TMI Blog1964 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaint these conditions were referred to as Forest Auction Rules. On April 7, 1948, the appellant presented an application to the Baria State stating therein that certain brokers owed money to the various contractors mentioned in the application and praying that they be restrained to pay the amount due to the contractors until further orders and that those brokers and contractors be also restrained from directly removing the contractors' jungle goods stored in the godowns at Piplod, Baria and Limkheda without the permission of the State Government. It was further mentioned in the application that if those contractors would arrive at an arrangement with him and carry out the vahivat, be would do the needful in that behalf. On this application, it appears, the State Government issued notices to the contractors stating therein that the surety, i.e., the appellant, had moved, under cl. 8 of the Conditions of the Auction Sale of jungle goods for attachment of their goods that be lying in the godowns at Baria, Piplod and Limkheda in the State and the debts or other movable or immovable property belonging to them and for delivering the same to him and directed the contractors not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had moved the Revenue Officers to recover the said amount from the appellant who was the surety as an arrear of land revenue. The revenue authorities took steps to attach the immovable properties of the appellant and that led the appellant to present that petition. The contentions for the State of Bombay and the Mamlatdar in the writ proceedings were : 1.The petition was misconceived as not maintainable and there was no case for the issue of a writ of mandamus because the proper course for the appellant was to redress his so called grievance by proceeding according to the ordinary law through the Municipal Courts. 2.There were no Baria State Forest Auction Rules. What the Baria State Authorities laid down were the conditions of such auction sales and the appellant's reference to those conditions as rules was not correct. 3.The contractors had to furnish a surety who also had to execute a separate and independent agreement with the State in the Form approved by it. The appellant stood surety for the contractors and executed the necessary agreements. 4.The said agreements stipulated three important conditions : (i) that the surety will pay the installment amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t treasury and the appellant was aware of that slight modification in the procedure. 10.At a meeting convened by the Divisional Forest Officer, Panchmahals, Godhra, on August 1, 1948, the appellant was present and it was decided that the contractors be permitted to remove the material on payment of the price of the materials sold. 11. It was denied that as a result of the alleged action of the Forest Officers, the petitioner's security was considerably disminished and the eventual remedy of the petitioner against the contractors was very much impaired and the petitioner was discharged from his suretyship in respect of the said contracts. The High Court dismissed the writ petition on July 22, 1952 holding that there was no substance in the contention that the petitioners had been discharged from their liability as sureties. The sole basis on which the contention was raised was that the contractors were permitted by the State to sell their properties which were under attachment contrary to the terms of the attachment, in view of the sales being held without the knowledge and consent of the appellant. The High Court held that it was a wrong assumption of the appellant tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities, without asking the plaintiff or without his consent, allowed the said contractors to remove and sell their respective teak and sundry goods which were taken in attachment and thus behaving in contravention of the attachment made in his interest and put an end to his security and that according to law the plaintiff thus became discharged of liability as surety for the said contractors. Another reason for his alleged discharge from liability was alleged to be that even fresh sureties had been obtained from some contractors. It was also mentioned in the plaint that the appellant had to make a petition to the High Court in order to prevent his property from being sold and that he had been informed that the said petition had been dismissed on the ground that he could lawfully get his reliefs in the Civil Court. On the above facts the appellant prayed inter alia as follows 1. It may be declared that have become is charged from all liability as surety for the contractors mentioned in para 2 of this plaint and a decree may be passed against the defendant No. 2 and defendant No. 1 herein and their servants, officers and agents, in the form of a permanent injunction prohibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor attached under condition No. 8. He further ordered issue of an injunction restraining the State from enforcing the liability for the amount in excess of the amount declared to be due from the appellant. The appellant's application for leave to file an appeal under cl. 15 of the Letters Patent of the Bombay High Court was rejected. Thereafter, the appellant filed this appeal after obtaining special leave from this Court. Mr. Desai, for the appellant, has urged two points. The first is that a decision in a writ application under Art. 226 for the issue of a writ of mandamus does not operate as res judicata in a regular suit subsequently filed for a declaration of the plaintiff's rights and for the issue of an order of injunction against the defendant. The other is that the doctrine of constructive res judicata cannot be applied when the dispute was first decided in a writ petition and is to be later decided in a regular suit. It has been said that it would be very dangerous to hold that the decision in the writ application operates as res judicata in the regular suit even if identical reliefs on identical grounds were prayed for in a writ petition, with those pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while in the present suit the contention with respect to the cession of his liability as a surety was based on the auction rules. The distinction sought to be made has no substance. It is denied in the reply affidavit filed on behalf of the respondent in the writ petition that there were any Baria State Forest Auction Rules. We have not been referred to any rules, In fact, when we asked for the rules, we were provided by learned counsel for the appellant with a booklet by the name 'Conditions for the Auction Sale of Forests'. Further, the order of the High Court on the 'writ petition mentions in the early part of the order : It would appear that the Baria State had auctioned the teak wood trees ... on the terms and conditions contained in the said Forest Auction Rules. It may be said that these conditions for the auction sale of forests have been referred to sometimes as rules, probably in view of their binding nature. It cannot therefore be disputed that if the decision which had been given in a writ petition had been given in a regular suit that decision would have operated as res judicata in the later suit. The question which arises for consideration is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not refuse to issue the appropriate writ once it was shown that a fundamental right had been infringed, it was said, at p. 589 : and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under Art. 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. If, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under Art. 32. In this connection, reference may be made to what was said, about the contention that a previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision in a previous suit bars a later suit on the ground of res judicata. On the other hand, it is contended for the respondent that the doctrine of res judicata is not confined to the provisions of S. II C.P.C. but is of a general application on grounds of public policy, that the fact that the proceedings on a writ petition are conducted summarily is no reason to reduce the value of the decision arrived at in those proceedings especially when a solemn decision is given after affording an opportunity to the parties to put before the (1) [1962] Supp. 1 S.C.R. 206. Court all the relevant matters and after fully considering the merits of the matter in controversy and that it would be really dangerous if it be held that a decision so arrived at in proceedings in a writ petition does not bar a subsequent suit for the decision of the same matter in controversy. It is pertinently pointed out that if the writ application presented by the appellant had been allowed by the High Court on a finding of fact that the liability of the appel- lant as a surety stood discharged and a writ of prohibition had been issued against the State as prayed for by the appellant in the writ proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is relied upon as res judicata in another Court. Of course, the essential conditions that the judgment be directly upon the same point which is for determination in the subsequent suit and be between the same parties are also to be satisfied. It is obvious that the judgment of a Court of exclusive jurisdiction is to be treated as res judicata upon the same matter in another Court which will not be a Court having jurisdiction over the matter. It would be helpful to consider how the various Codes of Civil Procedure have dealt with the question of the second suit being barred on account of an earlier decision by a Court. The first Code of Civil Procedure was Act VIII of 1859. Its section 1 gave jurisdiction to the civil courts over all suits of a civil nature with the exception of those of which cognizance was barred by any Act of Parliament or by any Regulation of the Codes of Bengal, Madras and Bombay or by any Act of the Governor General of India in Council. Since then Civil Courts had jurisdiction to try all suits of a civil nature except those whose cognizance was barred by any enactment in force. Section 2 provided that the Civil Courts would not take cognizance of any sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and it is perfectly consistent with the second section of the Code of Procedure under which this case was tried.... In Soorjomonee Dayee v. Suddanund Mohapatter(4) the Privy Council held that the term 'cause of action' in s. 2 of Act VIII of 1859 be construed with reference rather to the substance than to the form of action, and that even if such an interpretation of the expression be not correct, the provisions of S. 2 of the Code would by no means prevent the operation of the general law relating to res judicata and observed at p. 218 This law has been laid down by a series of cases in this country with which the profession is familiar, and has probably never been betterlaid down than in a case which was referred to in the 3rd volume of Atkyns (Gregory v. Molesworth), in which Lord Hardwicke held that where a question was necessarily decided in effect though not in express terms between parties to the suit, they. could not raise the same question as between themselves in any other suit in any other form; and that decision has been followed by a long course of decisions, the greater part of which will be found noticed in the very able notes of Mr. Smith to the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it would be improper if a judgment of an inferior Court was to operate as res judicata in a suit in a superior Court, and observed at p. 203 By taking concurrent jurisdiction to mean concurrent as regards the pecuniary limit as well as the subject matter, this evil or inconvenience is avoided; and although it may be desirable to put an end to litigation, the inefficiency of many of the Indian Courts makes it advisable not to be too stringent in preventing a litigant from proving the truth of his case. It appears to their Lordships that if this case had arisen before the passing of Act X of 1877, the High Courts in India would have rightly held that the decision of the Extra Assistant Commissioner in the first suit was not conclusive as to the amount of the principal sum due on the bond. and, after quoting s. 13, said : The intention seems to have been to embody in the Code of Procedure, by sects. 