....es judicata. 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 a suit 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 section provides that: Any party t....

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....hi, 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 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 to any other precedents of other Courts or to any basic legal principle. The law in England also appears to be the sa....

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....ere is no judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating.......no real interest brought into question and to use the words of a very sensible civilian on this point, fabula nonjudicium, 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 it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge....