TMI Blog1977 (4) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... the action taken against him was mala fide. It was dismissed on October 30, 1959,' The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 1960, in which he challenged the order of his dismissal on the ground, inter alia, that he had been appointed by the Inspector General of Police and that the Deputy Inspector General of Police was not competent to. dismiss him by virtue of the provisions of article 311 (1) of the Constitu- tion. The State of Uttar Pradesh traversed the claim in the. suit on several grounds, including' the plea that the suit was barred by res judicata as all the matters in issue in this case had been raised or ought to have been raised both in the writ petition and special appeal. The trial court dismissed the suit on July 21, 1960, mainly on the ground that the Deputy Inspector General of Police would be deemed to be the plaintiffs appointing authority. It however held that the suit was not barred by the principle of res judica- ta. The District Judge upheld the trial court's judgment and dismissed the appeal on February 15, 1963. The respond- ent preferred a second appeal which has been allowed by the impugned judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated such a course of action as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v. -Mallard [1947] 2 All. E.R. 255 at p, 257. I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could; have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in re- spect of them. This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata ,by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has .sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle. These simple but efficacious rules of evidence have been recognised for long, and it will be enough to refer' to this Courts decision in Gulabchand Chhotalal Parikh v. State of Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the incompetence. of the Deputy Inspector General of Police was raised in the earlier writ petition filed by the plaintiff in the High Court: under Article 226 of the Constitution and the parties were never at issue on it and the High Court never considered or' decided it. I think it is competent for the plaintiff to raise such a plea in the subsequent 'suit and bar of res judicata will not apply. We have gone through these cases. Janakirama lyer's was a case where the suit which was brought by defendants 1 to 6 was withdrawn during the pendency of the appeal in the High Court and was dismissed. In the mean time a suit was filed 'in a representative capacity under Order 1 rule 8 C.P.C. One of the defences there was the plea of res judicata. The suit was decreed. Appeals were filed against the decree, but the High Court dismissed them on the ground that there was no bar of res judicata When the matter came to this Court it was fairly conceded that in terms section 11 of the Code of Civil Procedure could not apply because the suit was filed by the creditors defendants 1 to 6 in their repre- sentative character and was conducted as a representative suit, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground, but that was not allowed by this Court and the writ petitton was dismissed. Another writ petition was filed to challenge the levy of the tax for the subsequent periods on grounds distinct and separate from those which were rejected by this Court. The High Court held that the writ petition was barred by res-judicata 'because: of the earlier decision of this Court. The matter came up in appeal to this Court in the second case. The question which directly arose for decision was whether the principle of constructive res judicata was applicable to petitions under articles 32 and 226 of the Constitution and it was an- swered as follows,-- It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct, and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of public policy to which we have just referred. While taking that view, Gajendragadkar C.J., tried to ex- plain earlier decision in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara [1963] Supp. 1 S.C.R. 172.and categorically held that the principle of constructive res judicata was applicable to writ petitions also. As has been stated, that case was brought to the notice of the High Court, but its signifi- cance appears to have been lost because of the decisions, in Janakirama Iyer and others v.P.M. Nilakanta lyer (supra) and Gulabchand's ease (supra). We have made a reference to the decision in Janakirama Iyer's case which has no bearing on the' present controversy, and we may refer to the deci- sion in Gulabchand's case as well. That was a case where the question which specifically arose for consideration was whether a decision of the High Court on merits. on a certain matter after contest, in a writ petition under article 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same par- ties. After a consideration of the earlier decisions in England and in this country, Raghubar Dayal J., who sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to. raise an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken. As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi's case (supra), .it was not necessary to reiterate it in Gulabchand's case (supra) as it did not arise for consid- eration there. The clarificatory observation of this Court in Gulabchand's case (supra) was thus misunderstood by the High Court in observing that the matter had been left open ' by this Court. It is not in controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the High Court, that by virtue of clause (1) of article 311 of the Constitution he could not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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