Gram Panchayat vs Gurudwara Dukh Nivaran Sahib on 14 October, 2009
When confronted with the availability of alternative remedy of
appeal being available to the defendant- petitioner under Order 41 and
Section 96 CPC, counsel for the petitioner submitted that the suit had been
filed by the plaintiff - respondent Sukhdev Singh, who was President of the
Managing Committee of the plaintiff- respondent in collusion with
Nachhatar Singh who held the post of Sarpanch of Gram Panchayat, Village
Sohian. In order to support of her contention, counsel has referred to the
vague written statement filed on behalf of Gram Panchayat as well as to the
act of Gram Panchayat in not producing any evidence on behalf of
defendant. It is contended that the present Sarpanch Gurmail Singh has
come to know about the collusion of the former Sarpanch with the President
of the Managing Committee of plaintiff- respondent who also happens to be
the Panch of the Gram Panchayat. Counsel for the petitioner has placed
reliance on Dewan Chand Vs. District and Sessions Judge, Sangrur,
1995 (3) PLR 65, wherein it had been observed that where illegality is writ
large on the face of the record and the facts do not have to be proved in
order to demonstrate it, it is always open to the High Court to exercise its
powers of superintendence under Article 227 of the Constitution of India.
In the said case, the High Court had given a direction to the Subordinate
Judge to dismiss the suit pending before it. Holding in the circumstances of
the said case that no useful purpose will be served if the petitioner in the
said case is allowed to go through an onerous and protracted trial for no
rhyme and reason. The defendant- petitioner has been able to prima facie
show some collusion which is apparent from the written statement and
C.R. No. 5912 of 2009 [3]
conduct of the former Sarpanch. A copy of the jamabandi for the year
2004-05 pertaining to the land in dispute has been produced on record
indicating that the land in dispute is owned by the Gram Panchayat and in
the remarks column, there is a reference of the decree passed by the Civil
Judge, Jagraon, which decree is claimed by the defendant- petitioner to be
collusive and indicative of a fraud having been played upon the Court by the
parties to grab the land of Gram Panchayat. The impugned order closing the
evidence of the defendant- petitioner (annexure P-1) dated January 20, 2009
and the judgment and decree dated January 21, 2009 passed by the Civil
Judge can be challenged by the defendant- petitioner by filing an appeal
before the District Judge, Ludhiana. So far as the order of closing of the
evidence of defendant- petitioner vide order dated January 20, 2009 is
concerned, it can always be challenged under Order 43 Rule 1A CPC in the
main appeal which can be filed by the defendant- petitioner- Gram
Panchayat. The circumstances of this case indicate that certain disputed
questions of fact and law are required to be determined which exercise
cannot be taken up by this Court in the exercise of jurisdiction under Article
227 of the Constitution of India. As such, on account of availability of
alternative remedy, it is deemed appropriate and in the interest of justice to
relegate the defendant- petitioner to the alternative remedy of filing an
appeal before the District Judge, Ludhiana. The delay, if any, in filing of
the appeal, will be condoned by the District Judge. It will be open to the
defendant to file an application for amendment of the written statement,
production of evidence and raise a plea of collusion or fraud having been
C.R. No. 5912 of 2009 [4]
played. It will always be open to the defendant- petitioner to raise the plea
of non-availability of jurisdiction in the Civil Court when the property in
dispute is shown to be vesting in Gram Panchayat.