12 and 13, the law then in force in India, instead of the imperfect provision in sect. 2 of Act VIII of 1859. And, as the words of the section do not clearly shew an intention to alter the law, their Lordships do not think it right to put a construction upon them which would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature intended to bar the application of the general principles of res judicata to suits when the previous decision is arrived at in proceedings other than suits. The legislature was providing in the Code of Civil Procedure for the trial of suits over which the civil Court was given jurisdiction under the provisions of the Code. The preamble of the Code of 1908 reads Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows :- The Code was dealing with procedure of the civil Courts only and had therefore not to consider what would be the effect on the trial of suits in view of the provisions of other enactments or of general principles of res judicata or of any other kind. It had to restrict its provision about res judicata to the effect of decisions in a civil suit on a subsequent civil suit and therefore enacted s. 11 in the form in which we find it. It made one of the condition-, for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a Court which be competent to try the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in an administration suit could operate as res judicata with respect to matters which had been decided in the subsequent administration suit instituted for decision of certain matters left open in the previous suit. It was said at p. 193 : The question as to the perpetuity had been definitely and properly before him on the former hearing, and was, in fact, decided without any reservation, as is made plain by the terms of the judgment itself, which show that the determination of the dispute as to the perpetuity was the foundation of the whole judgment ... It is not, and indeed it cannot be, disputed that, if that be the case, the matter has been finally settled between the parties, for the mere fact that the decision was given in an administration suit does not affect its finality : see Peareth v. Marriott (22 Ch. D. 182). The appellate Court, however, took a different view, and regarding the question as still open decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by s. 11 of the Code of Civil Procedure. and then reference was made to what has been said in Ram Kirpal Shukul v. Musamma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of res judicata based on public policy and applied from ancient times. In Sheoparsan Singh v. Ramnandan Singh(1) it was said But in view of the arguments addressed to them their Lordships desire to emphasize that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. 'It hath been well said,' declared Lord Coke, 'interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law' : 6 Coke, 9a. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus : If a person though defeated at law sue again he should be answered, 'You were defeated formerly. This is called the plea of former judgment. [See the Mitakshara (Vyavahara), bk. II, ch. 1 edited by J. R. Gharpure, p. 14, and the Mayuka, ch. 1., s. 1, p. 11 of Mandlik's edition]. And so the application of the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same matter. In Daryao's Case([1962] 1 S.C.R. 574) this Court had again dealt with the question of the applicability of the principle of res judicata in writ proceedings. The matter was gone. through very exhaustively and the final conclusions are to be found at p. 592. We may summarise them thus : 1. If a petition under art. 226 is considered on the merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. 2. It would not be open to a party to ignore the said judgment and move this Court under art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. 3. If the petition under art. 226 in a High Court is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under art. 32. 4. Such a dismissal may however constitute a bar to a subsequent application under art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained. The Court also said earlier at p. 585 In other words, an original petition for a writ under Art. 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Art. 226. It can be said with equal force that a regular suit for the determination of the matter which had been decided on merits by the High Court or this Court on a writ petition cannot be given the status of a de facto appeal against the order of the High Court or of this Court. A solemn declaration and order by the Court in its extra-ordinary jurisdiction is not to be set at nought by a Court of ordinary jurisdiction whose decisions are subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of or against a matter raised for decision in a writ petition cannot be urged in the proceedings on it. It is true that the jurisdiction of the civil Court and the High Court or this Court cannot be said to be Co-extensive, but it is plain that the civil Court, in the exercise of its jurisdiction, is subject to the appellate or revisional jurisdiction of the High Court and this Court. We do not consider the reasons for holding that a decision in a writ-petition cannot operate as res judicata in a subsequent regular suit to be sound and are of opinion that the Punjab Case has been wrongly decided. On the other hand, the Bombay High Court has held in Manahem v. Union of India( ) that a decision on merits in a writ petition would operate as res judicata in a subsequent suit. As a result of the above discussion, we are of opinion that the provisions of s. 11 C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly and substantially in issue has been directly and substantially in issue in a former suit. To invoke this doctrine, the section lays down many conditions. The most essential condition is that the matter in question should have been directly and substantially in issue in a former suit. The expression suit has not been defined in the Code, but S. 26 thereof says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. It is not argued that an application under Art. 226 of the Constitution is a suit within the meaning of s. 26 or S. 11 of the Code. It follows, and indeed it is not disputed, that s. 11 of the Code does not bar the appellant from raising the question of the discharge of his suretyship again in the present suit. But it is said that under the general principles of res judicata the Court would be barred to try his suit on the said issue. When the Code of Civil Procedure enacted s. 1 1 prescribing precisely when an earlier decision would be res judicata in a suit, it is not open to invoke the general principles of res judicata in the context of a subsequent suit, though the conditions laid down in the section we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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