SHRIMATI MASSAN DEVI Vs. UNION OF INDIA

JUDGEMENT

(1.) NOT satisfied with the award of the Special Land Acquisition Collector passed under the Requisitioning and Acquisition of Immoveable Property Act (XXX of 1952) (hereinafter to be referred to as the 'act') the appellant herein, filed a civil writ petition in this Court praying for a direction to the authorities to appoint an Arbitrator under Section 8 (l) (c) of the Act preliminary objection was raised regarding the maintainability of the petition in view of the alleged earlier dismissal of a similar petition of the petitioner being Civil Writ Petition No. 322 of 1983 on March 17, 1983. It was contended on behalf of the writ petitioner that as the earlier petition had not been dismissed on merits, there was no bar for them to file a fresh writ petition. The learned Single Judge found that as the earlier writ petition had been dismissed in terms of Order 17, Rule 3 of the Code of Civil Procedure 1908 (for short the 'code) the subsequent petition filed by the appellant was not maintainable.

(2.) IT is not disputed that Civil Writ Petition No. 322 of 1983 filed by the petitioner alongwith others was dismissed holding:

(3.) IN order to attract the provisions of Order 17 Rule 3 of the Code, the Court must be satisfied that the time had been granted to a party at his instance and such party had committed default in compliance of the directions for which the time had been obtained and if on the adjourned date the party is present in Court, the matter must be decided forthwith. This rule does not justify either striking out of the; defence or the dismissal of the petition for non prosecution. Under such circumstances a duty is cast on the Court to decide the lis forthwith on merits and not resort to a short circuit manner of dismissing a petition either for default or for non prosecution. The words "proceed to decide the suit forthwith" mean that decision should be given on the same day on merits by taking note of the default committed. Even otherwise it would transpire that the rule is permissive and not mandatory as is evidence from the words "the court may proceed". The stringent provisions of Rule are not desired to be applied particularly when it may amount to non suiting a party who had preferred claim with respect to huge property allegedly acquired under the provisions of the Act and the person deprived of the property was only preferring a claim with regard to the quantum of compensation.