IMPORTANT POINT
In order to contend in a latter suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit.

ORDER

Leave granted.

2. This appeal is preferred by the Gram Panchayat against the judgment of the High Court of Punjab and Haryana dated 12.10.98 in CWP. No. 11569 of 1997. The appellant filed an application under Section 7 of the Village Common Land (Regulations) Act, 1961 and an order was passed in its favour by the Collector on 12.7.88. The Collector found that an earlier decree obtained by the respondents against the appellant for injunction on 10.6.75 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 13.3.97 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 12.10.98. 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.1 which judgment was said to have been followed by another Division Bench on 28.1.98. 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 Panchayat 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.

3. In the present case, learned counsel for the appellant submits that admittedly the earlier suit was filed by the respondents against the Panchayat for injunction on 16.5.75 and that the Sarpanch then conceded the case of the respondents and a decree was passed on 10.6.95 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 counsel contends that the Full Bench in Jagar Ram s case has laid down a wrong principle. In order to raise a plea of collusive of an earlier suit, it is not 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.

4. 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 isbinding 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.

5. 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 to a suit or proceeding may show that any judgment, order or decree which is relevant under Section 40, 41, 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 relevance of previous judgments which are pleaded as a bar to a second suit or trial and obviously concerns Section 11 CPC.)

6. 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,