The revision petition calls into question two concurrent judgments of the Courts below. The first is given by Civil Judge II Class, Bhakkar on 18-1-1983 while it was confirmed by the judgment and decree of the learned Additional District Judge, Bhakkar on 20-2-1983.
2. This was a suit for perpetual injunction with the prayer that the respondents who is the Thal Development Authority, hereinafter referred to as T.D.A. Be restrained from interfering in the possession of the suit-land and be also restrained from allotting this land to any other person.
3. It was said that the disputed land was allotted to the respondent in the year 1953 and he received its possession on 12-12-1953 That over the land, he spent Rs.30,000 for improvements and constructions. However, in the year 1956, T.D.A. Declared that the possession of the respondent was beyond the area allotted to him in 1953. After this claim by the T.D.A., the respondent filed the present suit.
4. The respondent filed the written statement and on the basis of the divergent pleas taken by the parties, two issues were framed and these are as follows:-----
5. The respondent examined his witnesses and produced the documents. When it was the turn of the petitioner to produce his evidence, he failed to do so despite two opportunities given by the trial Court and consequently, the trial Court proceeded to close his evidence while acting under Order XVII, Rule 3, C.P.C. Whereafter, one more witness was produced on behalf of the respondent/plaintiff and subsequently, the judgment and decree was passed on 18-I-1983.
6. The first appellate Court upheld the decision of the trial Court observing the sufficient opportunities allowed to the petitioner and his failure in this connection and also his failure to pay Rs.50 as costs, when the first opportunity was given to him.
7. In the written statement which is placed at page No.99 of the file of the trial Court, the T.D.A.
Explained that the possession taken by the plaintiff was beyond the area allotted to him. Exh.P.3. Is the Khasra Girdawari which is relied upon by the respondent. This reflected the following entry in column No.3 against the name of the Cultivator.
8. On record is placed an application made by the respondent on 18-4-1984 whereby, an amendment in the plaint was sought through the filing of the amended plaint. The learned trial Court through his judgment and decree. Dated 18-1-1987 did not refer to this fact specifically. In fact no issue had been framed on this alternate plea of the respondent and decree for permanent injunction was given restraining T.D.A. From interfering in the possession of the respondent. Thus, through such a decree, the plaintiff-respondent was to retain the possession of the property.
Although vide his alternative plea, he was offering to purchase the land which may have been in excess.
9. This Court has seen the order dated 8-7-1982 closing the evidence of the T.D.A. One finds that on 12-9-1982 and on 15-11-1982, the respondent was not able to produce his evidence and two adjournments were allowed to him when finally the arguments were heard on 13-1-1983 and the decree was passed on 18-1-1983. This shows that the Court took about 5 months in disposing of the suit after closing of the evidence of the respondent. This was against the spirit of the provisions of Order XVII, Rule 3 which reads as under:-- "Court may proceed notwithstanding either party fails to produce evidence etc.-- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessarily to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
The word "forthwith" may not mean the same day for the decision of the case but it does require a Court to observe a reasonable time after taking action under Order XVII, Rule 3, C.P.C. In deciding the case.
10. Section 74-A of the Thal Development Act, 1949 reads as follows:----- "74-A. A civil Court shall have no jurisdiction in any matter, which the Collector is empowered by this Act to dispose of and shall not take cognizance of the manner in which the Provincial Government, Board of Revenue, Collector or any other Revenue Officer exercises any power vested in him by or under this Act."
11. It was, therefore, essential for the Courts below to enquire whether the, civil Court in this case did have the jurisdiction.
12. The learned counsel appearing on behalf of the petitioner has pointed out that the lower formations of the agencies in connivance with the allottees cause loss to the Government in the matter of State Properties and Courts have-- now to take into consideration this factor while dealing with Government matters involving properties.
13. I agree with the learned counsel. On account of rampant corruption at the level of the lower formation, the State's interest is scarified. Invariably, collusive suits are filed which are not properly contested. This leads to decrees which provide legal basis for justifying the holding of Government property.
