JUDGMENT
R.P. Sethi, J.
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(1)(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:
“The petitioners are unable to furnish the particulars of the objections which have been received by the Special Land Acquisition Collector, Pathankot. As such, the petition is dismissed for want of prosecution.”
Order 17, Rule 3 of the Code provides:
” 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 necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them, is, absent, proceed under Rule 2.”
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.
4. The earlier dismissal of Civil Writ Petition No. 322 of 1987 cannot either be held to be a bar for the maintainability of the fresh petition on the general plea of res-judicata. It has been held by the Supreme Court in Pujari Bai v. Madan Gopal, A.I.R. 1989 S.C. 1764 that when a petition after contest is disposed of on merits by a speaking order the question decided in that petition would operate as res-judicata, but not a dismissal in limine or dismissal on the ground of latches or availability of alternative remedy. In B. Prabhakar Rao v. State of Andhra Pradesh,” A.I.R. 1986 S.C. 210, It was held that dismissal of a writ in limine may inhibit the discretion of the court but not jurisdiction. A Full Bench of this Court in Teja Singh v. Union Territory of Chandigarh (1982) 84 P.L.R. 160 held that when a petition is dismissed after contest by passing a speaking order, then the judgment delivered would operate as res-judicata in any other proceeding but not otherwise.
5. The facts in this case clearly show that the writ petition filed by the appellant was dismissed mainly on the ground that his earlier petition had been dismissed under Order 17, Rule 3 of the Code and a fresh petition was not maintainable. We are convinced that the earlier petition had not been dismissed by the Court under Order 17, Rule 3 of the Code and the learned Single Judge was therefore not justified in dismissing the subsequent petition filed by the appellant on that ground.
6. It has been alternatively argued that as the subsequent petition was hit by the general principles of res-judicata the same deserved dismissal. There is no denial of the fact that the principle of res-judicata is found on equity, justice and good conscience and is based partly on the maxim of Roman Jurisprudence “interest reipublicae ut sit finis litum” which means that concerns the State that there be an end to law suits and partly on maxim memo debet bix vexari pro una et eadem causa which means that no man should be vexed twice over for the same cause. The principle founded on ancient precedents has been held to have been dictated by the wisdom and is applicable for all times. This principle would, however, not deprive a person from getting adjudication on merits of his claim. In State of Uttar Pradesh and Anr. v. Nand Kishore Tandon, A.I.R. 1977 S.C. 1267 it was held that one of the tests in deciding whether the doctrine of res-judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if the said doctrine is not applied. The apprehension of the Supreme Court to avoid two inconsistent decrees pre-supposed the adjudication of the rights of the party on merits. The general principle of res-judicata has been incorporated in Sections 10,11,47, Order 2, Rule 2 and Order 23 of the Code which has been made applicable in different situations. The facts of this case clearly show that none of the aforesaid provisions are applicable to debar the appellant from getting his claim adjudicated on merits.
7. Applying the tests, noted herein above, we have come to the unequivocal conclusion that the learned Single Judge was not justified in dismissing the writ petition filed by the appellant allegedly on the ground of his earlier petition having been dismissed in terms of Order 17, Rule 3 of the Code. After setting aside the judgment of the learned Single Judge was feel inclined to dispose of the petition ourselves instead of remanding the case. We have been persuaded to take such a recourse in view of the fact that the appellant after being deprived of his property has continuously been in litigation for the last more than 23 years. The prayer made by the petitioner in his petition is only for issuance of a direction to the respondents to appoint Arbitrator in terms of Section 8(1)(c) of the Act. We are however, not inclined to quash the award at this stage. After the acquisition of the property and on the demand of the petitioner-claimant, the respondents were under an obligation to perform their statutory duty by appointing an Arbitrator. No cause has been shown for their failure to take action at the request of the appellant so far as his prayer for appointment of the Arbitrator is concerned. The respondents being under a legal obligation to perform their statutory duty cannot be permitted to evade their performance or show reluctance in the performance of their legal obligation.
8. Under these circumstances, the appeal is allowed by setting aside the judgment of the learned Single Judge. Consequently, a command is issued to the respondents with a direction to appoint Arbitrator under Section 8(1)(c) of the Act regarding claim of the petitioner within a period of two months. The Arbitrator so appointed may adjudicate the claim of the appellant in accordance with the provisions of the law. The appellant is held entitled to costs of Rs. 500/-.