TMI Blog1964 (10) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... st a writ petition filed by the appellant, Devilal Modi, who is the proprietor of M/s. Daluram Pannalal Modi, under Article 226 of the Constitution. The appellant has been assessed to sales tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. He challenged the validity of the said order of assessment by a writ petition filed by him (No. 114/1961) in the High Court of Madhya Pradesh on the 25th April, 1961. The High Court dismissed his writ petition and by special leave, the appellant came to this Court in appeal against the said decision of the High Court. On the 8th March, 1963, the appellant's appeal by special leave was dismissed by this Court. Thereafter, the appellant filed the present writ petition in the same High Court on the 23rd April, 1963 (No. 129/1963). By this writ petition the appellant challenges the validity of the same order of assessment. The High Court has considered the merits of the additional grounds urged by the appellant on this occasion and has rejected them. In the result, this second writ petition filed by the appellant has been dismissed by the High Court on the 29th April, 1963. It is against this decision that the appellant has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It appears that at the hearing of the appeal before this Court, Mr. Trivedi for the appellant sought to raise two additional points, but he was not permitted to do so on the ground that they had not been specified in the writ petition filed before the High Court and had not been raised at an earlier stage. While refusing permission to Mr. Trivedi to raise the said points, this Court indicated what these points were. The first of these two points was that under section 19(1) of the 1958 Act only those sales could be reassessed which were chargeable to tax under that Act and the sales brought to tax under the impugned order were in respect of sale of sugar, a commodity the sale of which was not chargeable under the Act. The other point was that the penalty which had been imposed against the appellant by the impugned order under section 14 of the Act of 1950 was illegal inasmuch as the said Act had been repealed and the right to impose a penalty under it had not been saved by the saving section 52 of the 1958 Act. Since this Court had refused permission to Mr. Trivedi to raise these two additional grounds, it was observed in the course of the judgment that the Court did not expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of litigation twice over, because such a process would be contrary to considerations of fairplay and justice; vide Daryao and Others v. The State of U.P. and Others [1962] 1 S.C.R. 574. It may be conceded in favour of Mr. Trivedi that the rule of con- structive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred. In regard to orders of assessment for different years, the position may be different. Even if the said orders are passed under the same provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitions filed under Article 32 or Article 226. It was in that connection that this Court also pointed out that the appeal before the Court was in relation to an assessment levied for a different year, and that made the doctrine of res judicata itself inapplicable. Mr. Trivedi contends that in dealing with writ petitions, no distinction should be made between cases where the impugned order of assessment is in respect of the same year or for different years; and in support of this contention, he relied on the general observations made by this Court in the Amalgamated Coal- fields Ltd. [1963] Supp. 1 S.C.R. 172. In our opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition. As we have already mentioned, though the courts dealing with the questions of the infringement of fundamental rights must consistently endeavour to sustain the said rights and should strike down their unconstitutional invasion, it would not be right to ignore the principle of res judicata altogether in dea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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