14. The Government lost this case on account of its own default. This is now frequent phenomena in cases involving Government property. Cases are lost because of a motive, vested interest, and mala fides whether resting with the Department or the lawyers who are entrusted briefs of-such Government matters. There is, thus, an urgent need for a curative action and a strict watch over Government litigation.
15. The Punjab Law Department appoints legal advisers and counsel to the Government Departments and agencies and approves counsel for purposes of Government litigation. The Solicitor Office which works under the Punjab Law Department was created for purposes of watching the Government litigation. The office of the Advocate-General is also meant to protect Government interest in litigation. Besides, there are statutes empowering statutory bodies to appoint their own legal counsel for looking after their litigation. There is, however, a need for proper co-ordination inter se these Departments in connection with the Government litigation and in making those accountable who wilfully or on account of whose negligence inaptitude or bias caused loss wastage to Government property. Government property is the State property and it is to be protected by every citizen being the property of the nation. Accountability can he commenced by taking this case as a sample and by holding an enquiry as to why it was not defended and also as to why there was supervisory lapse.
16. Courts of law are strictly to remain as adjudicatory forum in an adversoral system such as ours.
However, no Court or system can afford to overlook a patent case of connivance, collusion, conspiracy or negligence involving public interest. The Civil Courts are both Courts of law and equity. The term equity denoting the spirit and habit of fairness, trustfulness and right dealing. They also enjoy inherent powers under section 151 of the C.P.C. And, thus, they have the capacity of ensuring that the ends of justice are not defeated because of wilful or negligent acts on the part of those who, as custodians of Government property, are unable to protect it or were a party to a wrong.
17. Procedure is not to be followed perfunctorily nor can it be allowed to be used for abusing the powers of a Court. A Court has always the inherent power under section 151 of C.P.C. To secure the ends of justice and to prevent the abuse of its process. Whenever, a Court feels that its process was being abused it should immediately use all its powers including its inherent powers while acting in accordance with the principles of equity, justice and good conscience, in stopping the abuse of its process. Doing justice includes preventing a wrong and while doing so the procedure is to be understood as intending to secure the ends of justice. No provision of the Code is to be every regarded as trap for the litigants; as if a game of chess were being played in which the consequences were related only to the moves made during the game and where the playing of the game was its own end. The provisions of the Code are ultimately related to a fair trial on merits between the conflicting claims of the parties and all moves with their own fixed consequences are subservient to that purpose. The Court has to observe these moves and has to satisfy its conscience with respect to the fairness of these moves.
18. Therefore, in a case of patent and deliberate omission involving Government property a Court should not act as a mere adjudicator or an onlooker. It should assume the role of the keeper of the conscience of the public and protector of the public interest and in doing so it may take overt acts like summoning of responsible persons of the Department and requiring their presence while the case proceeds. This is imperative in situations where Government counsel avoids appearance or where there were doubts about their candour. What is being suggested is the taking of extra care for ensuring the presence of responsible agent of the Government or its agencies through a counsel or an official during the proceedings involving Government properties while the Court proceeded to administer justice in accordance with law inter se the parties.
19. After hearing both the sides, this Court is of the view that the judgment and decree of both the Courts below are the result of material irregularities, unsustainable in law. These are, therefore, set aside. The case is remanded to the learned District Judge, Bhakkar for its entrustment to the Senior Civil Judge, who may proceed afresh from the date when the petitioner had to produce the evidence. The petitioner is directed to ensure that his counsel appeared on the dates fixed by the Court otherwise, the petitioner will be responsible for its further failure.
20. Under these circumstances, the revision petition is accepted. But as it is an old case the trial Court is asked to dispose it of by the 30th of October, 1999 under report to the Deputy Registrar (Judi.) of this Court.
21. A copy of this judgment be sent to the Advocate-General, Punjab so that he may inform the concerned authorities including the Chief Secretary, Government of the Punjab about the views taken in paragraphs 13 and 14 of this judgment.